Law Times

Law TiMes • May 26, 2014 Page 7 www.lawtimesnews.com COMMENT Speeding up court can be costly, make things worse BY lOu FerrO For Law Times n a world of supposed scarce judicial resources, we now we have the ulti- mate judicial approval of yet more budget cuts: Hryniak v. Mauldin. Access to justice, which some believe is code language for merely trying to speed things along, is now a fi nancial decision driven by the need for more ef- fi cient use of judicial resources. at's budget speak for suggesting there's no more money. I believe lawyers' work is like an automobile production line. Car parts move along a linear continuum, and as you continue along a vehicle takes shape be- fore your eyes as an idea turns into a tangible product. You can see it, touch it, and, ultimately, drive it. But as Adam Smith and Henry Ford knew, the assem- bly line has certain innate and unavoidable limitations. It needs to go through motion and time. Engineers study such things using time and motion studies that produce workfl ow matrices that predict productivity and outcome. But there is one undisputable and scientifi c fact to consider: forcing the line to go faster doesn't always increase productivity. In fact, speeding up the line is usually counterproductive, as some companies found to their great advantage. But the U.S. automakers didn't always believe that and it took the auto unions many years to convince them that speed did not determine effi ciency. In fact, there was a time when production line speed almost brought the industry to bankruptcy as the poor quality of North American cars led to the quality crisis of the 1980s. Product recall and quality control became a major issue, and at the root of the problem was the so-called productivity crisis that was code for telling people to work faster and produce more. Does that sound familiar? As in the auto industry, the emphasis on increasing production by reducing the time allocated in the justice system is counterintuitive and will not deliver the desired outcome; rather, it will only degrade the quality of the justice prod- uct and increase recalls, also known as appeals. Status court is the ultimate, and yet a simplistic, example of this approach. We have a large and effi cient practice, but it wasn't always like this. When status court came into my life, we weren't ready for the tsunami. At one point, the registrar called me to warn we had about 100 status notices coming to us a month. It was overwhelming. We tried to cope but likely lost the battle on all fronts. Status court added a whole other process to our fi les with the cost an es- timated $750 for internal supervision of it. Someone has to manage the new process, and each fi le likely needs at least two court appearances. But when the court tosses an action — and the statistical odds are that some cases will face that result — we have to bring a motion. If the other side opposes it, we go to a long motion list and cross-examinations. If we lose, we appeal. And if we lose at appeal, we pay the full additional surcharge of $12,500 with the cost of the claim offl oaded to LawPRO from auto insurance. e auto insurers and de- fence counsel love that result. Some insightful judges have actually noted Law- PRO is there for that purpose. Even if we win, the court reinstates the motion but six months have now passed. So the cost of the so-called delay problem has now fallen to the lawyers. at was the plan, of course, because we know the press releases leading up to the Justice on Target project were all about lawyers causing the delay. Go back and read them if you have time between status court appearances. We were scapegoats for the government's failure to do for the courts what Polaris did for titles. ere are likely at least 200 status court appearances in Ontario each week. And does that cost the Ministry of the Attorney General any staff administra- tive time? We'll never know. But I understand the ministry has a special status court volunteer group of employees who want to curry favour with their supe- riors. It is a good example of volunteerism at its best. But I don't want readers to just believe me when it comes to the costs of this issue. LawPRO, in fact, has set up a special status court surcharge. Is it a claims crisis yet? Meanwhile, we hear nothing from the province about the success of the status court process. Politicians, and our attorney general is, fi rst of all, one of those, usually like to brag about successful programs. But there's not a peep so far on this. at in itself is telling. And the ultimate effi ciency tool, the summary judgment motion, is a whole new court system with its own scheduling process. at, of course, is not costly given that volunteers run it. In turn, we've had long lineups to get to the short- cut and reports you could get a trial sooner than a summary judgment motion. e real issue here is the failure of the former attorney general's court com- puterization project. A er the provider pulled out and got its breakup fees that were reportedly in the hundreds of millions of dollars, we still have paper fi les in the court system. Maybe we should be transparent, admit it's a big mess, and ask Toyota to come down for a few days to help us fi x it. LT Lou Ferro practises personal injury law at Ferro & Co. u SPEAKER'S CORNER Harper should admit he, not McLachlin, acted inappropriately t has almost been a month since Prime Minister Stephen Harper took a run at Supreme Court Chief Justice Beverley McLachlin. ere was no reason for what Harper did or at least no explana- tion so far. Harper accused McLachlin of acting "inappropriately" by calling him up nine months earlier about something to do with the possibil- ity he would move to appoint Federal Court of Appeal Justice Marc Nadon to the Su- preme Court bench. Harper never took the call. Who knows why Harper waited nine months to dredge up an accusation? Why was he upset that she tried to do him a favour? He could have simply said he'd rather not talk about it and leave it at that forever. e issue, of course, centred on Nadon's eligibility to sit on the top court. Following the government's nomination last fall, lawyer Rocco Galai launched a legal challenge argu- ing Nadon didn't qualify to sit on the Supreme Court bench as a Quebec judge because he was a federal court rather than a Quebec court judge and he wasn't a current member of the Quebec bar. If you don't meet the qualifi cations, you don't get the job. A fi rst-year law student could have told Harper that. He tried to get Nadon in anyway as he tried to sneak a change to the rules into one of his omnibus budget bills. It didn't work. e top court rejected his choice of Nadon. It wasn't a surprise as it didn't take a legal mind of the likes of Bora Laskin to fi gure the issue out. So why was Harper so angry that McLach- lin had called to help him out back in July 2013? Is there a big sign on the offi ce door that says he'll only accept solicited advice? Her attempt to talk to him about Nadon, if that's what she wanted, would have prevent- ed him from looking like a fool once again. It should have earned her a polite thank you rather than public criticism. When somebody tries to do you a favour but you think it may compromise you or that person, you simply say no thanks. So why are we hearing about this now? Did Harper suddenly have another one of his legendary outbursts his former aides are so quick to talk about? Was he angry about some- thing else, such as his fi ve straight los ses at the Supreme Court? Maybe he wanted McLachlin to get angry and resign. Of course, we all know Harp- er's attack on McLachlin went viral. It's not every day in civi- lized countries that the prime minister calls the chief justice "unwise" and accuses her of "inappropriate" behaviour. It was the fi rst time in the history of Canada. And the fallout hasn't stopped. Maybe Harper thought he could get away with the insults and the whole thing would fade away. People kept waiting for some kind of ex- planation for his unjustifi ed attack on the chief justice. With every day that passes, more people have swung over to McLachlin's side with an outraged legal community lead- ing the way. And the damage to Harper just keeps on growing. And with every day that passes, the mem- bers of Canada's legal community realize Harp- er has no explanation for what he did. So the Canadian Bar Association sends Harper a letter telling him he acted inappro- priately. It was a smart use of Harper's own choice of words. en the rest of the legal community chimes in from one end of the country to the other. At last count, there were more than 650 lawyers, law professors, and jurists who signed a letter to Harper demanding he apologize. CBA president Fred Headon, who's a nice fellow, said he hoped it was a "misunderstand- ing" and politely asked Harper to publicly ac- knowledge McLachlin had acted appropriately. Headon said he feared Harper's behav- iour would lower people's confi dence in the Supreme Court. Harper may yet have to apologize or at least whisper that on second thought, maybe the chief justice isn't so "unwise" a er all and that if somebody acted "inappropriately" in all this, maybe it wasn't her. LT Richard Cleroux is a freelance reporter and columnist on Parliament Hill. His e-mail address is richardcleroux@rogers.com. I The Hill Richard Cleroux I

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