IV. Part Three: Examining Proportional Procedures

///IV. Part Three: Examining Proportional Procedures
IV. Part Three: Examining Proportional Procedures2017-03-03T18:35:03+00:00

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 and increased focus on individual rights, fairness, and accessibility.  This is supported by statements made by Justice Winkler: “[I]f a procedural code or provision is ornate and intricate, the chances are that it will be expensive and cumbersome to administer for both lawyers and courts and that it will thus detract from substantive justice.

Grey et al. suggest that strict adherence to formal rules of procedure favours the wealthy and powerful in society. The wealthy are most able to hire unlimited legal assistance to represent them, to fill out numerous court forms in strict compliance with a detailed procedure, as well as navigate that procedure so as best to exploit the weaknesses or errors of the other party. Weaker parties may therefore feel pressured to negotiate differently or accept settlements that may be unfair because the cost of proceeding to trial is too high.  Therefore, full adjudication of the claim, and full protection of rights, remains inaccessible.  Wealthier parties are also able to obtain, and pay for, preventative legal advice, before claims are even made; they are therefore better able to manage and mitigate risk, as well as cost and delay.  Those who rely on publicly funded legal assistance are not able to obtain preventative advice in this manner, as publicly funded legal assistance generally requires that a claim already be filed.  Furthermore, the wealthy and powerful are also most able to influence politics and, therefore, the legislative process, to further their own goals.

Research regarding how successful simplified procedure has been at increasing accessibility differs. While its institutional makeup ensures that proportionality is achieved in the procedure itself, it remains unclear (or perhaps simply a matter of divided opinion) whether simplified procedure has really resulted in greater access to the civil litigation system for average individuals. Early results reported by Joseph suggest that in its first few years, simplified procedure was meeting its goals.  Focus groups, comprised of members of the bar and the judiciary, reported a high level of satisfaction with the new rule, including that it resulted in reduced costs to the client, speedier settlement or resolution of the claim, and less delay in getting to trial.  However, Macdonald’s research suggests that it has not been average individuals who have benefitted from the rule, and increased access to the court system for individuals has not occurred. Rather, it is corporations that most seem to benefit from the simplified rules.  Justice Winkler has stated that some of the reforms meant to simplify trials under simplified procedure achieve the result of making the pre-trial stages of litigation more expedient; however, the result was that when cases did proceed, the trials themselves tended to be disproportionately long, as counsel try to work out issues not fully investigated in the more limited pre-trial stages.  They were still shorter than trials not conducted under simplified procedure, but much longer than warranted for claims of that reduced size. Therefore, the results were not proportional. 

Furthermore, Backhouse suggests that, similar to small claims court process, it remains privileged populations that are most able, and most willing, to engage these simplified processes, even though they are aimed increasing accessibility for all populations.  This goal must be kept foremost in mind if any reforms are to achieve, in practice, increased accessibility for all.

What Can Simplified Procedures Show the Probate Application Procedure?

Macdonald suggests that if increasing access is the goal, it rationally follows that simplified processes should be aimed at the types of legal disputes and issues that the average citizen encounters regularly.  As the vast majority of individuals are touched by estate administration at some point in their lives, the probate application process should be a primary target for such a simplified procedure. Rule 76 in Ontario therefore has strong lessons for a simplified small value probate application procedure.

Rule 76 makes clear that simplifying the process, and encouraging flexibility in the application of procedural rules, can lead to more satisfactory resolutions, more efficiency, and therefore improved access.  However, this increased flexibility must be accompanied by additional training and resources, for both court staff, judges, and the public,  in order to ensure that the flexibility is used effectively, and to its maximum potential; fairly, to achieve fair results for individuals, and to achieve those results in a fair manner; and consistently, so that it is available and accessible to all populations, in all parts of Ontario, in all cases where it is warranted. 

 

3. The Social Justice Tribunals Ontario (SJTO)

Administrative law exists at the intersection of society and the state, and is concerned with the regulating the state government’s executive powers.  Each body of the executive, each arm or branch of government, exerts power and enacts decisions that affect society. Administrative law is the law of how they undertake and implement those executive decisions.  As government has expanded, so too has the purview of administrative law. Administrative agencies may have several tools at their disposal to fulfill their mandates, and may provide an internal mechanism for review and redress of the decisions they make . Adjudicative methods, like tribunals or boards, are but one example of the ways in which administrative agencies may undertake that review mechanism.  

In general, administrative boards and tribunals exist to provide a review mechanism for actions and decisions taken by government officials in their administrative, discretionary capacity.  Government officials have been delegated a great number of decision-making powers by legislatures, and administrative law is occupied with ensuring that the limits of those powers are not exceeded:  

  • Most of administrative law involves the close scrutiny of the jurisdiction or authority of a particular governmental official to do a particular action which affects the rights or interests of another person, and this inevitably involves the application of rules of statutory construction to determine precisely what the legislative branch meant to enact.  

Many administrative boards and tribunals adjudicate in areas of law that have profound effects on the populations they serve. Many of these populations are particularly vulnerable, marginalized, or at-risk, such as the elderly, those with disabilities, and low-income populations from all racial and ethnic backgrounds.  To be effective, these boards and tribunals must also be accessible to the populations they serve.

Administrative boards and tribunals, especially those that work with the populations described above, may have rules and procedures that distinguish them from courts and make them a useful study for this project. Procedure from one tribunal to the next can be vastly different;  however, they are typically designed to be a simple and straightforward as possible,  encourage self-representation, and reduce both complexity and the appearance of complexity. They encourage efficiency in the decision-making process by, for example, not requiring excess forms or long timelines:  “[I]n general terms, [this meant] simplified forms, short time-frames, no formal discovery process, relatively informal hearings, simplified evidentiary rules and a more active and inquisitorial role played by adjudicators who have been granted broad discretionary powers.”

Generally, their procedures also have a great deal of flexibility in comparison to those of formal courts.  This flexibility enables them to accomplish their decision-making functions while still treating the party or parties before them with fairness.  Their goals generally include limiting formality and technicality, so as to reduce both cost and delay:  “[F]airness is the essential purpose of all procedural rules. Common sense should prevail over legal formalism.”  Tribunals also often have a great number of guidelines and manuals that are publicly available for users,  to further increase accessibility.

Broadly speaking, then, these tribunals have sought to achieve a proportional balance between accessibility and protection by retaining the adjudicative and decision-making functions of a court, but requiring the minimum of formal procedural requirements in order to enable those functions to continue.  By requiring only that minimum, and eliminating formal requirements that do not strictly serve that adjudicative function, tribunals have increased accessibility through simplicity in the remaining process, as well as in the procedural mechanisms that are retained.

Accessibility, efficiency, and effectiveness were some of the drivers behind the creation of The Social Justice Tribunals Ontario (SJTO), a new administrative super-cluster that came into effect on January 19, 2011. It is an umbrella organization that brings together seven previously stand-alone tribunals under one roof, with a mandate to share resources, rules and procedures.   The SJTO includes the Child and Family Services Review Board, the Custody Review Board, the Human Rights Tribunal of Ontario, the Landlord and Tenant Board, the Ontario Special Education Tribunals (both English and French), and the Social Benefits Tribunal; these tribunals were clustered together because they deal with similar issues or a similar intersection of social injustice issues and, frequently, common users.  While each tribunal continues to hear cases independently and make independent decisions, the resources, rules, and procedure are now commonly centered.  This is part of a more general movement in Ontario to cluster tribunals with related mandates, thereby encouraging them to work together on shared issues.

The goals behind the creation of the SJTO were to increase efficiency of process, share resources, reduce cost, and increase accessibility for shared client populations, all without losing effectiveness or procedural fairness and rigour in the decision-making process.  The creation of the super-cluster has not necessarily resulted in a further reduction of procedural rigour. Rather, it has brought together different boards and tribunals that had each balanced accessibility and procedural rigour on its own, but may have developed different – or worse, duplicate – structures, rules, and procedures, resulting in inefficiency and inaccessibility for common clients.  Therefore, the decision to cluster the tribunals together under one umbrella came out of a desire to further increase accessibility and efficiency, further streamline the process for clients, as well as reduce fragmentation and redundancy.  Many clients of one board or tribunal may also be clients of another – for example, the Landlord-Tenant Board and the Social Benefits Tribunal.  As each deals with similar areas of law, and operates on similar principles, efficiency could be achieved by providing for common procedures and shared resources,  by allowing for staff cross-appointments with a minimum of re-training required, increasing opportunities for professional development and shared resources, and by creating a more seamless client experience. Clients are no longer required to learn, observe, or apply a different set of rules to each tribunal or board they encounter. 

The SJTO has taken this process even further by establishing a common set of rules of procedure, called the Common Rules.  These Common Rules mandate that the member tribunals, and each individual member of a tribunal, adopt, in every case, whatever method or procedure will enable it to most quickly and efficiently decide the issues while also ensuring that the parties before it have the opportunity to know the issues and to be heard.  For example, Rule A3 of the Common Rules of Procedure states:

A3 INTERPRETATION

A3.1  The rules and procedures of the tribunal shall be liberally and purposively interpreted and applied to:

    (a)    promote the fair, just and expeditious resolution of disputes,

    (b)    allow parties to participate effectively in the process, whether or not they
        have a representative,

    (c)    ensure that procedures, orders and directions are proportionate to the
        importance and complexity of the issues in the proceeding.

A3.2  Rules and procedures are not to be interpreted in a technical manner.  

The SJTO Common Rules therefore place proportionality, efficiency and expediency at the heart of the process.

To achieve such flexibility in procedure, the Common Rules allow for a variety of novel procedures and mechanisms, and place a great deal of discretion in terms of methodology and process in the hands of the decision-making members. Among others, the Common Rules allow a tribunal member to waive or vary any rule as needed;  to add or remove parties, or join or sever applications;  to amend any application at any time during a proceeding on notice to the respondent;  to extend or shorten certain time limits;  to control the hearing’s own process;  and to compel or admit evidence.  The Common Rules also grant members investigative powers, which can be extremely useful: for example, the ability to make on-site visits during a landlord-tenant dispute.  These are powers far beyond those granted to judges in a typical court proceeding.

The procedural flexibility of the SJTO demonstrates that increasing accessibility need not come at the expense of rigour. Rather, creativity and flexibility in how and where that rigour is imposed can increase accessibility while still maintaining the protection inherent in robust procedures.

The lessons that this project can take from the SJTO will be considered below, in conjunction with those from the Landlord and Tenant Board.

 

4. The Landlord and Tenant Board

The Landlord and Tenant Board is a relevant example to this project, as prior to the Board’s initial creation, landlord and tenant issues were dealt with through the court system. The current Landlord and Tenant Board administers the Residential Tenancies Act, 2007; its predecessor, and the original administrative tribunal for landlord and tenant issues in Ontario, was the Ontario Rental Housing Tribunal, which was created by the enactment of the Tenant Protection Act in 1997 (the “TPA”).  The Tribunal was created to remove landlord and tenant issues from the purview of the Superior Court and, ostensibly, to create a more fair and accessible system for both tenants and landlord to resolve disputes.

Prior to the enactment of the TPA, rental housing issues were governed by multiple statutes and judicial processes. It was a multi-faceted system that was difficult and unwieldy for individuals to navigate. For example, rent control issues went to an administrative tribunal run by the Ministry of Housing, but eviction proceedings and other, non-rent related matters involved an application to Superior Court.

In the 1980s and early 1990s, criticism began mounting that, among other issues, the Superior Court was not likely the best avenue for resolving landlord-tenant issues or disputes.  Courts are very formal places that have an intimidating atmosphere and the procedure was disadvantageous to unsophisticated parties, as well as parties without legal representation – often, although not exclusively, tenants.   The court, by its very nature, created an adversarial environment that discouraged settlement and cooperation.  The result was a contentious landlord and tenant dispute resolution process, as well as a swamping of court resources.  As well, the process itself was criticized as being too slow and time-consuming, as landlord-tenant issues shared the same court calendar as all other matters, and a significant court backlog existed during that time. 

In 1997, following the resolution at the Supreme Court of Canada of a constitutional question regarding the jurisdiction to decide landlord and tenant issues,  the TPA was enacted. It created the Ontario Rental Housing Tribunal to be an “independent, quasi-judicial tribunal ” to be the administrative decision-making body in all landlord-tenant disputes.

The TPA and Ontario Rental Housing Tribunal regime came under almost immediate criticism.  Some of these concerns were procedural in nature and demonstrate the difficulty of reaching a suitable compromise between accessibility and procedural protection. One relevant example is the so-called “default eviction process” and the criticism that surrounded it.

The default eviction process allowed landlords to obtain an eviction order by default in only five calendar days, not business days, after service of a Notice of Hearing upon the tenant. If the tenant failed to file the required Dispute within those five calendar days, the hearing was cancelled and an eviction order issued based on the documentary information and evidence filed by the landlord.  However, service could be affected by regular mail, and service by registered mail was not required. In practice, this often meant that tenants, especially those in rural or northern areas, or those in large apartment complexes where mail was easily misplaced or misdelivered, had not even received the Notice of Hearing before an eviction notice was obtained.  Data showed that approximately 50 percent of the applications to the Tribunal were dealt with through this default process.  Clearly, this resulted in significant procedural unfairness, with parties not knowing the case to meet or having the opportunity to state their own case before the decision-maker.  Therefore, while it was efficient and less time-consuming than the previous court regime, as well as an easier and more accessible mechanism for some of the parties – namely, the landlords – to achieve a desired result, it lacked the procedural protection for all parties and failed to strike an appropriate balance between accessibility and procedural protection.  The ease of the default procedure was also disproportionate to the result: eviction for the tenant from their home.

Reform consultations regarding the TPA began in 2004, and in 2006 the Residential Tenancies Act (“RTA”) was enacted. It replaced the Ontario Rental Housing Tribunal with the Landlord and Tenant Board.  The RTA eliminated the default procedure described above. Now, eviction proceedings require a hearing in front of the Landlord and Tenant Board.   The required notice periods are based on the reason the landlord puts forth for eviction, but the Board itself also notifies the tenant.  Generally, for issues such as non-payment of rent, the notice period is seven days; for damage-related issues, it is twenty days.  Furthermore, it has been shown that the increase in protective measures under the RTA did not significantly impact the functionality of the Board, which remains able to deal as efficiently with its caseload under the RTA as it was under the TPA.

The default eviction process that existed under the TPA can be viewed as a form of simplified procedure, in the sense that some of the requirements for landlords to evict tenants that existed under the Superior Court regime were eliminated under the TPA in order to increase accessibility to the system, as well as efficiency. The creation of the Tribunal under the TPA was designed to eliminate backlog, encourage expediency, and increase accessibility. A simplified eviction procedure was one element of that process.

However, it can be argued that this simplified eviction procedure was flawed in two ways relevant to this project. First, it provided increased accessibility for only one category of affected party, namely landlords. Second, it swung too far towards accessibility on the accessibility/protection spectrum, and increased accessibility for landlords to the point of eroding necessary procedural protections. As a result, it created unfairness, and lacked proportionality.

The simplified eviction procedure lacked proportionality because the ease with which eviction orders could be obtained by landlords was not proportional to the seriousness of the orders that could be made, nor to the effect of those orders on tenants: eviction from their homes. In striving for efficiency, the default eviction process had eliminated too many of the protective functions that a more rigorous proceduce can provide. Eiminating the requirement for a hearing, for example, having short notice periods, and relaxing the acceptable methods of service meant that the procedure was not rigorous enough to protect tenants from unfairness.

The Landlord and Tenant Board’s changes in procedures and policies regarding tenants remind us that proportionality, and simplified procedures as a means of achieving that proportionality, require an effective and appropriate balance on both sides of the accessibility/protection spectrum: for simplified procedures to be proportional, they must be accessible to all parties on the one hand, but must still offer adequate procedural protection for those parties on the other.

The Board under the RTA shows a more effective example of this balancing than was seen under the TPA. The RTA has rebalanced the eviction process by adding in greater protective mechanisms for tenants, and has also increased accessibility for tenants without necessarily losing efficiency in the process. Therefore, both accessibility and procedural protections are increased. The result is a more balanced and therefore more proportional system.

What Can the SJTO and the Landlord and Tenant Board Show A Simplified Probate Procedure?

The administrative processes and clustering model of the SJTO, and the Landlord and Tenant Board specifically, demonstrate several key propositions for this project. First, they demonstrate clearly that increased flexibility and discretion in decision-making and rule application can increase accessibility and efficiency, provided that they are managed effectively so as not to lead to bias and injustice. This flexibility does not necessarily reduce procedural rigour, but rather allows the rules to be more effectively applied, having regard to the individual circumstances of each case.

Second, the Landlord and Tenant Board more specifically reminds us that balancing accessibility and procedural protection can sometimes require a balance on either ends of the spectrum. Any simplified procedure, used as a mechanism to increase accessibility, must not relax procedural protections too greatly. This project must continue to be mindful of the risks highlighted in Part Two, Section F of this paper, as well as any additional risks that may arise out of individual proposals for simplifying the probate application procedure.

Nevertheless, these examples do demonstrate that an effective, accessible, and sufficiently protective balance is possible. The Landlord and Tenant Board under the RTA has effectively rebalanced the eviction process so as to increase the proportionality between procedure and the serious effects of eviction orders. It has increased accessibility for all parties through the administrative tribunal model, but has also added in sufficient procedural protections. As a result, a greater balance is achieved. As well, the SJTO and the Common Rules give us some further examples of how accessibility can be increased, while maintaining a robust decision-making process.

Lastly, these two bodies demonstrate that we should be creative in our approach to reform. This creativity is one path towards increasing accessibility while maintaining robust procedural protection. For example, the court may not always the best mechanism for processing claims of a certain nature. The creation of a unique tribunal process for dealing with landlord and tenant issues resulted in reforms and an increase in accessibility for both landlords and tenants. Furthermore, the Landlord and Tenant Board is a more proportional system, in that the accessibility of the system is balanced with the procedural protections needed in light of the serious consequences of the orders that the Board can make, such as eviction.

It is possible that the adjudicative, adversarial model that uses the court as the decision-making body for the administrative task of granting a COA in non-contested cases may not, in fact, be the only or best method of making decisions about when, and to whom, a COA is granted. This possibility bears further consideration. The Common Rules demonstrate that flexibility and creativity can result in increased accessibility, without altogether sacrificing procedural protection. These Common Rules still allow the SJTO member tribunals to be effective and protective decision-makers, while increasing user accessibility. This encourages us to consider whether a non-court model could be an efficient, effective, accessible, but nevertheless still rigorous model for the probate application procedure.

If moving to a non-court model for probate applications is not feasible or otherwise desired, the SJTO encourages us to consider whether a more flexible procedure might allow the increase in accessibility that this project seeks. It demonstrates one example where creating a flexible procedure has increased accessibility but has not necessarily resulted in a loss of procedural protection. These models suggests that some of the ways in which administrative tribunals, such as the Landlord and Tenant Board, have exempted themselves from the traditional court process, and the tribunal rules procedures that have resulted, can be useful examples for a simplified probate application procedure.

 

5. The Land Titles Registry and Electronic Land Registration System

At first blush, it may not seem that the Land Titles Registry system in Ontario could have much to say about a simplified probate application procedure. However, if we step back from the court model and look at what functions the probate application system is truly serving, we can see that in some ways, it operates like a registry system already. Therefore, the advent of the Land Titles Registry and Ontario’s Electronic Land Registry System (E-LRS) may have much to show us about a possible way forward for the probate application process.   

The premise of any land titles or land registration system is that owners of land or other real property must register their ownership of such property before they can enforce any of the rights associated with that ownership. This enables conflicting claims to be resolved on a first-registered, first-priority basis, and true ownership to be ascertained in any dispute over real property or real property rights.

The Land Titles system in Ontario is a successor system to the land Registry system, and currently operates parallel to that system for certain parcels of land. Ontario began with a Registry system. Each township had a Register book, in which each Crown grant of land was entered. Any easements or reservations to the Crown on that land were also entered into the Registry book.  Every time the parcel of land was subsequently transferred, the Registry book and original Crown grant were checked to ensure that the correct rights and entitlements to the land were also being transferred.  That transfer and the new owner, as well as details of any new documents affecting title or ownership of that property, were entered into the Registry page for that title, in chronological order by date of registration.  Documents were checked for form, including signature and description requirements, but not for substance or legal effect. 

In 1885, Ontario passed the Land Titles Act, introducing the Land Titles system to the province. Any land registered after 1885 was entered into the land titles system. As a result, most of Ontario is now under the Land Titles system, and only small pockets of historically settled areas remain under the Registry system. 

Modern land titles systems like Ontario’s are a form of Torrens system, a type of registry system based on the International Ship’s Registry. An individual registers their ownership and is granted a certificate of title, or ownership, of that property. Land parcels are described on the title based on plans registered in the system.  The title must display any current, active interests in that property, such as encumbrances, liens, or easements.  Defunct or inactive interests, such as discharged liens or encumbrances, are deleted off the title. This updated record is meant to mirror, on the actual certificate of title, all current active interests and documents registered against the property that are within the system.

The entire system, and each transaction within that system, is guaranteed by the province’s Land Titles Assurance Fund,  an insurance fund that protects interested parties from damages caused by lost, false,  or missing registrations, or by errors on the certificate of title (such as missing encumbrances or discharges) that deprive them of land or their rightful interest in the real property.  Eligibility for claims to the Land Titles Assurance Fund generally include: “fraud, in certain circumstances; errors or omissions by the land registration system; errors in recording land that is bought under the Land Titles Act; errors in recording a registered document in the automated land registration system”.  The Fund can provide compensation for: “financial losses resulting from a real estate fraud or error; reasonable legal costs related to the claim; other reasonable costs related to the claim”. 

The move from a Registry system to a Land Titles system in Ontario was, in itself, a move to increase efficiency. It eliminated the need for an in-depth search of the Registry,  and provided greater certainty by reducing the possibility that something would be missed within the midst of the large Registry books. Since the 1970s, Ontario has been engaged in a project to convert all the previous Registry land into the Land Titles system and digitize all the existing paper records, including maps.

In more recent years, the move towards greater efficiency in the Land Titles system has resulted in the creation of an electronic land titles database, called the Electronic Land Registration System (“E-LRS”). Using digitized data, E-LRS is an online title searching and electronic document registration system that allows paperless registration of documents from a remote location.  Thus, it is no longer a requirement to go down to the Land Titles Office to register documents or transfers, or to search titles.

E-LRS was in part created by necessity, as the pace and sheer volume of land transfers in Ontario by the 1990s was simply too big and too time-consuming for office staff to manage without error. As the backlog grew, any delay in the registration of documents meant that interests in land could be affected after a title search was done, but before the registration of the transfer, making the process for lawyers cumbersome. The time and delay involved in transferring land because of this backlog was being passed on to clients, and costs were rising to unsustainable levels. Government resources were also being taxed and strained, as even finding sufficient space to house all the documents and titles was becoming an issue. Furthermore, the fact that the system was so decentralized was also becoming problematic, as different offices may enforce government policies and procedures in different ways, resulting in a lack of continuity and creating frustration. The delay, uncertainty, and cost were threatening the entire system.

As a result, the goals of E-LRS were to modernize the land titles system in Ontario and make it automatic, simple, and standard across the province. This was to be done by computerizing all the information, thus enabling automated document production and registration, and online title searching. This would also create one centralized online system, accessible from anywhere, with all the information about a given parcel of land in the province. This would reduce the costs of conveyancing for the lawyer and therefore the client, and save government resources on space, staff, and disputes.

There were, of course, risks to moving to an electronic system like E-LRS. Many of these risks remain today. Fraud, in terms of mortgage or title fraud, remains a significant concern and serious issue.  In an electronic system, the risk of identity fraud, fraudulent powers of attorney, and/or cheque fraud increases, and these are the most common sources of serious issues within E-LRS. 

Ontario has tried to tackle the risks of fraud in several ways. First, Ontario has tightened the requirements around client identification. Clients are required to provide a greater number of specified types of identification before any transaction can proceed. Second, Ontario now requires two independent lawyers on each transaction, one representing the vendor, and one representing the purchaser. This acts as an additional check on both client identification and a separate check for signs of fraud.

Third, Ontario has restricted access to E-LRS by requiring users to register in order to gain access. By law in Ontario, only lawyers can give legal opinions about the viability and marketability of a title to land. Therefore, access to E-LRS has been restricted, as only lawyers, conveyancers, and real estate professionals can be registered. This restricted access further reduces the risk of fraud and/or misuse, whether intentional or not, of the system.

Lastly, as we have seen, the Land Titles Assurance Fraud provides a safeguard against loss from fraud. While the Assurance Fund may not prevent fraud from occurring, it does address the risk of loss from that fraud by allowing compensation not only for losses stemming from administrative error, but for losses stemming from real estate fraud as well.

For the Land Titles system, then, a reduction in procedural rigour through the adoption of E-LRS has meant an increased risk. However, the increased risk is warranted by the gains made in the system as a whole. Furthermore, the measures described above show that the increased risk can be managed. As a result, E-LRS has managed to increase accessibility by making the Land Titles system less expensive, more effective, and more efficient for both users and the general public, while still keeping in place the procedural protections required.

What Can the Land Titles Registry and E-LRS Show a Simplified Probate Application Procedure?

E-LRS, and the Land Titles system generally, essentially act as a repository for required documentation and a centralized database for the searching of that documentation. They do not examine the substance or legality of documents. Legal opinions about the nature of the titles and documents registered are still left to legal professionals. In some ways, the registration of probate application documents with the Court is quite similar, in that the Clerks accept the documents for registration, but merely check them for form and for completeness. The legal opinion about the substantive completeness of the documents is left to the judge who reviews the application.

With this similarity in mind, the Land Titles system and E-LRS can show us one path forward for a simplified probate application procedure. Technology is often discussed as one answer to accessibility issues.  The probate system often also has concerns about efficiency of the application procedure, physical access to the registry, the standardization of information and policy across the province, costs to the system, the government, and the client, and variations in document production by clients or lawyers that slow down the application procedure even further. Within Toronto, although not necessarily outside of Toronto, issues with backlog at the registry and delay in obtaining the COA following application are also sometimes seen. These mirror, in many ways, the concerns that existed in the Land Titles system, which prompted the move to E-LRS. This suggest that increased use of technology may be one path towards increasing accessibility and efficiency while maintaining procedural protection. As we have seen above, technology can reduce costs and delays, and increase access to the court system for those in rural or remote communities that do not have physical access to a court registry. 

It is important to recall that increasing efficiency in this manner is not necessarily the goal of this project; rather, increased accessibility is sought. Technology can certainly increase efficiency in the system, and can address the concerns above. It can also address some issues of accessibility, such as physical accessibility, for some populations. However, technology can also create a barrier for other populations, as not everyone is sufficiently literate or technologically literate to access and successfully use such a system to its full potential. Therefore, any recommendations regarding the use of technology as a means to simplify the probate application procedure must take this potential barrier into account.

The move to an electronic registry system could have significant benefit for the probate application procedure, keeping in mind the potential barrier that it may create. Ontario would not be the first jurisdiction to adopt such a system for small value probate applications, lending credence to the idea. This will be discussed in more depth in Part Five, Section G, below.

6. The Children’s Law Reform Act

The Office of the Children’s Lawyer, a branch of Ontario’s Ministry of the Attorney General, is the representative for minor children in civil law matters, including estate and trust matters.  Where a child under 18 is a beneficiary, or otherwise entitled to money or property from an estate, the Office of the Children’s Lawyer requires notification of an application for a COA, just the same as any other beneficiary or person entitled to any portion of the estate.  The Children’s Lawyer will then involve itself in the sale of any property in the estate where the property is sold for distribution to the beneficiaries.  Furthermore, for estate entitlements over $10,000.00, the estate representative cannot pay the money to the minor child directly, nor to their parent or guardian to be held in trust for the child, unless stipulated by will. Section 47(1) of the Children’s Law Reform Act, R.S.O. 1990, Chapter C.12, (the “CLRA”) requires estate entitlements over $10,000.00 to be paid into court and held for the benefit of the child until the child reaches the age of majority.

However, where the estate entitlement is less than $10,000.00, s.51 of the CLRA specifies that the entire amount of the entitlement may be paid to the child’s parent or other lawful guardian, for safekeeping for that child.

Therefore, the CLRA is a further example of the balance between procedural protection and accessibility, and furthermore is an example of using monetary value as the threshold mechanism for determining the procedure to apply. By allowing for a different, more straightforward procedure for smaller value entitlements, the CLRA has increased accessibility of the procedure, and reduced the delay associated with increased procedural requirements. However, it has done so by sacrificing some of the procedural protection provided by paying the entitlement into court: namely, that the money may be mishandled or lost by the parent or guardian.

Despite this risk, the two-tier system in the CLRS appears to be a fair compromise when one balances the amounts involved on the one hand, and the extra requirements and procedures an estate representative must undertake when paying money into court on the other hand.

What Can the Children’s Law Reform Act Show a Simplified Probate Application Procedure?

The CLRA is another successful model of using monetary value as the threshold for determining procedure. Furthermore, it creates a precedent in the estates context for using low monetary value as the driver for a simplified procedure or for the application of relaxed rules. While this relaxation of procedure and rules may invite risk due to the reduction of procedural protections, both the risk and the procedure may presumably be considered to be proportional to the values at stake.

 

7. Other Processes Not Considered Here

There are other processes that have balanced accessibility and procedural rigour, and which have used monetary limits as the threshold for accessing a different procedure. Two further examples in the commercial realm were found . Both processes use monetary value as the threshold for determining which procedure is to be used. However, as they are substantively very different from the probate application process, and therefore not relevant to this project, they will not be examined in this paper.


B. Is There a Difference Between Adversarial and Non-Adversarial Processes?

The increasingly managerial role given to judges in simplified civil litigation procedures and small claims courts,  as well as their more investigative role and greater discretion to manage the adjudicative process that characterize administrative tribunals, are both somewhat removed from the traditional, adversarial model of justice upon which our current court system is founded.  As Roderick Macdonald explains, in a survey of access to justice in Canada, the adversarial system:

  • presupposes a fixed evidentiary record, and the existence of precise legal rules that antedate the dispute. It leaves the management of the process in the hands of the disputing parties, on the assumption that settlement of the dispute is more important that development of the law, and that the judge’s primary role is not to produce justice, but to resolve the dispute between the parties. Together, these propositions suggest not only that judges should not manage civil litigation, but that the parties themselves should decide both the shape of the dispute and the procedural mechanisms for handling it. Of course, it is precisely these built-in structural features of adversarial adjudication that are in view when it is suggested that the process can be improved to enhance access to justice.

We have seen above that increased flexibility, and increased accessibility, are hallmarks of the procedures examined here, such as the SJTO, the Landlord and Tenant Board, and, to some extent, E-LRS. Even Small Claims Court and Simplified Procedure have relaxed some of the procedural rules of the court system, and therefore to some extent moved away from the model of traditional litigation. The fact that these models have all moved, in varying degrees, away from the adversarial model in order to increase accessibility says something significant about the adversarial model’s ability to render justice accessible to all.

Furthermore, the non-court models contemplated in the SJTO, Land Titles Registry and E-LRS, as well as the move away from traditional litigation in the Landlord and Tenant Board, demonstrate that a non-court model can further increase flexibility, and therefore accessibility. Non-court models can retain an adjudicative, even adversarial nature,  but are better able to respond to the individual needs of users and situations. They are better able to be creative in addressing accessibility and proportionality, because they are not hampered by needing to emulate, in some way, the traditional court model. These non-court models suggest multiple ways to increase accessibility in the probate application system.

It can be argued that models such as the SJTO and the Landlord and Tenant Board, which have incorporated a move from traditional litigation to a more administrative model, may reflect more of a difference in degree, rather than a difference in nature altogether. That is, they remain adjudicative decision-making bodies, and still serve many of the same functions of a traditional court. The changes made through the administrative law context, such as increased flexibility and discretion in decision-making, are changes to the ways in which the adjudicator can do his or her job, but are not fundamental changes to the role or function of the adjudicator. Certainly, the changes made to create Small Claims Court or the Simplified Procedure under Rule 76 are also changes of degree, not nature. This begs the question whether a wholesale change to a non-court model is truly necessary for the probate application procedure. Or, can sufficient changes in degree be made within the court system already in place to accommodate additional flexibility in order to increase accessibility?

The probate application procedure, where uncontested, is non-adversarial. Nevertheless, the ways in which simplified adversarial procedures and administrative tribunals have moved away from the fully adversarial litigation model can suggest some mechanisms for increasing accessibility in the current probate application system. Increased discretion for court staff, or an increased mandate and training to assist self-represented individuals with non-substantive issues, an increased role for judges to manage probate applications where the estate already appears likely to be contentious, and increased, accessible self-help legal guides could be helpful in addressing the accessibility issues relating to cost, delay, complexity, the perception of complexity, as well as physical accessibility.  As well, a relaxed procedure, increased informality,  and the discretion to modify procedure where rigour is not required in individual cases would increase efficiency and expediency in the probate application procedure.

Concrete suggestions for increasing accessibility and proportionality in the probate application procedure will be considered in more detail in Part Five of this paper.

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