Law Times

Page 6 March 27, 2017 • Law TiMes www.lawtimesnews.com COMMENT u EDITORIAL OBITER By Gabrielle Giroday Not so vexatious Justice David Stratas of the Federal Court of Appeal has delivered a balanced ruling on the thorny problem of vexatious litigants. As re- ported in Law Times, lawyers say the ruling litigant will bring great- er certainty to when and how lawyers should bring motions to curb frivolous litigation. In Canada v. Olumide, Stratas recommends litigants bring appli- cations under s. 40 of the Federal Courts Act to weed out vexatious litigants as early as possible. "Section 40 ref lects the fact that the Federal Courts are commu- nity property that exists to serve everyone, not a private resource that can be commandeered in damaging ways to advance the interests of one," he said in the ruling, which points out courts are a "community property" that "allow unrestricted access by default." In Stratas' ruling, he eloquently defines how vexatious litigants affect all users of the court system, but he also preaches a tempered approach where "courts should treat all litigants — even vexatious ones — with dignity and respect." In a time where the subject of court delays dominates the public discussion, the direction Stratas provides is much relief. "This isn't just a zero-sum game where a single vexatious litigant injures a single innocent litigant. A single vexatious litigant gobbles up scarce judicial and registry resources, injuring tens or more inno- cent litigants," he said. "The injury shows itself in many ways: to name Harsh medicine needed to fix family courts BY IAN HARVEY T here are tough assignments in life and then there's the job handed to Justice Annemarie E. Bonkalo. Her task was to review Ontario's family court system and come up with solutions to break the logjam and restore access to justice. There was never any doubt this sea- soned jurist would fulfil the terms of her 2016 brief, but now the shouting begins. The only question is who will have the guts to implement her suggestions. Her approach was unimpeachable. After considering 35 written submis- sions from groups and organizations and 65 written submissions from individual people, she also held more than 25 in- person consultations with groups and organizations. In all, Bonkalo has tabled 21 rec- ommendations, among them unbun- dling legal service fees and using special trained and certified paralegals in specif- ic circumstances. She also recommended funding from the Ministry of the Attor- ney General for alternative legal services and, interestingly, fast-tracking law stu- dents to gain work experience on family law files. This is a novel idea given that ar- ticling positions are so limited these days. Predictably, because it is Family Court, no one is happy. However, that's par for the course because no one is ever happy in Family Court. It is the nature of the beast. The elephant in Fam- ily Court is in plain view — some 58 per cent of litigants represent themselves and, unprepared and unversed, they clog the system. This frustrates the 42 per cent of litigants who have re- tained counsel and with the delay, adding to that cohort's costs, as the report points out. Indeed, the key thrust of the review was to see if legal service providers other than lawyers, as the attorney general put it, "could improve the family justice sys- tem by better enabling people to resolve their family law disputes." It's interesting to note that such was the weight of submissions and the wide scope of the issues at hand that Bonkalo needed a three-month extension to file her report. The pressure is palpable. "We need a system that provides the necessary institutions, knowledge, re- sources and services to avoid, manage and resolve civil and family legal prob- lems and disputes," she notes in the re- port. The issue is how? Justice shouldn't mean risking bankruptcy. Nor should it mean the odds are stacked against them if they self- represent. For example, the report re- fers to findings by Loom An- alytics researchers, based on their study of 1,192 hearings involving unrepresented liti- gants at the Superior Court of Justice, involving 989 mo- tions, 120 trials and 72 appli- cations, from January 2012 to April 2016. "[Their] research indicates that an unrepresented litigant does not typically fare well against a litigant repre- sented by counsel," Bonkalo writes. "For motions, unrepresented litigants had 124 wins and 720 losses. For applica- tions, they had 9 wins and 56 losses. For trials, they had 30 wins and 84 losses." The decision to retain or represent oneself in court comes down to money. Those with higher incomes tend to hire lawyers. Those with lower incomes go it alone. And everyone loses. All this is old news. The question re- mains how are we going to fix this? To be fair, she acknowledges, Ontario is pressing on with pilot projects. Parents can go online to establish and update child support without going to court, for example, and there is a test of e-orders and e-consent. They're also looking to fast-track the 25,000 uncon- tested divorce applications filed annu- ally. Another pilot is looking at the line between legal advice and legal informa- tion dispensed by court staff, and a triage process to stream out and fast-track less contentious matters is also underway. Still, any meaningful solution is be- yond her brief. As Bonkalo notes, what the family court needs is revolutionary change, not iterative change. Government after government has tinkered with the system to little avail. It's irreparably broken. One day, a brave attorney general with an iron-clad man- date from their premier may muster the courage to hand some smart people a blank sheet of paper and task them to create a more workable, f lexible, digitally accessible and affordable process. Maybe. One day. Maybe it's just a fairy tale. Just don't expect any heroics from this government, which has no remaining political capital to tackle the serious and systemic problems of Family Court. LT uIan Harvey has been a journalist for more than 40 years, writing about a diverse range of issues including legal and political affairs. His email address is ianharvey@rogers.com. a few, a reduced ability on the part of the registry to assist well-intentioned but needy self-represented litigants, a reduced ability of the court to manage proceedings needing management, and delays for all litigants in getting hearings, directions, orders, judgments and reasons." Wise words. LT ©2017 Thomson Reuters Canada Ltd. 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