A. What is Accessibility?
Accessibility is one broad measure of the functioning and universal application of a justice system. For the purposes of this paper, accessibility may be defined as access to the dispute resolution process most appropriate in the circumstances, whether that be the court system or another forum. Access to the court system is not the only realm where accessibility is important in a justice system generally, and not the only realm through which accessibility issues should be tackled. Despite this, one of the chief elements, and primary measures, of accessibility remains an individual’s ability to have their claims determined, and rights protected, by an impartial, independent court. As a result, being able to access the legal process is a critical element of accessibility.
Access to dispute resolution has become a major focus of scholarship, legal opinion, and law reform in recent decades, and litigation, as one mechanism for dispute resolution, is the lens through which accessibility is most often discussed. By many accounts, Canada is facing a court accessibility crisis as the costs of litigation rise beyond reachable levels for all but the very wealthy, or the very low-income that qualify for legal aid. This has led to a rise in self-represented parties who may not be able to properly interpret and apply the law or rules of court, making their chances of success limited. Complexity has also contributed to a lack of accessibility, as the increased complexity of the law has meant increasingly complex rules and procedures that, in turn, cause delay, drive up cost, and reduce the lay person’s ability to navigate the court system without professional assistance. As procedures have become more complex, efforts to create efficiency and widen a population’s ability to access and navigate that procedure have become more common. Examples include small claims courts, simplified or summary civil litigation procedures, and a rise in self-help legal guides and manuals. All of these have been undertaken with the aim of increasing efficiency and reducing cost and delay.
However, physical access to the actual sites of dispute resolution remains a barrier for many people. Looking at the court system, many people may not be able to access a courthouse or court registry, or read or understand guides and forms. Furthermore, the time delays associated with pursuing a court claim can mean multiple return visits to the courthouse, which may become prohibitively expensive for some in rural or remote areas not served by their own courthouse. Increasing accessibility therefore requires a multi-pronged approach, as lack of access is a multi-faceted problem. Because there are a multitude of barriers to probate, discussed in depth in Part Two, Section E of this paper, addressing them may require a different approach for each. As will be discussed, simplifying the mechanisms for applying for probate is only one part of that approach. In Part Five, this paper will suggest a multi-pronged approach to increasing accessibility in the probate application system by addressing issues relating to form and procedure, physical accessibility, legal self-help guides and services, and accessibility services that take place outside the courtroom, such as online or electronic document generators.
B. The Key Principle of Proportionality
One of the critical pieces in Ontario’s effort towards increased accessibility of the court system has been the effort to enshrine the principle of proportionality in Ontario court practice and procedure, as well as in newly-formed or reformed legal processes.
Proportionality describes a balancing between a dispute on the one hand, and the process and procedure for resolving that process on the other. At a preliminary level, proportionality in a broader legal system generally requires providing the appropriate dispute resolution process for each individual circumstance or case. This may imply that the most minimally complex process required, as well as that with the greatest accessibility, be used. For example, disputing a parking ticket should not entail a full two-day trial in an upper-level court. By contrast, a major and heavily disputed class-action lawsuit should not be resolved by desk order or in chambers, and may not be suited for mediation or alternative dispute resolution, depending on the circumstances.
Once the appropriate dispute resolution process is employed, proportionality then implies a balancing between the complexity, monetary value, and legal importance of the issues involved, and the formality, orders, and procedure imposed within that dispute resolution process. In court cases where small values are at stake, or where issues are not legally complex or novel, proportionality implies that the court may not need to devote enormous resources, expense, or time to them. Alternatively, where cases are highly complex or of legal importance, or the amounts involved very large, the court may need to devote more energy and time to reaching a solution or settlement. Therefore, it follows that cases where the issues are simple, or the amounts involved small, proportionality encourages a lesser consumption of the court’s time and effort.
Outside the court context, proportionality requires the same balancing to be applied to administrative processes or alternative dispute resolution processes. It encompasses myriad rules of procedure, evidence, and standing, includes the formality of required forms, and can encourage flexibility in both form and substance of orders and decisions made. It extends from the decision-maker to the parties and the administrative clerks, as well as the accessibility and formality of the buildings themselves. Proportionality is the principle behind a legal system’s attempt to devote its resources to areas where they are most needed and where they can be of most use.
The principle of proportionality has been given great weight and credence by courts in Canada, and in Ontario specifically. The Supreme Court of Canada regards proportionality as the source of a court’s power to intervene in proceedings. It allows the court to focus and direct proceedings in the most suitable and efficient direction, having regard to what is truly required to reach a fair and just conclusion. In Ontario, proportionality was enshrined in the new Rules of Civil Procedure that came into force on January 1, 2010 . Rules 1.04(1) and (1.1) state the following:
- 1.04(1) These rules shall be liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits.
- 1.04(1.1) In applying these rules, the court shall make orders and give directions that are proportionate to the importance and complexity of the issues, and to the amount involved, in the proceeding.
By making proportionality the overarching principle in the Rules of Civil Procedure, by placing it at the beginning, Ontario has intended proportionality to be used as an overall tool to interpret the entirety of the Rules and the court’s practice. Proportionality is a principle that should touch every instance of court work in Ontario, as well as be the lens through which procedure, and procedural reform, is viewed.
Many judgments have made reference to the importance of proportionality and have discussed how proportionality is a foundational principle upon which all court practice and decisions must rest, even where proportionality is not specifically cited in any rule: “[…] applying rules of court that involve discretion ‘includes…an underlying principle of proportionality which means taking account of the appropriateness of the procedure, its cost and impact on the litigation, and its timeliness, given the nature and complexity of the litigation’.”
However, the fundamental importance of proportionality goes beyond litigation. The principle affects the conduct and procedure of all civil matters, whether they are contentious or non-contentious, and whether they are dealt with in a courtroom or out. Justice Osborne, in his report on civil justice reform in Ontario, concurred that proportionality “has broad application to all civil proceedings.” Proportionality has therefore been used and applied in many ways: Justice Brown, for example, indicates that he has used it in giving direction on where an application, in a non-contentious estates matter, should be started.
Proportionality is therefore not a principle that should be limited to the actual courtroom. Justice Brown has indicated that it should reach the court staff as well, and help create what he has called a “culture of common sense” in balancing the need for correctness and precision in preparation of court forms with the costs and delay incurred when corrections are ordered, as well as the substantial importance of the corrections requested. He himself has used it to direct exceptions to the standard clerk practice of requiring formal corrections, complete with a completed corrections form, for each change to the probate application forms, where the error was insignificant or of no practical consequence to the substance of the forms.
Therefore, while the principle of proportionality in the Rules of Civil Procedure is not aimed at estates specifically, it has ramifications for how estate work is practiced by lawyers and self-represented individuals, as well as for how estates are administered in Ontario. Proportionality is used to examine the conduct of the parties, as well as their lawyers, in determining costs awards during estate litigation. It also affects solicitors, in demonstrating the need for them to manage their clients and the plans and strategies they suggest, so that legal service, too, is proportional to the complexity of the issues at play. And it should affect procedure, so that the procedural requirements of estate administration do not outstrip the complexity, size, or legal importance of the estate itself, which may mean not using a court process at all.
C. Why Proportionality Is Important for Accessibility
Proportionality is a critical element of accessibility in the justice system. At a courtroom level, as we have seen, proportionality guides the process to ensure that it is representative of the resources required to adequately resolve an issue. Proportionality also guides the justice system as a whole, ensuring that a variety of processes and forums exist to best respond to the needs of the public. At a high, broad level, proportionality implies that the courtroom may not always be the best forum for resolving a dispute or issue. Court procedure costs the government, the court system, and the parties in both time and money. It costs individuals in terms of effort and stress, in terms of likely requiring legal assistance, and in terms of the difficulty of navigating the procedure. If accessibility is a key issue in affording the public with fair, just, timely and efficient mechanisms for resolving disputes, proportionality is the tool that allows such mechanisms to properly evolve .
The Supreme Court of Canada, in a recent judgment, made several statements regarding the importance of proportionality and the necessity of it in every aspect of the justice system:
- A fair and just process must permit a judge to find the facts necessary to resolve the dispute and to apply the relevant legal principles to the facts as found. However, that process is illusory unless it is also accessible – proportionate, timely and affordable. The proportionality principle means that the best forum for resolving a dispute is not always that with the most painstaking procedure.
- […] There is, of course, always some tension between accessibility and the truth-seeking function [of a court proceeding] but, much as one would not expect a jury trial over a contested parking ticket, the procedures used to adjudicate civil disputes must fit the nature of the claim. If the process is disproportionate to the nature of the dispute and the interests involved, then it will not achieve a fair and just result.
Proportionality clearly has a key role to play in increasing accessibility, one of the chief goals of this project. It should therefore remain a principal focus in determining whether a simplified application procedure should be established for small estates.
D. Why Accessibility and Proportionality Matter in the Probate Application Procedure
The current probate application regime can lack accessibility where the value and/or complexity of the estate are not balanced with the procedure and mechanisms of the application to obtain the grant of probate. Ontarians may face several barriers in accessing the current probate application procedure, which are discussed in more depth below. Cost and delay, complexity in the procedure, the outside perception of complexity in the procedure, and physical inaccessibility can also result in a lack of access to the probate application system; where these factors may be combined, the accessibility problem is compounded. Any of these barriers can demonstrate a lack of proportionality, where the value of the estate is not balanced with the barriers faced by the estate representative. Proportionality is ther