AWARD WINNING EXPERIENCE - CATASTROPHIC INJURY LAW
"All the chronic problems that we face today - environmental pollution, to governmental waste and inefficiency, to an over-complicated, inequitable health care system - can be solved through quality management ... There are entire worlds of endeavor that scarcely have been touched by the quality process, including education, and the practice of law."
Inaccessible justice for victims as a result of disproportionately complex and expensive legal system:
Typically a seriously injured person will risk losing his or her family home as a result of adverse legal costs if he or she wishes to see the injury lawsuit through a trial in the Superior Court. In recent years, there are some insurance products to help ease this risk, but these products are very expensive to the injured population to cover the risks adequately. The demand for these products is created by an excessively expensive civil system, and such a demand does not justify the status quo. Our civil system has been repeatedly acknowledged by many authorities as broken including the Supreme Court of Canada in Hryniak, and the final report of the national Action Committee on Access to Justice in Civil and Family Matters.
In our experience, the main reasons which compound the complexity and expense of the system include improper "expert" evidence, as discussed under other pages of our website, and the unnecessarily complex other rules of evidence and procedures. Much has been debated and studied for decades without significant success in improving accessibility, or quality.
However, there is one potential and promising piece of the puzzle: the experience at the Financial Services Commission of Ontario ("FSCO") from 1990 to 2016. The rules of evidence in its arbitration proceedings are much simpler and swifter than the rules of evidence in the Superior Court. The issues adjudicated at FSCO include very significant claims and its largest cases include multi-million dollar disputes. An important observation is that the quality of decision making at FSCO generally garnered respect by leading counsel for both sides, victims and insurers alike, as expressed at meetings of the FSCO Counsel Forum among other things. In other words, there was clearly no undue quality issue in its decision making. In our view, this is an evidence-based confirmation that simplified rules of evidence, even in serious disputes, do not lead to a lower quality of justice for participants. To the contrary, when coupled with reduction in other related costs (such as length of proceedings, preparation and handling costs by legal representatives), simplified rules at FSCO led to a more affordable process and an experience superior to that of the traditional court system in delivering injury justice.
FSCO was a unique experiment by successive governments for a generation (over 25 years), motivated by the goal of expeditious delivery of enhanced auto accident benefits commencing in 1990. This experience ought not be forgotten. It should be examined and considered in future court reforms to help keep costs down and improve accessibility in civil justice for the vast number of ordinary Canadians.
(It should be noted that FSCO had separate mediation and arbitration units. From about 2010, the government froze the hiring of mediators despite its continuing receipt of millions of dollars in mediation fees. Over several years, this significantly contributed to a large mediation backlog. This backlog was one of many reasons leading to the creation of a new dispute resolution scheme, this time at the License Appeal Tribunal ("LAT"). The change to LAT from FSCO for adjudication, however, does not detract from the above-cited positive experience with the quality of justice - by way of simpler FSCO proceedings.)
Inaccessible justice for victims as a result of disproportionately complex and expensive legal system:
Typically a seriously injured person will risk losing his or her family home as a result of adverse legal costs if he or she wishes to see the injury lawsuit through a trial in the Superior Court. In recent years, there are some insurance products to help ease this risk, but these products are very expensive to the injured population to cover the risks adequately. The demand for these products is created by an excessively expensive civil system, and such a demand does not justify the status quo. Our civil system has been repeatedly acknowledged by many authorities as broken including the Supreme Court of Canada in Hryniak, and the final report of the national Action Committee on Access to Justice in Civil and Family Matters.
In our experience, the main reasons which compound the complexity and expense of the system include improper "expert" evidence, as discussed under other pages of our website, and the unnecessarily complex other rules of evidence and procedures. Much has been debated and studied for decades without significant success in improving accessibility, or quality.
However, there is one potential and promising piece of the puzzle: the experience at the Financial Services Commission of Ontario ("FSCO") from 1990 to 2016. The rules of evidence in its arbitration proceedings are much simpler and swifter than the rules of evidence in the Superior Court. The issues adjudicated at FSCO include very significant claims and its largest cases include multi-million dollar disputes. An important observation is that the quality of decision making at FSCO generally garnered respect by leading counsel for both sides, victims and insurers alike, as expressed at meetings of the FSCO Counsel Forum among other things. In other words, there was clearly no undue quality issue in its decision making. In our view, this is an evidence-based confirmation that simplified rules of evidence, even in serious disputes, do not lead to a lower quality of justice for participants. To the contrary, when coupled with reduction in other related costs (such as length of proceedings, preparation and handling costs by legal representatives), simplified rules at FSCO led to a more affordable process and an experience superior to that of the traditional court system in delivering injury justice.
FSCO was a unique experiment by successive governments for a generation (over 25 years), motivated by the goal of expeditious delivery of enhanced auto accident benefits commencing in 1990. This experience ought not be forgotten. It should be examined and considered in future court reforms to help keep costs down and improve accessibility in civil justice for the vast number of ordinary Canadians.
(It should be noted that FSCO had separate mediation and arbitration units. From about 2010, the government froze the hiring of mediators despite its continuing receipt of millions of dollars in mediation fees. Over several years, this significantly contributed to a large mediation backlog. This backlog was one of many reasons leading to the creation of a new dispute resolution scheme, this time at the License Appeal Tribunal ("LAT"). The change to LAT from FSCO for adjudication, however, does not detract from the above-cited positive experience with the quality of justice - by way of simpler FSCO proceedings.)