THE ADVOCATE 17
VOL. 79 PART 1 JANUARY 2021
THE HARSH REALITIES OF ACCESS
TO JUSTICE ISSUES
By Francis Lamer
Much has been written recently about concerns over access
to justice, in the sense of access to a cost-effective process
for resolving disputes. We have a process aimed at resolving
disputes in accordance with the law, but does one truly
have access to that fundamental component of the rule of law if the judicial
process is so expensive that only the few can avail themselves of their day
in court? Being forced into insolvency in the pursuit of justice amounts to
having no access at all.
These concerns come from the very top of our judicial system. They
express a reality we all know to be true without any need for empirical
proof. One example is an April 2020 op-ed penned by Justice Abella stating
that the civil justice system is in dire need of replacement with “a whole
new way to deliver justice to ordinary people with ordinary disputes and
ordinary bank accounts” and encouraging all to “be bold and acknowledge
that the public has judged our relationship with incremental change to have
been largely Sisyphean”.1 But any decision to replace the existing judicial
process with something “new” (and, one would assume, radically different)
should be undertaken carefully and preceded by a proper diagnosis as well
as a reasonable assurance that the proposed intervention will in fact provide
a cure. Regrettably, Justice Abella’s op-ed offers no hint of what that
“whole new way to deliver justice” might look like.
More recently, former chief justice Beverley McLachlin described our
justice system as “just” (in the sense of reliably correct) but “too expensive,
too slow and too unwieldy to meet the needs of most Canadians”.2 She concluded
that “we need a complete overhaul of the justice system”—although
she, unlike Justice Abella, implicitly conceded that the problem is sufficiently
complex and difficult that it requires more than just a bold outlook,
but also “data, planning and money” to consider “innovative solutions”.
Barriers to access to justice can be considered from two perspectives. The
first is the existing system’s ability to handle the workload that the system
is mandated by law (including Supreme Court of Canada decisions) to
assume. One cannot fault the judicial system for continuing to do its best to