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Research

Designing a "Cost of Justice" Project

Barriers to accessing justice are a serious social concern. The expense of litigation to the justice system and to individuals was identified as one of three major concerns in the 1996 CBA Task Force on Civil Justice.1 A decade later, participants in the Into the Future: The Agenda for Civil Justice Reform conference underlined both economic and social costs of litigation as a priority concern for systems of civil justice across Canada. This was also a finding in the Civil Justice System and the Public project.2 The Canadian Forum on Civil Justice has accordingly identified as our top research priority the need to increase our understanding of the costs associated with accessing civil justice. One component of this research is determining the economic costs of both litigation and alternative paths to justice. Another component is identifying and understanding the detrimental economic and social costs that accrue if our civil justice system is not accessible, effective, fair and efficient.

During 2007 the cost of litigation received significant media attention throughout Canada. Ordinary citizens are concerned about this issue and its impact on their ability to resolve disputes in the justice system, and their concern is reflected in the media coverage. Research about the costs of justice is also of international interest.3

The Forum has already collaborated with Justice Canada in developing a report which looks at the social costs associated with the failure to effectively resolve legal disputes.4 Diana Lowe served as a member and Advisor to a Canadian Judicial Council Subcommittee on the Cost of Access to Justice (Trial). As well, the Forum has been invited to convene a national Action Committee on Access to Justice for which the cost of litigation will be the first topic of focus.

Research Program

The cost of access to justice has not yet been well studied and we are unaware of any research methods that specifically address the questions to which we are seeking answers. Finding ways to effectively document and understand how and where the financial costs of litigation accrue is complex and will require extremely innovative methodology and strong collaborative commitment from the justice community on a national scale. Because of the complex nature of Canadian civil justice systems, the project will require both provincial and national components. A successful methodology to investigate both the economic and social costs associated with resolving legal problems will require inter-disciplinary insights - from the legal profession, court administration, economists, sociologists, political scientists and lay persons with experiences as litigants, potential litigants and witnesses. A comprehensive methodology must include an economic model to estimate comparative costs. It will also require the development of unique approaches to understanding at which stages costs arise in various kinds of litigation, and why this is so.

The Forum has obtained initial funding from the Alberta Law Foundation to enable the design of the methodological approach for such research. It will allow the Forum to:

The goal is to design a national and international program of research on the cost of justice. Funding will then be sought for a multi-year research project, with the overall aim of developing solutions for reducing cost and improving access to justice.

Senior representatives of Alberta Justice and the BC Ministry of Attorney General have expressed interest in working with the Forum on such an approach. We have begun to discuss exciting research opportunities to measure cost, leading to a cost-benefit analysis which will truly enable us to know whether reforms have the effect of reducing the cost of litigation. An example is a pilot initiative which will measure the cost of litigation in the two very different case management regimes that are developing under the proposed new Rules of Court in Alberta and British Columbia. In Alberta, the proposed Rules will continue the traditional system of litigation management, with the central element of lawyer responsibility for the progress of an action. In British Columbia, the proposed Rules will require that a case plan must be created after the exchange of pleadings and before the next step can be taken. Research which measures the comparative cost of litigation under these very different regimes will allow an assessment of the cost impact in a way that has never before been achieved. This approach could be applied to similar analyses touching almost every area of civil process including public information systems, dispute resolution programs, pre-trial litigation management, simplified procedures and enforcement mechanisms.

  1. ^ The view of cost as a major barrier to accessing civil justice, and a source of declining public confidence in the system, is widespread and long-standing. In Canada, in the 1987 Zuber Report, Justice Zuber noted that the most common complaint about the justice system was that the cost of litigation is excessive. In a 1992 Australian report, the cost of civil litigation was described as going "to the heart of the accessibility of justice." In his 1996 Access to Justice Report on the civil justice system in the United Kingdom, Lord Woolf commented that cost, together with delay and insufficient understanding of the system, were three key factors affecting the accessibility of civil justice.
  2. ^ The Civil Justice System and the Public research was funded by the Alberta Law Foundation and a SSHRC-CURA grant.
  3. ^ Canadian and UK research has established that socio-economic costs attach to the failure to access justice in terms of lost economic contributions and increased healthcare costs.
  4. ^ Social, Economic and Health Problems Associated with a Lack of Access to the Courts, Final Report to Ab Currie, Principal Researcher, Research and Statistics Division, Department of Justice Canada, March 2006 (unpublished).