In England, Justice is Open to All — Like the Ritz Hotel

Sir James MathewThis was probably first said by the Irish judge, Sir James Mathew (1830–1908), pictured here. But it might also apply to the courts of Canada.

An Ontario judge has turned a routine decision into a scathing critique of the province’s justice system, warning its courts are increasingly “only open to the rich.” Ontario Superior Court Justice D.M. Brown made his pointed commentary in a ruling last week on a preliminary matter in a lawsuit York University launched against former assistant vice-president Michael Markicevic, accusing him of masterminding a $1.2-million fraud. The case is a year-and-a-half old, accruing hundreds of thousands of dollars in legal costs, with no trial date in sight. “Such a state of affairs reflects an unacceptable failure on the part of our civil justice system,” Justice Brown wrote in his June 25 decision.

At the root of the problem is a belief that “trials are bad” and “mediation will solve all problems,” which took hold in recent decades and sapped the will to move cases swiftly to trial, Justice Brown said. “One cannot overstate the oppressive effect on judicial morale of the endless waves of cases which seem to be going nowhere in a civil justice system that is sinking,” he wrote. “Why try to be creative when the system, with a life of its own, grinds relentlessly on and downward?”

Ontario’s woes are common in other provinces, especially in larger cities. “It’s definitely a national problem,” said Melina Buckley, a Vancouver lawyer who chairs the Canadian Bar Association’s committee on access to justice.

Canada scores poorly on access to civil justice, ranking ninth out of 16 North American and Western European nations and 13th among the world’s high-income countries, just ahead of Estonia, according to the World Justice Project’s Rule of Law Index for 2012-13.

Lengthy legal cases become untenable as defendants remortgage their homes and deplete their savings to pay mounting costs. Lawyers for Mr. Markicevic, his daughter and her mother (who are co-defendants) bill between $250 and $850 per hour, meaning a 10-day trial with preparation time could cost them $425,000.

Speculating that the defendants’ final legal bills might top $800,000, Justice Brown worries they could run out of money before a trial wraps up.

“If we have reached the point where $800,000 cannot buy you a defence to a $1.2-million fraud claim, then we may as well throw up our collective hands and concede that our public courts have failed and are now only open to the rich,” he writes.

Source: The Globe and Mail, July 3

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7 responses to “In England, Justice is Open to All — Like the Ritz Hotel

  1. Sadly, the reality is that “justice” (or at least access to it) is a commodity to be bought and sold. “The law” is a related matter.

  2. Mr. Justice Brown is not the first Canadian jurist to issue strong public comment on the “access to justice” issue, which has been assuming ever greater significance in recent years. Members of the Bench and Bar alike have gathered, discussed and pontificated. With rare exceptions, little improvement has resulted.
    Many observers lay the principal blame on the profession of law, its practitioners, and its self-regulating authorities. No convincing case has been advanced to displace that attribution of responsibility.

  3. Fred Langan

    Just for openers the Law Society should be outlawed as a price fixing cartel. Anyone should be able to plead a law case. For a brilliant critique of corrupt modern lawyers read a piece in The Spectator by, I think, Ferdinand Mount.
    Justice Brown should be given the Order of Canada.

  4. Michael Gundy

    Add to this problem, the curse of lawyers taking on contingent suits in the hope of shaking down a defendant before the trial.

  5. Henry Lotin

    One element forgotten here is that effective public regulation of the marketplace mitigated the demand for civil litigation. The removal of powers and resources from public agencies over the last couple generations leaves monopolists and other abusers with the advantage of the high barriers to entry of the legal system. Reinstituting smart regulation will reduce demand for overpriced lawyers.

    One blatant example is the exponential increase in abuse of workers in the workplace (unpaid overtime, cash payments, unjust dismissal and the like). Labour lawyers are cashing in when the (re)hiring of labour inspectors and a new culture of enforcement would address many of these issues.

  6. Jan Krouzil

    On a much more ‘modest’ scale, if it were otherwise, my family would have likely emerged from the ‘draining’ divorce and child custody legal proceedings intact.

  7. After an apparent 2 year police investigation the charges were withdrawn by the Canadian prosecutor who says there is no objective evidence (in a fraud investigation?) and that the witnesses initially relied upon are not even remotely credible. All this AFTER these same witnesses have apparently been promised immunity from prosecution? Interestingly the prosecutions own findings uncovered that the police offered inducements (civil and criminal) to these witnesses who admitted to the fraud if they agreed to implicate Markicevic.
    Furthermore, York University after having hired Navigant, a renowned investigative forensic accounting firm, to conduct an extensive forensic audit, focussing on Markicevic, failed to uncover any evidence of wrongdoing. While York continues to claim it has all kinds of evidence one must ask where this evidence (other than the claims of 2 admitted fraudsters) and why has it not been presented during the court proceedings? Seems the only card York has left to play is dragging this guy through the mud hoping something sticks. As for his “bogus degree” seems the facts surrounding that have been unclear in that court documents indicate he never claimed he had a degree from Auburn and openly provided York with all his credentials for their review before he was hired.
    Looks like the media has in this instance lost its objectivity and jumped on the “got-em bandwagon” and failed to follow up with what seems to be a bizarre Canadian court proceeding.