The Hon. Leonard Marchand is Chief Justice of British Columbia, and a member of the Sylix Okanagan Nation. Justice Marchand was the guest on a recent episode of the excellent Canadian Lawyer Magazine podcast. He suggested that we think about the access to justice problem in terms of three groups of people.
The Strugglers
First are people who try to use the justice system, but fail to get justice because of barriers such as cost, time, and the system’s complexity. I think of these people as the strugglers, and their plight has been extensively studied. It is widely understood that lowering barriers would improve access to justice.
The Cynics
Second are people who don’t even bother trying to use the system because, as Chief Justice Marchand said, “they don’t see it as a system that’s for them.” Call these people the cynics.
Prof. David Matyas notes that the number of civil cases in an area indicates the extent to which people there uncynically trust the courts enough to bring their disputes to them. Matyas notes that in the courts of Nunavut, there are 40 criminal cases for every civil case. This sends a troubling message about the population’s cynicism (perhaps well-founded) regarding the civil justice system in that territory.
If we could give the cynics good reason to put their faith back in the justice system, we’d be closer to reaching our access to justice aspirations.
The Overconsumers
Chief Justice Marchand identified a third group, less often discussed in access to justice conversations. These are those who “use more than their share of justice system resources, which prevents access to justice for everybody else.” I would label this third group the overconsumers.
In a new paper Prof. Suzanne Chiodo argues that proportionality – a key aspiration of the justice system – must be understood systemically. Overconsumption of justice system resources by some cases cannot be allowed to prevent other cases from receiving any attention whatsoever.
At the risk of oversimplification, the overconsumers in our justice system might be further divided into two subgroups.
Deep-Pocketed Overconsumers
Marchand noted that this third group includes some “well-resourced parties with good counsel,” whose legal disputes eat up more court resources than they need to.
This includes litigants who go to court even though a reasonable settlement of their dispute was possible. A bit more effort by the lawyers to negotiate, and/or a bit more openness by the clients to compromise, would would avoid some motions and trials that are very expensive not only for the parties but also for the system.
Marchand’s third group might also include parties who have a two-week trial when a one-week trial would have produced the same or almost the same outcome. That week of the court or tribunal’s time could have been spent hearing one of the matters waiting on the lengthy backlog. It’s worth remembering that systemic delay in the justice system isn’t just a problem for the litigants who have to wait before getting justice. Arguably a bigger problem is cases where a claim for substantive justice is completely abandoned, because the anticipated delay makes people give up. (Delay also leads to an abandonment of substantive justice when criminal charges are dropped because of Crown delay exceeding the thresholds from R. v. Jordan).
Inexperienced Overconsumers : Vexatious Litigants
Justice Marchand observed that this third group also includes vexatious litigants. These are mostly self-represented litigants who cannot afford counsel. Many of them honestly but mistakenly believe that their legal rights have been infringed. When their cases are groundless, they need to be disposed of quickly, but not unjustly.
The drive for efficiency and proportionality is no excuse for scorning litigants, or refusing to hear them.
In the Human Rights Tribunal of Ontario, two cases involving the same pair of litigants illustrate the difference.
A Tale of Two Cases
Philip Matthews, who described himself as a senior citizen with serious disabilities, had a disappointing experience with the Cineplex Odeon movie theatre chain in 2017. Philip was mailed an offer promising that, if he opened a new credit card, he’d get 5,000 Scene Points. These points can be redeemed for free movie tickets at Cineplex. Philip sent in his application, but for some reason it was denied. He never got the 5,000 points which he thought he’d been promised. In complaining to Cineplex Odeon, he pointed out why receiving the points was especially important to him. His disabilities made it difficult for him to get around, and going to movies at Cineplex was “one of the few activities in which he can participate.”
Philip knew that the Human Rights Code prohibits discrimination on the basis of disability, and requires businesses to accommodate the disabilities of their customers. And so he brought a complaint to the Human Rights Tribunal of Ontario (HRTO), whose mission it is to uphold the Human Rights Code and resolve disputes arising from it.
Philip’s application to the HRTO had to be dismissed. Cineplex’s conduct, as he described it, did not amount to discrimination under the Code. But what’s important is the way that HRTO adjudicator Douglas Sanderson explained this outcome in his reasons, released July 23 2018. In 400 careful and respectful words, Sanderson explained Philip’s story. The reasons make it clear that Philip was heard, understood, and treated respectfully by the tribunal.
In another 400 words, HRTO Member Sanderson then explained in plain language the ideas of discrimination and accommodation, and showed why, in the eyes of the law, Cineplex had not breached its duties. The legal authority for the dismissal of Philip’s case was abundantly clear: the decision cited all of the relevant sections of the Code as well as four relevant precedents.
Philip’s Second Case
In 2019, Philip Matthews brought a new application against Cineplex in the HRTO. We don’t know what facts were alleged, because this time it was dismissed without substantive analysis, on the basis that Philip had “abandoned” his Application.
It took at least four and a half years for the HRTO to attend to Philip’s second application.
When they finally did so, in the summer of 2024 , no response had been received from Cineplex. One option would have been to compel some sort of response from Cineplex, for example by noting them in default. Another would have been to examine Philip’s complaint and, if appropriate, dismiss it with the sort of substantive reasons that HRTO Member Sanderson provided in 2018.
Instead, on July 18 2024 the HRTO sent Philip Matthews a letter demanding that he provide a new email address for the respondent, Cineplex Odeon. He was required to provide this information by August 1st 2024, or else “the Tribunal would consider the failure to respond as an abandonment of their Application and dismiss the Application for that reason.”
There is no basis in the HRTO Rules of Procedure for requiring applicants, once they have properly commenced a proceeding, to monitor and update contact information for respondents. In any event it would have taken the HRTO less than 5 seconds to find an email address for Cineplex Odeon on Google. It is difficult to avoid the conclusion that this was simply a pretext to try to make the Matthews application disappear without having to consider it substantively. The HRTO received no response by August 1, and so it dismissed the case as “abandoned.”
In a forthcoming paper in the Canadian Journal of Administrative Law and Practice, Emily Shepard discusses the Mathews case among many others illustrating very troubling trends at the HRTO. Applicants wait many years for the tribunal to schedule hearings or take any steps to substantively address their matters. In recent years the HRTO seems to have become embarrassed by its backlog, and so its new policy seems to be making cases disappear as quickly as possible through various procedural tricks – rather than actually deciding whether or not applicants have been discriminated against. The HRTO dismissed 934 cases as “abandoned” in 2024, constituting 49% of all its decisions in that year.
Many of these deemed “abandonments,” Shepard shows, were in cases like Matthews v. Cineplex, 2024 – the reasons disclose no reasonable basis to believe that the applicant actually intended to give up. This is part of the dysfunction which has afflicted Ontario’s high-volume tribunals, mostly attributable to the purge of experienced members in 2018 and 2019.
The justice system must be person-centered. Typologies like Justice Marchand’s are a very helpful way to understand the people and their needs. Creating access to justice depends on responding creatively and compassionately to justice strugglers, justice cynics, and justice overconsumers. Matthews v. Cineplex Odeon 2018 exemplifies a procedurally and substantively just response to a claim that had to be dismissed. Matthews v. Cineplex Odeon 2024 shows the opposite. Read together, the two cases show both the potential and the problems confronting justice in this country.