Hunter-Loewen, Cheryl --- "Goldilocks' dilemma: Just right consultation in law reform" [2009] ALRCRefJl 22; (2009) 93 Australian Law Reform Commission Reform Journal 67

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Goldilocks’ dilemma: ‘Just right’ consultation in law reform

By C Hunter Loewen *

In 2008, law reform initiatives resulted in proposals to change the rules of civil litigation for more than one quarter of all Canadians.

The Alberta Law Reform Institute (ALRI) proposed revised rules of civil practice and procedure as did reformers in Nova Scotia and British Columbia.¹ All three reform efforts set out to solve similar problems and came up with rules that are better suited to modern litigation. This said, reformers went about the business of rule review and revision differently in each province, and this may affect implementation time lines and the success of the reforms.

Public perceptions

A major problem with the civil rules of court in each jurisdiction is the age old issue of access to justice. Courts play a key role as places where disputes can be resolved fairly, provided that people have access and perceive the civil justice process to be a good use of time and money. Many Albertans state that the court system is difficult to use, costly and takes too much time. Nova Scotians are concerned with the delays, expense and needless complexity of litigation. British Columbia reformers observe that, although citizens need the civil court to solve real life problems, the high cost of going to court is putting the justice system beyond the means of most people. Legal professionals in modern times have the same duty as those who worked in the justice systems of previous centuries to revise civil rules of court to facilitate the conduct of ‘trials ... in a more expeditious manner’ and to ‘redress the grievances felt from the intolerable expense and delays at law’.²

Litigation practice changes

Another problem driving reform efforts is that the rules of court are out of date. Responsibility for setting procedural rules in Canada rests both within the inherent jurisdiction of superior courts and with the provincial legislatures.³ This can create a situation in which the courts lack resources and legislatures lack the procedural expertise and political will to update rules on a regular basis.

For example, the last enactment of Alberta’s civil rules of court took place in 1968—before the establishment of a modern court system—and many of the rules remain the same as when first implemented in 1914. Civil litigation practice in Alberta changed significantly during the past 40 years. Rules were added or adjusted on an ad hoc basis to try to keep pace and the resulting combination of original, special purpose and amended rules is confusing, not enforced in a consistent manner and ill-suited to modern civil justice needs.

Modern rules

The structure of civil rules proposed for each jurisdiction is similar in that the rules are shorter, written in plain language and often include a purpose statement along with the procedural requirements. All three reform proposals put guiding principles in the first part and group similar rules together. The revised rules proposed for Alberta and British Columbia are numbered with a first digit that corresponds to a part number and consolidate definitions in a single place. Alberta’s proposed rules are the most modern in terms of ease of use. In addition to being clearly written, they are logically arranged to generally follow the sequence of steps in a legal action and contain information notes, references to related rules (hyperlinks in the electronic versions) and part summaries to help rule users to understand court procedures.

Rule reform processes

The process used by reformers to assess litigation issues and create revised rules was different in each province. The following outlines of the reform process in each jurisdiction highlight the differences in project mandate, management approach and the extent of public consultation.

Alberta

In Alberta, rule reform started in 2001 when the Rules of Court Committee asked the ALRI—a professional, independent law reform organisation—to review the rules and make recommendations. The ALRI’s Board agreed to manage the initiative as a law reform project, with additional funding provided by the provincial law society, Alberta Law Foundation and the Department of Justice. The ALRI organised the Rules of Court project like every other law reform project as an open, inclusive, consultative effort.

The ALRI established a 10-member project Steering Committee, which included judges with experience at all three levels of court, a representative of the justice department and senior civil litigators. The Steering Committee set the project objectives and mandated a rethinking, as opposed to mere restatement, of the rules of court.

The ALRI prepared two issues papers on the topic of civil justice and procedures. One paper was designed for the legal community and the other tailored for the public and included a returnable questionnaire. ALRI conducted more than 40 open meetings, hosted two public forums and processed approximately 800 responses based on the two papers. These initial consultations revealed the specific problems with Alberta’s civil justice system and litigation procedures urgently in need of reform and helped determine a working structure for the rules revision effort.

The Steering Committee established 10 working committees, including eight focused on specific litigation issues, one general rewrite committee to review every other aspect of civil procedure and one to address critical matters of criminal procedure. Each working committee included, on average, nine volunteers from the Bench and Bar and was supported by two ALRI lawyers. The working committee lawyers prepared research materials, coordinated document production, consolidated comments and assisted the working committee’s policy development efforts.

Altogether, the working committees engaged the time and talents of more than 200 judges, lawyers and other legal professionals who contributed more than 30,000 hours, published 21 consultation memoranda, reviewed more than 300 sets of response comments and recommended the procedural policies that form the basis of Alberta’s proposed rules of court.

The policy recommendations of the working committees were reviewed and approved by the Steering Committee and the ALRI Board. A small drafting committee comprised of lawyers with legislative expertise and a professional drafter was established to turn the policy recommendations into proposed rules of court and court forms. The drafting team effort resulted in a comprehensive draft that was widely distributed, posted for download on the ALRI’s website, open for comment for approximately 15 months and formed the basis of 11 presentations to legal groups and more than a dozen detailed discussions with the Rules of Court Committee.

Alberta’s rule reformers:

• set out to rethink civil litigation practices and procedures;
• engaged in a collaborative effort that was managed by an independent, full-time law reform agency; and
• used iterative consultation techniques with the public and legal community at the issue identification, policy development and rule production stages.

Nova Scotia

In 2004, the Supreme Court of Nova Scotia established a Rules Revision project to study and reform the civil rules of court under the guidance of a nine-member project Steering Committee. The Steering Committee included four justices of the Supreme Court and representatives of the barristers’ society, the Department of Justice and the Law Reform Commission of Nova Scotia (LRCNS). The LRCNS published a short consultation memorandum which described the reform effort, suggested areas in need of revised rules and requested input from the legal community. The objectives of the Nova Scotia reform project and procedural reform issues were adapted from those identified in Alberta’s consultations.

The Steering Committee conducted approximately 13 meetings with members of the Bar and set up eight working groups, each chaired by a justice of the Supreme Court, to investigate reform of an area of civil litigation or appeal procedure. The working groups reported to the Steering Committee and the reports are posted on the court website, with a notice that, although the Steering Committee welcomed the comments of the working groups and others, it was not bound to adopt any particular recommendation.

The LRCNS provided research and administrative support to the Steering Committee and working groups. Nova Scotia’s revision project generated approximately 100 comments, which were posted on the court website. The Steering Committee considered the working groups’ and public comments, and directed a professional drafter to prepare revised civil litigation and appeal rules. The revised rules were approved by all the judges of the Court of Appeal and Supreme Court in June 2008.

Nova Scotia’s rule reformers:

• resolved specific procedural issues identified in other rule reform projects;
• participated in a court defined and directed reform effort; and
• consulted with the legal community on procedural areas in need of reform.

British Columbia

In British Columbia, reform started in 2002 with a suggestion from the law society to the government that civil justice system issues should be reviewed. The Department of Justice created a five-member Justice Review Task Force (JRTF), consisting of two chief judges, the presidents of the Law Society and the regional branch of the Canadian Bar Association and a representative of the Attorney General’s office. The JRTF set up three working committees, including a 12-member Civil Justice Reform working group (CJRWG) to review access to civil justice issues. The members of the CJRWG included four judges and two masters of court, three senior government representatives, two officers of professional legal associations and two lawyers at large. The JRTF released six discussion papers—two on legal culture, two on themes of civil justice reform and one each on proportionality and defensive practice. A managing lawyer was hired to coordinate the efforts of the CJRWG. Research support was provided by government counsel.

The CJRWG split into three subgroups to investigate more fully certain topics. The CJRWG published a consultation report, which included the recommendation that there should be a new set of civil rules of court based on principles identified in the report. Shortly after the publication of this report, the government established a five-member drafting team, which produced a concept draft of proposed rules of civil procedure.

British Columbia’s Deputy Attorney General and Chief Justice presented and discussed the concept draft rules in more than 55 meetings, including five with lawyer focus groups. An online forum was used to receive comments. After these meetings, the drafting team released a revised concept draft. The Rules Revision Committee and all judges of the Supreme Court reviewed, endorsed and, in May 2008, recommended that the revised concept draft rules be adopted.

British Columbia’s rule reformers:

• created revised rules to change the litigation culture;
• engaged in a government and court led reform of the justice system; and
• focused consultation efforts on the proposed rules.

Implementing rule reforms

The final report on Alberta’s rule reform project contains a comprehensive set of proposed rules and court forms that create a modern code of civil procedure that will facilitate access to a fair, efficient and effective civil justice system. It also includes a short overview of the revised rules, a table to help transition from existing to revised rules and a draft of legislation proposed for enacting and ongoing maintenance of the civil rules of court. In addition, the ALRI submitted a separate report to the government on consequential amendments to help ensure a smooth implementation of the revised rules. The proposed rules and draft legislation are under review by the Rules of Court Committee and the government. It is anticipated that revised rules of court will take effect on 1 January 2010.

In Nova Scotia, the proposed rules are in force as of 1 January 2009. There is opposition from some members of the Bar, and a regional association of lawyers requested that implementation be delayed by three months so that written comments can be sent to the Supreme Court.⁴

The due date for comments on the revised draft concept version of British Columbia’s rules was 31 December 2008 and the proposed rules take effect on 1 January 2010. Public comments of note concerning the revised rules include those of the British Columbia Law Society. In September 2008 the society overwhelmingly passed a motion at the annual general meeting expressing disapproval of the CJRWG report and revised concept draft rules. The motion also called for additional study with full public consultation on rule changes that are needed to improve the civil justice system.⁵

It remains to be seen if the extensive consultation done in Alberta results in wider acceptance and a smoother implementation of revised rules of civil procedure than the more narrowly focused discussions in Nova Scotia and British Columbia.

Questions for law reform

The three approaches to revising the civil rules of court raise a number of questions. Law reform bodies or governments contemplating updated, modified or new laws may, like Goldilocks, wonder if the amount of consultation is too little, too much or just right. Reformers also may consider whether getting the consultation ‘just right’ depends mainly on the scope, magnitude or impact of the proposed changes.

Governments charged with implementing and enforcing revised laws may ask if it is a good strategy to adopt a reform process that, although legally sound, seems to disenfranchise a stakeholder group that will be affected by the reform. A related question is whether the full benefit of reforms might be precluded by ongoing opposition to the process by which the reforms were developed.

Finally, does an inclusive, iterative consultation process add value in terms of ease and speed of reform implementation? More importantly, does it foster broad public support for revised laws that are perceived to be better than the old ones?

*Cheryl Hunter Loewen, Counsel, Alberta Law Reform Institute

Endnotes

1 Alberta Law Reform Institute, Rules of Court Project, Final Report No. 95 (October 2008), <www.law. ualberta.ca/alri>; The Courts of Nova Scotia, <www. courts.ns.ca/rules_revision>; British Columbia Justice Review Task Force, Civil Justice Review Working Group, <www.bcjusticereview.org>. Unattributed information about proposed rules and reform processes in Alberta, Nova Scotia and British Columbia is found in publications accessed via these websites.

2 W Stewart, Digest of the Practice of the Exchequer of Pleas in Ireland, Vol I, Part I, (1823), 3.

3 Constitution Act 1867 (Canada), s 92.

4 C Guly, ‘Bar–bench spar in NS over new court rules’ The Lawyers Weekly, (18 July 2008), <www.lawyer sweekly.ca/>.

5 L Duhaime, ‘It’s War: British Columbia Lawyers Take on the Judges and the AG’ (23 September 2008), <http://duhaime.org/LawMag/> .Text of the Law Society’s motion available at: <www.lawsociety. bc.ca/publications_forms/notic es/08-08-27agm.html>.