Costs of Litigation

A recent decision of the Ontario Superior Court adds insight as well as fuel to the ongoing debate surrounding access to justice and re-raises the question of whether only the rich can really afford to get involved in today's legal system.

The truth is the litigation process faces its challenges both in terms of time and money because it has become very lengthy and prohibitively expensive in the recent years. More and more claimants, especially those of limited means, face the prospect of legal fees exhausting their financial resources before they even reach a trial.

In York University v. Michael Markicevic, 2013 ONSC 4311, Justice Brown noted that "such a state of affairs reflects an unacceptable failure on the part of our civil justice system". He goes on to write in his decision that "if we have reached the point where $800,000 cannot buy you a defence to a $1.2 million fraud claim, then we may as well throw up our collective hands and concede that our public courts have failed and are now only open to the rich."

In this case, the failures in the system are pinpointed as being a lack of access to the courts and decisiveness on the part of judges to move litigation forward. Unfortunately, while this is a very true reality of our current justice system, it does not represent the whole picture. It is up to the legal profession, as a whole, including lawyers and judges to help streamline the process and to do so in a manner that is cost efficient for parties while making effective use of the various procedural avenues that are available. It is still possible to resolve a lawsuit in a reasonably timely and affordable manner. The issues have to be narrowed and focused and the parties have to be willing to communicate and negotiate.

When the issues are clear and the parties are open to settle, matters can be resolved quickly reducing both time and costs. When this is not the case, however, access to the court system needs to be made possible and judges need to be decisive. Thus, there has to be willingness on the part of everyone involved to be flexible and encourage informal settlements or adjudication by a judge depending on which is necessary under the circumstances. Cases that do not belong before the courts should be ushered out while cases that need to go before a judge should be guided in. The trend, in recent years, has moved away from cases going to trial to cases settling at mediation. However, there is no one size fits all solution when it comes to conflicts. Therefore, the key is to decipher what is required in each unique case and to proceed accordingly.