Allison Speigel is a commercial litigator with Speigel Nichols Fox LLP, a boutique commercial litigation law firm.
Canada is consistently touted as one of the best countries in which to live, but it ranks an unimpressive 112 out of 190 countries according to the World Bank’s enforcing contracts indicator. For good reason: Our civil-justice system is on the fritz.
Litigating a civil claim (e.g. contract claim, property rights claim, etc.) can take many years and cost tens or hundreds of thousands of dollars.
[Ernst’s lawyers advised her in 2007 that it would cost her more than a million dollars in legal fees and court costs (that does not include Ernst working thousands of hours on the case, for no pay and no reimbursement for her expenses) to maybe win $20,000.00. Canadian environmental rulings traditionally provide tiny awards, appearing as though Canadian judges think it’s sacrilegious for citizens to have clean air, water and food, or perhaps corporations dictate what legal awards are for their pollution and demand that awards remain rudely tiny to keep civil citizens out of the system.
Canadians watch too much American TV and think our legal system is like the American system. Read Slick Water to see how Canada’s legal system “works” to protect law violating energy regulators and polluting corporations while punishing the citizen seeking “justice” for the public interest.
Ernst’s lawyers also advised her case will take 10 to 12 years. The case is already in its 1oth year yet still only in preliminaries, and has already cost Ernst nearly $400,000 with no evidence yet argued in court and no end of preliminaries in sight. So far, the worst delays are created and enabled by the judges on the case. Meanwhile, the community of Rosebud and others in Canada continue living with explosive risk and bathing in and drinking contaminated water.
The Supreme Court of Canada (SCC) knowingly published a lying smear of Ernst in their ruling in Ernst vs AER and made Ernst pay costs even though it’s obvious her case is in the public interest. The Canadian Judicial Council refuses to review this atrocious judicial conduct, claiming judges lying in rulings is not conduct. If top judges in Canada get away with lying and damaging Charter rights for civil Canadians, with mainly silence from the system’s paycheque takers, it appears the destruction of Canada’s civil legal system is intentional and conducted by the very judges paid to supposedly uphold the law.
Worse, because Ernst refuses to gag and settle (drinking water belongs to the public; it’s wrong for courts to enable covering-up and sealing contamination cases), her lawyers advised her that if she wins less in court than offered to gag and settle out of court, she will be legally responsible to pay the defendants’ costs as well as her own. How can anyone call that civil “justice?” Who/what prevents judges and law-violating polluters from chatting about lawsuit gag details and settlements behind Petroleum Club doors? No legal authority had found the morals, integrity, ethics and courage to publicly chastise and punish AER’s outside counsel Glenn Solomon for chatting about Ernst lawsuit details to a potential client, violating the rules, making it clear that such galling conduct is protected.
A “fix” to Canada’s broken (aka corrupt) civil legal system is not planned. Only lots of useless talk is planned, to fool Canadians into thinking something will eventually be done. The “system” and courts, including the Supreme Court of Canada, appear more intent on helping Canada’s fascism grow.]
Although you may know about some of the problems plaguing our civil-justice system, you probably don’t care. In fact, you probably believe that this problem doesn’t affect you. You are wrong. An ineffective civil-justice system is bad for our economy, and everyone, including you, is affected by the strength of our economy.
As the Organisation for Economic Co-operation and Development (OECD) explains, the ability to properly protect contractual and property rights encourages investment, promotes economic relationships and fosters innovation. The World Bank succinctly concludes that efficient contract enforcement is essential to economic development and sustained growth. To put it more bluntly, in order for our economy to function properly, people need to believe that contractual, property and other legal rights mean something. But they can only mean something if they are enforceable.
To understand why, ask yourself whether you would buy a house if you didn’t believe that you could prevent someone from squatting in your backyard. Or whether you would deliver $70,000 worth of goods without a contract. But you have a signed contract, you say – good for you. Now ask yourself how you will react when you learn that your contract is effectively unenforceable.
Luckily, in today’s world, people still believe that a signed contract means something. At least until the person is faced with a breached contract, calls a lawyer and learns that, despite the strength of the claim, it may ultimately not be worth the time, cost and risk to fight until the bitter end.
From a purely economic, risk-management perspective, a civil claim worth less than $75,000 (and that figure is probably low) being brought in the Greater Toronto Area using a local lawyer is rarely worth fighting to a final determination. In most cases, the potential recovery is simply not large enough to justify the risk.
That is not to say that parties should always walk away from claims worth less than $75,000. Ultimately, most claims settle because reasonable [??? That’s nasty of the writer to assume. Is she working for Encana and the AER?] parties seek to avoid mutually assured destruction. [What about not gagging and settling to protect drinking water, that all people, including this writer, need to survive?] In choosing to start the process, however, potential claimants must factor in the possibility that their opponent will be unreasonable, in which case the claimant must be prepared to go all the way. [How can gag orders and sealed data be considered “justice?” Losing one’s right to speak for a bit of money?]
The problem does not disappear with claims worth more than $75,000. I recently attended a pretrial hearing in which the presiding judge implored the parties to settle. He explained that, from a purely economic risk-management perspective, proceeding with a three-week trial for a $500,000 claim would likely not be worth it in the end. He explained that both parties were likely to lose, with one party losing much more than the other. Although I agreed with him for the most part, his message boiled down to this: In our system, parties are better off settling than rolling the dice.
This all raises the question: If it does not make economic sense to enforce a contract and a party is effectively required to settle for cents on the dollar, is that contract really worth the paper on which it is written? Similarly, if it does not make economic sense to enforce other legal rights we think we have, do we really have them? [We don’t have them. Just read a few Supreme Court of Canada rulings, notably Ernst vs AER] Without the security of knowing that one’s legal rights will be protected, people will be less likely to transact – and fewer transactions are bad for business and, thus, bad for our economy.
Unfortunately, fixing our civil-justice system will not be easy and, seemingly, there is little appetite to tackle the problem. [Of course not! Corporations and corrupt politicians are protected by the system. It works perfectly for them while trampling on civil Canadians and making good incomes for many judges, lawyers, support staff, and photocopy services. Fascism at its best.]
More money. Cases take too long to be heard, and therefore cost too much, in part because there are too few judges, too few courtrooms and too little technological innovation. [But judges also intentionally contribute to excessive delays, just read a few rulings in Ernst vs Encana for ample proof of that. Judges could rule “reasonably” and responsibly, but choose (or are directed) not to.] While the rest of the world moves forward, our judicial system remains firmly entrenched in the past – relying on fax machines, process servers, paper documents and in-person appearances. [It’s sickening to tally up the photocopying costs Ernst has so far had to pay just for go nowhere preliminary hearings, intentionally added to the bad design to bankrupt ordinary civil plaintiffs and keep them out. The prejudice by judges and courts against ordinary civil Canadians is obvious.]
Lawyers with more skin in the game. It is naive to believe that a lawyer’s course of conduct is not affected by his or her financial incentives. Every client’s goal is to achieve the best result as efficiently as possible. Under the widely used billable hour model, however, lawyers make more money the longer a case drags on and regardless of the end result. In some ways, a client’s financial incentives are diametrically opposed to those of its lawyer. Clients should retain lawyers whose billing structures provide them with the appropriate financial incentives. Value-based billings and flat fees are two such models: they ensure lawyers are rewarded for efficiency and results.
A change in culture. Although the rules governing the system and the judges who enforce them are increasingly paying lip service to the idea that litigation costs should be proportional to the amount at stake in the litigation, they have not gone far enough. [Talk is useless. Action is required, but judges seem loath to do anything to improve the corrupt system] Deadlines should be tightened, the rules should be stricter and the courts should enforce both – even if it means that some cases are decided based on non-compliance with technical rules. Ironically, the system’s quest for near-perfect justice results in a lack of justice. [Is it that or a facade set up to protect the rich and powerful?]
The granting of adjournments is a simple example of the problem; they are handed out like candy on Halloween. Every last-minute adjournment, however, causes a tremendous amount of wasted time and money. It is akin to walking into a final examination for which you have spent weeks studying, only to be told that the exam has been postponed by four months.
Although the legal community needs to be driving the train for change, it cannot solve the problem alone. [And doesn’t appear to want to – the players in the system make too much money personally to want change, and most refuse to rock the boat for fear of losing their careers, or being punished by judges in future hearings. The Canadian system is protecting and hiding it’s corruption well.] The lack of public pressure translates into government inaction. [Most of the public don’t know how bad it is because big media is corporately controlled and doesn’t report responsibly at on important cases, or reports wrongly on them] Said otherwise, the government doesn’t care because you don’t. But you should care because, one day, you may need to rely on a perfectly drafted contract that is, practically speaking, unenforceable.
A few comments:
4 hours ago
“In choosing to start the process, however, potential claimants must factor in the possibility that their opponent will be unreasonable, in which case the claimant must be prepared to go all the way.”
I think this is particularly the case where individuals are pitted against larger entities. One lawyer told me that the standard verbiage “will vigorously defend” amounts to a warning that the other side intends to financially exhaust an applicant and is commonly used to minimize settlement payouts. Our legal system, of course, relies on the ability of both parties to put forward a case and/or defense, however there’s simply no equity under the current arrangement. For ordinary people in this country, contracts aren’t really contracts and rights aren’t really rights as they’re effectively unenforceable for most. No wonder our international ranking is so dismal. [Emphasis added]
15 hours ago
Lawyers are making the laws so they can benefit themselves… Look how many Lawyers in the political system. Go figure!
The Work Farce
14 hours ago
This “boutique” corporate lawyer is right, of course.
There is no equal justice for anybody on the bottom half of the income scale simply because they cannot afford a lawyer.
And enforcing a business contract is the least of the problems average working folks have with the civil justice system.
Upper middle class professionals are protected by the law; they can, if they need to litigate for compensation for any number of cveryday cases, from personal injuries to malpractice suits; from landlord-tenant disputes to discrimination and human rights violations.
The majority of Canadians, contrarily, live at the mercy of the rich and powerful and the professional class, unable to get compensation for personal injuries because they cannot afford a lawyer.
And both lawyers and judges are more likely than ever to consider the case of a low income worker not worth the court’s time or the law firm’s time.
There is no justice for the majority of Canadian.
No justice = no democracy.
[Refer also to:
2017 08 20: A Room Full of Liars & Fascism in Action in Canada: Ever get frac’d? Listen to Steve Harper? Rebel Media? Read Supreme Court of Canada rulings? Minister Public Safety & Emergency Preparedness Ralph Goodale affirms “The Royal Canadian Mounted Police’s (RCMP) use of the major crime technique.”
2017 08 08: Holy Moly! Supreme Court of Canada protected Ernst Zundel’s right to tell false news to the world, but not Jessica Ernst’s right to tell the truth and present Encana’s documented evidence of Encana breaking the law to the Alberta Energy Regulator?
2017 07 13: “Do you believe that you, as a Canadian, have the right to be presumed innocent, until proven guilty, as well as the right to a fair and quick trial?” On Khadr, Trudeau says Charter protects all Canadians, “There is no picking and choosing,” Did Supreme Court of Canada pick & choose when it ruled Ernst can’t sue for her valid Charter claim against AER after the regulator judged her guilty & punished her without a trial and without any evidence?
2017 04 19: Another Steve Harper law violating criminals’ Charter rights. What does it matter, when Canadians harmed by oil & gas industry (via enabling regulators like AER) are banned by the courts from seeking remedy for Charter violations by those enablers?
2017 04 12: Why does Canada not sack bad judges? Do bad judges fill a niche that Rape & Pillage Canada Needs? UK Judge sacked for trolling people on online news stories, posting abusive comments about cases he was involved in
2017 01 21: Damaging the Charter: Ernst vs Alberta Energy Regulator by Lorne Sossin, Dean Osgoode Hall Law School, York University. Comment: “It causes one to question how much both the plurality and the dissent were driven by the desired end-state of the judgment, rather than consistency in applying principles of public law.”
2016 10 12: Retiring Supreme Court of Canada Justice Thomas Cromwell [who ruled against allowing Ernst her Charter guaranteed right to seek remedy for her valid Charter claim against the AER] turns focus to pursuing a more accessible civil and family legal system. “There is a serious access to justice problem in Canada.” … “Various court workers were of the view that the ‘civil system [is] … very much open to abuse by those with more money at their disposal.’”
2016 05 30: Big Thinking Lectures at U of Calgary: Supreme Court of Canada Chief Justice Beverley McLachlin on rule of law principal that “no one, no matter how important or powerful they are, is above the law in a diverse society.” But, judges allow the important and powerful to get away with breaking the law in Canada, so the rule of law is meaningless except for criminals, lawyers and judges and support staff that earn incomes in the system.]
2016 01 31: Canada Revenue Agency owes taxpayers a general legal “duty of care,” but not AER to citizens harmed by the regulator’s gross negligence, fraud and cover-up of illegal fracking? CRA not allowed to intimidate, threaten us, but AER is, including in bad faith, falsely labeling us as terrorists and violating Charter rights?
2015 08 14: Alberta Justice Minister Kathleen Ganley: ordinary Albertans “can’t afford legal services anymore.” Canada’s Chief Justice Beverly McLachlin: people falling through the cracks, “We all know that unresolved legal problems adversely affect people’s lives….”
e v e = ernst versus encana lawsuit
2011: “We have wonderful justice for corporations and for the wealthy. But the middle class and the poor may not be able to access our justice system.” – Chief Justice Beverley McLachlin, University of Toronto conference