THE ADVOCATE 23
VOL. 79 PART 1 JANUARY 2021
litigants’ disinclination to pay lawyers to give advice they do not wish to follow.
Anecdotal observations (difficult to measure in statistical terms) may
lead some to conclude that this disinclination is often motivated by a refusal
to accept the principles underlying our family law rather than the cost of litigating.
The problem posed by self-represented litigants in family proceedings
is very real, but providing pro bono legal services to litigants of that ilk
is likely to make the problem worse, not better, if nothing else because it
would subsidize conflict (why settle if fighting is free?).
Of course, lawyers should be encouraged to do more pro bono work. However,
Justice Abella is correct in describing this admonition as part of our
“beloved old standards in the ‘access to justice’ repertoire”35—i.e., as one of
those tired refrains that give a misleading sense that something is being done
to address the fundamental core of the problem. Even if our profession were
to take up that mantle, this alone would never be sufficient to stem the tide
of reasons for the ever-increasing cost of litigation. In fact, the rising cost (in
time and effort) of judicial decision making would deter rather than encourage
pro bono representation for fear of getting caught up in quagmires from
which there can be no respite without abandoning the case. The proof is in
the pudding: the number of self-represented litigants is still increasing
despite persistent admonitions to our profession over the past decades to
provide more services for free. One must conclude that these admonitions
have not improved access to justice and cannot be expected to do so.
In the final analysis, we all know (instinctively, at least) that “no stone
unturned” justice cannot be justified in all areas of law. Most employment
cases involve amounts that do not justify the full weight of the procedures
mandated by the court rules. Most construction cases involve mountains of
documents that make it impossible to implement “no stone unturned” justice
without causing the cost of any given construction case to exceed what
is at issue. We should be concerned about this and work towards targeted
solutions that may involve the devolution of various issues to cheaper
administrative proceedings and/or specialized tribunals (i.e., improving the
effectiveness of the process) and causing the law to become less discretionary
and therefore less fact-intensive. For most people, family assets
should be divided with a meat cleaver rather than with precision instruments.
To some degree, this is a repeat of the history of administrative law
on the extent to which judicial decision making vested in courts of original
jurisdiction can and should be delegated to statutory tribunals (where justice
can be meted out in a hopefully more efficient manner).
There is also a realization that the constitutional mandate vested in courts
of original jurisdiction is becoming more complex and difficult because of