Law Times

July 8, 2013

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ALTERNATIVE STRUCTURES PRO BONO CLIENTS Regulation a barrier, bencher says Follow LAW TIMES on $4.00 • Vol. 24, No. 23 P4 When should you work for free? FOCUS ON P6 L aw TIMes Legal Specialists & Boutiques NO COST STORAGE Ask Us How. e: CO V E R I N G O N TA R I O ' S L E G A L S C E N E • W W W. L AW T I M E S N E W S . CO M ntitled-2 1 P10 July 8, 2013 13-05-22 10:16 A Judge calls on colleagues to embrace trials Ruling's treatise on access to justice decries reluctance to adjudicate BY YAMRI TADDESE Law Times R esponding to concerns that a Toronto-area family is facing financial ruin and may have to represent themselves in a high-profile lawsuit launched by York University, an Ontario judge has written a treatise on access to justice calling on his colleagues to take urgent action to ensure litigants have some prospect of affording to defend themselves. "Are judges becoming indifferent to the task of attempting to control the civil justice system?" wrote Superior Court Justice David Brown in York University v. Michael Markicevic on June 25. "Here we are moving closer to the present day reality on the ground. One cannot overstate the oppressive effect on judicial morale of the endless waves of cases which seem to be going nowhere in a civil justice system that is sinking. Why try to be creative when the system, with a life of its own, grinds relentlessly on and downward?" Brown made the comments in a $1.2-million fraud case launched by the university against one of its former executives, Markicevic, along with several members of his family. Markicevic's daughter, Mima Markicevic, was seeking to discharge a certificate of pending litigation against a Vaughan, Ont., property in order to fund the family's defence. Brown, who decried the slow pace of the justice system in his ruling, estimates the family faces $525,000 in legal fees to defend itself. That's if his planned 10-day timetable for the trial turns out to be realistic. Already, the case has languished since early 2012, he noted. For Brown, a big part of the answer to these 'One of the things I find is that the technology we need for courts is not cutting-edge,' says Monica Goyal. Photo: Robin Kuniski conundrums is to focus on bringing cases to trial quickly and efficiently rather than always looking to alternatives such as mediation. "Have judges lost touch with how to move a case along to a final adjudication?" he wrote. "For the better part of 20 years, the relentless mantra has been trials are bad, mediation will solve all problems. Of course, it hasn't." The issue of access to justice, of course, is an issue the profession has been talking about for a long time. In a recent report released by the Action Committee on Access to Justice in Civil and Family Matters, the court processes simplification working group also called for a culture shift within the justice system. "All court service providers, specifically including judges and court administrators, must take a leadership role in terms of enhancing the quality of the administration of justice," the report stated. But while Brown focused largely on the value of quick trials, the report considered judges' roles more broadly. "Judges should see themselves not only as neutral adjudicators but also as engaged problem solvers (through judicial dispute resolution, judicial mediation, etc.), which includes a willingness to be open to and trained in these procedures (the same culture shift is occurring, and needs to continue to occur, at law schools and the bar)." But for others, a key aspect to the culture shift many people are calling for relates to technology. Bringing the courts into the modern age is a largely untapped area that holds great potential for responding to the access to justice problem, says Ontario Court Justice Harvey Brownstone. "It's a huge, huge problem for us," says Brownstone, a See Electronic, page 5 Lawyers question Crown policy on police who lie BY SHANNON KARI of the treatment of mentally ill individuals in our public health system and in our judicial system," wrote the judge. He concluded there was excessive force and efence lawyers are casting doubt on a that Sgt. Stephen Carroll, an officer with more new Crown policy on police who lie than 35 years of experience at the time of the in court over concerns the system will incident, didn't tell the truth about his deployresult in a "bureaucratic quagmire" as ment of the stun gun. The judge also the government pays lip service to comdescribed the testimony of Sgt. Brian plaints about the issue. Why is such a complex, multilevel bureaucratic decision-making In the eight months since it an- apparatus required merely to determine whether a police officer Stapleton as untruthful. He found the officer engaged in "wilful blindness" nounced the new policy, the Ministry of should be criminally investigated after being publicly labelled about the actions of his colleague and the Attorney General has referred mata deliberately dishonest witness by a trial judge? prepared "totally deficient" notes. ters to police on three occasions where Despite the ongoing concerns, the judges in Ontario have made findings that officers were untruthful in their testimony. action and the Halton Regional Police Service province is remaining mum on its actions. "The But the province is refusing to identify the concluded that the court was wrong to find the ministry will not be commenting on whether reviews are undertaken in specific matters or cases, the officers, the police service asked to officer's testimony was untruthful. investigate or the outcome of any review. Justice Stephen D. Brown acquitted Doug- the results of any such reviews," said Brendan The lack of public information about the las Brown of assaulting a nurse and social Crawley, spokesman for the ministry. A spokesman for Halton police tells Law Crown referrals and the scant details about worker at a Burlington, Ont., hospital in a rulSee Crown, page 5 the process the ministry has set up are raising ing issued in April. "This case is an indictment D Childview_LT_July8_13.indd 1 questions about whether any substantive change has taken place when it comes to judicial findings that police have lied in court. As well, in one widely publicized case earlier this year in which a judge criticized the use of a stun gun on a hospital patient with mental health issues, the Crown took no further PM #40762529 For Law Times 13-07-03 11:11 AM

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