This section will examine five processes that have sought to strike a balance between accessibility and procedural rigour. It will then examine whether there is a difference between how adversarial processes and non-adversarial process have approached, or succeeded, at this balancing. Finally, it will seek to draw conclusions about what the examined processes can suggest for increasing accessibility in the probate application system by simplifying procedure.
A. Where Have Accessibility and Procedure Been Effectively Balanced?
Other processes and procedural reforms have sought to strike the balance between accessibility and protection. As access to the court system has become an issue of increasing focus in the last decades, a variety of processes have sought to achieve a proportional response to accessibility issues. What can these processes show us about what a simplified probate application procedure might need to consider or include? Is there a difference between adversarial processes that have struck this balance, and non-adversarial processes that have sought to do so?
This section will consider six processes: Small Claims Court, Simplified Procedure in Rule 76 of the Rules of Civil Procedure, the Social Justice Tribunals Ontario generally, the Landlord and Tenant Board specifically, the Land Titles Registry and Electronic Land Registration System, and the Children’s Law Reform Act. Conclusions regarding what each of these processes can demonstrate for a simplified probate application procedure will be considered at the end of each section. Finally, this section will draw some conclusions about whether there is a difference between how adversarial and non-adversarial processes have approached this balance, and what this may mean for a simplified probate application procedure.
1. Small Claims Court
Small claims courts have become one of the critical elements in increasing the accessibility of the court system for average individuals. The rationale for small claims courts is to create a more informal, more streamlined court process, limited by the dollar value of claims that can be made and by the procedural rules used, in order to increase the efficiency and speed of the civil litigation process. In Quebec, free assistance is provided by court staff to individuals who need help preparing for their hearings. Limited pro bono assistance from duty counsel is available at the Toronto Small Claims Court.
Small claims courts tend to have nominal filing or other administrative fees, and self-representation is encouraged. Costs are further reduced in two ways: relative to the costs of traditional litigation, and relative to the means to the moving party and/or to the value of the claim. Both of these relative reductions increase accessibility. Delivery costs to the government are also reduced, as more cases can be heard in less time than in traditional civil litigation, sometimes with part-time judges, helping to reduce backlogs and increase efficiency, making small claims courts an effective cost-savings measure for government as well. Evidentiary and procedural rules are relaxed, which also encourages self-representation. Formalism is reduced, as is both complexity and the perception of complexity, so that individuals feel encouraged and capable to represent themselves in small claims courts. For example, the Small Claims Court forms in Ontario are “fill-in-the-blank” forms, which may be filed in court by mail. The reduction of costs to access the court system is even more important where the value of the dispute is low, as this increases proportionality and decreases the likelihood that fees and cost will be a barrier to adjudication of a claim.
The limitation of cost awards to lawyers also helps increase the number of self-represented litigants, although in this sense people may self-represent not out of choice, but out of a lack of lawyers willing to represent parties in small claims court. In Ontario, however, paralegals are now eligible to represent parties in Small Claims Court. This clearly increases the cost for those who choose to hire a paralegal, and may have both a positive and negative result for accessibility: in may increase the sense of accessibility for those who are overwhelmed or unable, for whatever reason, to represent themselves in Small Claims Court, but may reduce accessibility or the perception of accessibility for those who cannot afford to hire a paralegal, but may face one as the opposing party’s representative.
A relaxation of the procedural rules is possible, in part, because of a greater quantity of self-help legal guides and resources available for Small Claims Court cases. A more involved, advisory role for court clerks and staff, and in some places, a more inquisitorial, managerial mentality from judges, may also assist with self-representation and help ensure that the process is properly directed.
Ontario’s Small Claims Court underwent civil justice reforms in 1998, 2006, and 2008, all undertaken to further increase accessibility. Beginning January 1, 2010, the monetary limit of claims in Small Claims Court was raised from $10,000.00 to $25,000.00. However, small claims courts are limited in jurisdiction by more than just the monetary value of the claim. The Small Claims Court cannot hear matters dealing with estate administration, family law, or real property, for example, limiting accessibility in these areas.
Research has indicated that rather than be used mostly by individuals, thereby increasing their access to the court system, small claims courts are most often used by business or business owners who use the court as a debt collection mechanism. It is not clear, therefore, that Small Claims Court has fulfilled its mandate to increase accessibility for average individuals. Properly, it should be considered only one of several necessary avenues for increasing accessibility, and not a panacea for all things accessibility, as Small Claims Court has sometimes been presented.
Small claims courts still tend to be physically located within courthouses and are still designed like courts, with the same opening hours as courts. They therefore typically fail to address physical accessibility concerns.
It is questionable whether small claims courts have really increased access to the court system as widely as originally hoped. In one of the only major empirical study of small claims courts, which looked at Quebec, the population found to be using the Small Claims Court did not reflect the diversity of its geographical area, but rather continued to reflect the population demographic most often seen to use the civil justice system generally. That is, women, visible minorities, the young and the elderly, those of lower income or socio-economic status, immigrants, and those facing a language barrier were just as likely not to use the small claims court system as they were to not use a more superior court. It must therefore be considered that a plaintiff’s economic status may not be their only bar to accessing the court system; socio-economic, gender, racial, ethnic, or cultural factors may play an equal or greater role in preventing or impeding individual access to the court system. Focusing on cost alone, therefore, is not likely sufficient for increasing accessibility.
What Can the Small Claims Court Show the Probate Application Procedure?
For the probate application system, Small Claims Court demonstrates that imposing a simplified, streamlined, and more efficient procedure for claims under a certain monetary value can increase access for certain populations. However, it also demonstrates that implementing such a procedure is not sufficient for increasing accessibility: self-help legal services, physical accessibility issues, and efforts to encourage access for all demographics must also be incorporated for any simplified small-value procedure is to be successful.
2. Simplified Procedure – Rule 76 of the Rules of Civil Procedure
Simplified procedure is contained in Rule 76 of the Ontario Rules of Civil Procedure. It is a stripped-down litigation procedure for cases with a claim valued at $100,000.00 or below, for either money, real property, or personal property, with proportionality being both the driving principle and at the very root of simplified procedure. Proceeding by simplified procedure under Rule 76 is mandatory for all civil claims falling under its monetary jurisdiction, although there are some mechanisms for moving into, or out of, simplified procedure as cases evolve and different procedures become warranted. However, there are serious penalties, including adverse cost awards, for lawyers who try to avoid the application of Rule 76 for cases that fall under its mandate.
Simplified procedure was specifically introduced to address concerns about the ballooning costs and delays of civil litigation, which were seriously hampering access to the court system for individuals in Ontario, and it was specifically designed to address those concerns. The idea of simplified procedure in Ontario took shape in the 1990s, and rule 76 was eventually permanently adopted into the Rules of Civil Procedure. Several other jurisdictions have also undergone simplification processes similar to Ontario’s.
Indeed, simplification of rules of court generally has been seen as one of the primary methods of increasing access to the court system. Rules of procedure, while not necessarily substantive rules of law, can have a significant impact on accessibility to the court system, on a person’s rights throughout a court process, and therefore on their ability to have those rights protected. For example, procedural rules can sanction abuse of the process by parties, thereby protecting an individual’s right to have a fair adjudication of their claim.
Simplified procedures increase accessibility by managing or modifying elements of civil procedure to encourage efficient, expeditious trials, either through simplification of the existing rules, or granting judges greater discretion to manage the litigation process. For example, Rule 76 limits examinations for discovery to only two hours, eliminates cross-examinations on affidavit evidence, examination in chief of one’s own witnesses, encourages summary trial and/or summary judgment where possible, reduces the number and type of interlocutory motions counsel are entitled to make, incorporates a trial management checklist and a schedule of possible witnesses into the affidavit of documents, from which the witness list cannot differ, imposes cost consequences on lawyers who do not proceed in a timely or cost effective manner, and makes the appearance of all parties, with their counsel, mandatory at the pre-trial conference. All of these measures are designed to front-load the preparations lawyers must make, encourage settlement, and encourage the parties, as well as judges, to keep the primary issue(s) at the forefront of the trial, rather than get sidetracked by details that can engender higher costs and longer timelines.
Macdonald categorizes the typical methods used to encourage access to simplified procedures as
- 1) using costs rules to induce settlements; 2) aggregating disputes through relaxed joinder rules; 3) enacting wider rules to prevent re-litigation of the same point; 4) using more relaxed concepts of ‘interest’ and ‘standing’ to reduce parallel litigation; 5) reducing interlocutory procedures; 6) limiting discovery; 7) allowing for quick disposal of “stated cases”; 8) providing for summary trials; and 9) providing for summary judgments.
Simplified procedure rules are therefore designed to allow cases to use the best
process for that individual case.
Simplified procedures may allow judges to encourage or adopt the use of processes outside the strict adjudication model, such as alternative dispute resolution or mediation techniques, in order to encourage settlement. While this is not universally applauded, evidence suggests that the increased flexibility given to judges to manage the litigation process in simplified procedures produces more out-of-court settlements, or at minimum shorter and less expensive trials.
It is a commonly repeated maxim that “procedure should be a servant of the law, and not its master.” In time periods where formalism and strict compliance with rules of procedure has been the norm, adherence to such rules has often led to unfairness and stagnation in the development of the law and of people’s rights. By contrast, in time periods where formalism has waned, and where the merits of a case have been the drivers of procedure, rather than the other way around, the law has seen a greater development a