Law Times

October 18, 2010

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PAGE 6 COMMENT Law Times Group Publisher ....... Karen Lorimer Editorial Director ....... Gail J. Cohen Editor .................. Glenn Kauth Staff Writer ............. Robert Todd Staff Writer ....... Michael McKiernan Copy Editor ......... Heather Gardiner CaseLaw Editor ...... Jennifer Wright Art Director .......... Alicia Adamson Account Co-ordinator .... Catherine Giles Electronic Production Specialist ............. Derek Welford Advertising Sales .... Kimberlee Pascoe Sales Co-ordinator ......... Sandy Shutt ©2010 Thomson Reuters Canada Ltd. All rights reserved. No part of this publication may be reprinted or stored in a retrieval system without written permission. The opinions expressed in articles are not necessarily those of the publisher. Information presented is compiled from sources believed to be accurate, however, the publisher assumes no responsibility for errors or omissions. Law Times disclaims any warranty as to the accuracy, completeness or currency of the contents of this publication and disclaims all liability in respect of the results of any action taken or not taken in reliance upon information in this publication. OcTOber 18, 2010 • Law Times Law Times Thomson Reuters Canada Ltd. 240 Edward Street, Aurora, ON • L4G 3S9 Tel: 905-841-6481 • Fax: 905-727-0017 Publications Mail Agreement Number 40762529 • ISSN 0847-5083 Law Times is published 40 times a year by Thomson Reuters Canada Ltd., 240 Edward St., Aurora, Ont. L4G 3S9 • 905-841-6481. CIRCULATIONS & SUBSCRIPTIONS $159.00 + HST per year in Canada (HST Reg. #R121351134) and US$259.00 for foreign addresses. Single copies are $4.00 Circulation inquiries, postal returns and address changes should include a copy of the mailing label(s) and should be sent to Law Times 240 Edward St., Aurora, Ont. L4G 3S9. Return postage guar- anteed. Contact Jacquie Clancy at: jclancy@ or Tel: 905-713-4392 • Toll free: 1-888-743-3551 or Fax: 905-841-4357. ADVERTISING Advertising inquiries and materials should be directed to Sales, Law Times, 240 Edward St., Aurora, Ont. L4G 3S9 or call Karen Lorimer at 905-713-4339, Kimberlee Pascoe at 905-713-4342, or Sandy Shutt at 905-713-4337 Law Times is printed on newsprint containing 25-30 per cent post-consumer recycled materials. Please recycle this newspaper. Editorial Obiter Testing interpreters: Good intentions gone bad O nce again, the issue of inad- equate court interpretation services is on the public agenda. Thanks to the high-profile prosecution of Toronto grocer David Chen, Ontarians are aware of the bewildering fact that the province has no fully accredited Manda- rin court interpreters. With such a large Chinese community in Ontario, that's hard to believe. But with Chen's ongoing trial for assault and forcible confinement delayed as a result, it's also unacceptable. The government has done the right thing in testing court interpreters to en- sure they meet proficiency standards and thereby lessen the chances of a miscarriage of justice, an issue that's already sparked a class action lawsuit over alleged wrong- ful convictions due to inadequate court interpretation. But with so many inter- preters flunking the test — recent num- bers put the failure rate at about 40 per cent — it's obvious there's a problem. Interpreters say the test is too aca- demic and doesn't reflect the realities of what they do in court. At the same time, the Court Interpreters Association of Ontario has said the government has turned down offers to help train and up- grade the skills of interpreters. It's tempting to give the government the benefit of the doubt that it has de- signed a rigorous test for which people simply have to strive harder to meet the standards. But in another sector, simi- lar complaints are arising. Since April 15, private investigators have been sub- ject to a new basic training and testing requirement. Recent estimates at some agencies put failure rates at about 50 per cent. Criticisms of the new system include the fact that there's no approved cur- riculum for the training component; that those who design the courses don't get to see the exam beforehand; and that the test is too broad and not necessarily relevant to the work private investigators do. As well, people have complained that there's no handbook to help prepare for the test. "There were questions on it that I will never come across in my area of exper- tise," one commentator identifying as a private investigator recently wrote on It's obvious, then, that there are flaws. Once again, good intentions at ensuring and raising proficiency standards are having unintended consequences. In the case of court interpreters, it's a major problem that the courts are wast- ing trial time due to the testing issue. But as we've seen in other areas of the justice system, the government is slow to fix the problems. Ontario Court of Justice Chief Justice Annemarie Bonkalo, for example, has been warning about shortages of jus- tices of the peace for some time, and now the issue is resurfacing as courts in places like Sault Ste. Marie, Ont., find them- selves cancelling sitting days as a result (see Law Times, page 1). While the gov- ernment has made good efforts to reform the justice system in recent years, it's clear that there's an urgent need to do more. — Glenn Kauth Winkler's call for family law changes not dramatic enough L ast month, Ontario Chief Justice Warren Winkler, in a speech marking the opening of On- tario courts for the current ses- sion, recommended what were termed "dramatic" changes to the family law system. Winkler proposed that liti- gants be denied access to the courts without first having gone through mediation or arbitra- tion. As a result, "only in the event that the alternative dispute- resolution process is unsuccessful would access to the costly, time- consuming, adversarial, and sometimes acrimonious court process be available to litigants," according to Winkler. Apparent- ly, as fine-tuning the system is of little value, a "fresh conceptual approach" is necessary. At the same time, the Law Commission of Ontario recently released a report with the results of its consultation process around family law. It should come as no surprise that it found our fam- ily justice system to be lacking; indeed the title of the report refers to our "broken family jus- tice system." It disclosed doubts, however, about mediation. Ap- parently, it's not a cure to what ails the system since mediation only works when both sides want it to. At the same time, not all mediators are effective and, of course, mediation can be expensive. Instead of more mediation, we need to deal with the high costs of litiga- tion by lowering fees and provid- ing more money to low-income litigants. Flexible payment plans would also be nice. So on one hand, we need more alternative dispute resolu- tion before resorting to the evils of the adversarial world, while on the other, we need more money to pay lawyers who op- erate in that sphere. So what's the answer — more mediation, more money, dealing with the high costs of litigation or all of the above? But what if it's none of the above? If we recognize that the current system is costly, time-consuming, and often acri- monious, why don't we consider other more extreme alternatives? Perhaps we need to completely revamp the system or build a new one from the ground up. What's the elephant in the room common in both the Social Justice By Alan Shanoff Winkler and law commission pro- posals? It's the adversarial system. Both of them attempt to remedy the problems created by that sacred cow. As Osgoode Hall Law School professor Alan Young reminds us in his entertaining and no- nonsense book Justice Defiled: Perverts, Potheads, Serial Killers and Lawyers, "adversarial justice is a historical accident." In fact, many people would agree with Young's view that "justice is rarely achieved by the clash of adversar- ies." That's because the adversarial system is a "legal process that has more in common with sports entertainment than an epistemo- logically sound mechanism for discovering truth." Let's face it: our current ap- proach is costly and time-con- suming. Many parties turn into adversaries. The system encour- ages acrimony. It works best when both sides have equal resources, but that's often not the case. The search for jus- tice, fairness or truth is often subsumed in gamesmanship along with a win-at-all-costs attitude. People take extreme positions. It doesn't have to be that way, but human nature seems to make it so. In many cases, litigants can't afford their lawyers. Money they could be using to support their children or a deserving spouse instead goes to counsel. Many litigants represent themselves, which cre- ates another set of problems. Instead of tinkering with the status quo, why not try to design a new family law system that limits the role of lawyers? Perhaps we're afraid of even thinking about coming up with a more intelligent approach to dealing with family law disputes that might lead to an understanding of why we should also be considering a revamp of the current model for resolving personal injury and maybe even employment matters. The answer may involve some- thing like collaborative divorce, a practice that doesn't limit the role of lawyers but aims to eliminate the adversarial approach while at the same time easing the emo- tional distress of divorce and separation. I don't know for sure. What I do know is that the time for tinkering is long past. At the same time, we need to look at what motivates, and there- by eliminate, the worst excesses in family law litigants' behaviour. Instituting real and timely rem- edies would help counter false accusations of abuse, denial of ac- cess, hiding assets, bullying, and other problems. I know it won't be easy and it certainly won't be popular. Many people have a vested fi- nancial interest in retaining the current adversarial system with all of its warts. But if the best we can come up with is the appar- ently dramatic change of more alternative dispute resolution or throwing additional money at the problem, there needs to be another option. LT Alan Shanoff was counsel to Sun Media Corp. for 16 years. He is currently a freelance writer for Sun Media and teaches media law at Humber College. His e-mail address is

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