How “Justice For All” Has Become Tribunals For Most
Most of us believe that justice means – if we are involved in some sort of legal dispute that we are entitled to our “day in court”. Historically, a trial by a jury of one’s peers has been a cornerstone of justice within the democratic tradition in common law countries such as Canada, the United States and Britain.
Over the past several decades, however, the right to one’s day in court has been continually eroded resulting in a serious access to justice issue. Lack of adequate government funding has led to backlogs and delays creating significant frustration for litigants and giving effect to the phrase “justice delayed equals justice denied”. Judicial vacancies remain unfilled for prolonged periods of time, court houses are slow to be built to meet the growing population of communities, courts are poorly staffed with necessary administrative staff, to name a few.
A recent Supreme Court of Canada ruling establishing strict time limits for dealing with criminal cases has resulted in civil disputes being given less priority, and taking more time to reach the courtroom.
For tort claims involving car accidents, we have written on our blog about the barriers to a successful court actions– but in particular, the threshold and huge “deductibles” from damages make these cases not only high risk, but effectively deprive one of compensation that a “jury of one’s peers” finds to be reasonable.
What many people may be unaware of is the extent which governments are forcing many types of claims into other forums, effectively barring access to the courtroom door. This is not necessarily new – for example, the right to sue for work injuries was removed over a hundred years ago with the formation of workers’ compensation boards. Union members who are fired from their jobs cannot access the courts, but must pursue their rights through grievance and arbitration procedures.
More recently in Ontario we have seen the right to sue for motor vehicle no-fault benefits taken away, forcing disputes to be adjudicated by the License Appeals Tribunal (LAT), a consumer protection Tribunal – which has not had a history of being particularly consumer-friendly (over 83% of consumers lose have lost their cases before the LAT). A charter challenge to this change was denied recently. In condominium law, a new tribunal is being set up to handle disputes involving $25,000 or less. There will soon also be a mandatory interim adjudication process for construction lien matters, effectively moving these disputes outside of the courts.
Many contracts, including those for consumers, contain arbitration clauses that force any disputes into a private arbitration process that is usually cost-prohibitive for individual consumers, thus denying a right to sue. In the United States, the Supreme Court has upheld the validity of these clauses effectively denying the use of class actions to remedy significant corporate wrongs.
The importance of access to the courts for a functional democratic society is eloquently explained by consumer advocate and lawyer Ralph Nader in his article Restricting People’s Use of Their Courts
Undoubtedly there is a similar trend towards diminishing the role of our public courts in Canadian society and in Ontario.
The concerns such a trend raise are multifaceted. There are greater risks that large industry players can influence the decision making process in Tribunals. This was an oft-cited criticism of the recently abolished Tarion program and the Ontario Municipal Board which have both been seen to be too developer friendly. The Condominium Tribunal and the interim adjudication process related to construction lien matters are similarly vulnerable to such criticism as there will likely be marked inequity between the parties in these processes.
This issue is exacerbated if there is a lack of transparency, which there often is, in the appointment process of decision makers to these tribunals. The public lost the benefit of many well qualified and well versed adjudicators from the former accident benefits tribunal – the Financial Services Commission (FSCO) – when accident benefits disputes were transferred to the LAT. No lawyer would disagree that the law regarding accident benefits is extremely complex.
An added concern that is raised by the trend towards tribunals is lack of procedural safeguards to ensure fairness in the process. By example such tribunals may have the authority to require that any disputes be dealt with in writing. This process deprives the parties of an important opportunity to make their case in person and confront their opponent in order to test credibility on issues critical to the decision making process.
As we have seen with the transfer of accident benefits disputes from FSCO to the LAT, changes in the adjudicators involved in making decisions in these matters can change on the whims of government and cannot provide the assurance of independence guaranteed to judges of the court. Sometimes litigants are also denied their costs before a tribunal in bringing the matter forward, as is the case with the Accident Benefits disputes before the LAT. Many accident benefits claimants are being denied access to justice as a result, because they lose the assistance of a lawyer who has knowledge of the Statutory Accident Benefits Schedule (SABS), and injured victims are simply unable to fight the insurers on their own.
Although our courts are still conferred with the power to conduct a judicial review of most tribunal decisions, the test for judicial review is burdensome. Considerable deference is given to any tribunal decision that is considered reasonable and courts are usually reluctant to interfere with such decisions.
As Mr. Nader quite rightly points out in his article – the right to litigate is critical to any democratic society. Even more so in a society where inequality continues to grow between powerful corporations and average citizens. We should all be concerned when there are judicial vacancies remaining to be filled, when there are too few courthouses to appropriately serve the needs of a growing population or when justice churns too slowly because of backlogs.
We should also be concerned when the government’s solution is yet another tribunal that lacks the independence and procedural safeguards necessary to provide justice – that is the hallmark of a fair and democratic society.