Law Times

Page 6 April 29, 2013 • lAw Times COMMENT u Editorial obitEr By Glenn Kauth Broad roadmaps for reform T he Action Committee on Access to Justice in Civil and Family Matters has been busy coming up with solutions to the problems plaguing Canada's justice system. In a series of reports, the committee chaired by Supreme Court Justice Thomas Cromwell offers a series of recommendations aimed at increasing access to justice and improving court efficiency in Canada. The four working groups looked at simplifying court processes; access to legal services; prevention, triage, and referrals; and family law reform. Given the need to consider the issues on a national basis, the reports are broad. One recommendation, for example, suggests programs "that provide low cost or free dispute resolution services should be developed in each Canadian province and territory." Ontario, of course, moved on this issue in family law a couple of years ago with its so-called four pillars reforms that expanded access to court-based mediation and dispute resolution services. While it's clear the province could go further by, as the family law working group recommended, proceeding with mandatory mediation, the province has already been active on the issue. As the committee reports point out, so have several other provinces. The committee is obviously recommending an expansion of those services to all courts, although it would be nice to know which models work best. Other recommendations focused on technology. That's a particularly relevant area for Ontario, a jurisdiction that has been woefully slow to introduce digital services to the court system. "Jurisdictions not presently using e-filing should actively consider adopting this technology," states the report from the court processes simplification working group. It's fairly obvious advice but it provides a good reminder of Ontario's failings and the need for it to get aggressive in rectifying its repeated unsuccessful attempts at implementing an electronic document-management system. One area where the committee makes a fairly specific recommendation is on pro bono legal services. "It is the recommendation of the [court processes simplification working group] that a target date be set by which there will be a cell of volunteer lawyers in as many courts as possible across the country," the report states. That's a useful suggestion. Ontario, of course, already has such services available through programs such as Law Help Ontario, although finding ways to expand it would be welcome. Pro bono, however, is a fairly easy thing to suggest as it doesn't really call for new money and is simply a way to encourage lawyers to volunteer their time. Many people will do that, but pro bono doesn't negate the need for systemic change. As such, while the committee reports offer good suggestions, the broadness of the areas they cover means they're hardly a detailed roadmap for fixing the justice system. The challenge, then, is for those who have the power to make changes to implement the most urgent recommendations. — Glenn Kauth Jones litigation offers valuable lessons for legal profession T he Jones v. Tsige litigation represents some of the best and worst features of our judicial system. The litigation created a new tort of intrusion upon seclusion and thereby settled the issue of whether Ontario common law recognizes the tort of breach or invasion of privacy. The Ontario Court of Appeal adopted the Restatement (Second) of Torts in setting out the elements of the new tort. In doing so, the court provided a remedy to the plaintiff who had suffered infringement of her rights by a defendant who had wrongly accessed her private banking records at least 174 times over a four-year period. Law students will be studying the Jones decision for years and lawyers continue to try to determine the case's ramifications and potential impact. Judges use common law to allow our laws to evolve to protect changing legal needs, and to that extent the Jones case exhibits one of the best features of our system. The decision shows the continuing relevance of common law and its ability to shape the law in accordance with the needs of our changing society, in this case the importance of protecting individuals from Law Times $50,000 towards the fees. She misuse of personal information also assigned the $10,000 judgin electronic databases. Social to her Her legal Regrettably for the plaintiff, Justice ment however,lawyer. $127,607, fees, were Jones also exhibits the courts' leaving a shortfall of $67,607 timid approach. As the court that she refused to pay. stated, damages "will ordinarIn response, her lawyer ily be measured by a modest launched a collections action. conventional sum." As a result, On a motion for summary it provided an upper limit of judgement earlier this year, the $20,000 for damages in a succourt declared that the lawyer cessful intrusion upon secluAlan Shanoff had served his client in a profession case in which the plaintiff sional and competent manner, hasn't suffered pecuniary damages. For the plaintiff in Jones, the appeal dismissed Jones' counterclaim contesting court set general damages at a meagre the quality of the legal services, and di$10,000 even after finding the defendant's rected an assessment to set the quantum of conduct to be "deliberate, prolonged, and the legal fees and disbursements. Regardshocking" and noting that "any person in less, a legal bill of approximately $125,000 Jones' position would be profoundly dis- far exceeds the annual gross wages of the turbed by the significant intrusion into average Canadian employee and presents an undue impediment to access to our civil her highly personal information." Even worse for this plaintiff was the justice system for most Canadians. The Jones decision also exhibits a negafact that the court decided the novelty of the issue raised by the case mandated an tive feature of our judicial system. The deorder that each party ought to bear its own cision presents a timid extension of the law. costs. With a low damage award and no While recognizing that invasion of privacy costs order, the plaintiff was on the hook consists of four torts, the Court of Appeal for significant legal fees. Sandra Jones paid chose to recognize and delineate only one Thomson Reuters Canada Ltd. One Corporate Plaza, 2075 Kennedy Rd., Toronto, ON • M1T 3V4 Tel: 416-298-5141 • Fax: 416-649-7870 • www.lawtimesnews.com Group Publisher . . . . . . . . . . . . . . . . . . . Karen Lorimer Editorial Director . . . . . . . . . . . . . . . . . . . Gail J. Cohen Editor. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 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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. Publications Mail Agreement Number 40762529 • ISSN 0847-5083 Law Times is published 40 times a year by Thomson Reuters Canada Ltd., 2075 Kennedy Rd., Toronto, ON, M1T 3V4 • 416-298-5141 clb.lteditor@thomsonreuters.com circulations & subscriptions $179.00 + HST per year in Canada for print and online (HST Reg. #R121351134), $145 + HST per year for online only. Single copies are $4.50. Circulation inquiries, postal returns www.lawtimesnews.com new tort for intrusion upon seclusion. Small and incremental changes to the law may have its benefits but with many, if not most, people not being able to afford legal representation, the slow pace has become a negative element in permitting the public to access legal rights. Small and incremental changes create a lack of clarity in the law and thereby serve as an impediment to access to justice. It's doubtful Jones would be in the predicament she now finds herself had the law developed in a speedier fashion. Certainly, she shouldn't have faced a negative result in a summary judgment motion that necessitated an appeal. Instead, she should have faced a fairly straightforward action culminating in a successful summary judgment motion and significantly reduced legal fees. The legal profession and the judiciary can both learn valuable lessons from the Jones litigation. LT Alan Shanoff was counsel to Sun Media Corp. for 16 years. He currently is a freelance writer for Sun Media and teaches media law at Humber College. 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