Appellate Hypertrophy in the Canadian Justice System

Is the re-examination of past decisions sapping the justice system’s capacity to hear and decide legal disputes at first instance? Our system has numerous ways to reopen past decisions and let a new set of adjudicators and advocates root around for errors: review, reconsideration, and motions to set aside or reopen as well as appeal itself.

These re-examinations constitute a necessary organ, which serves essential functions in the justice system: correcting legal errors, delineating and refining legal rules, making new common law, and ensuring that administrative decision-makers do not exceed their jurisdiction. And yet these procedures have arguably been allowed too much of the time of Canada’s adjudicators and advocates, at least in civil and administrative matters.

Hypertrophy refers to the overgrowing of an organ in the human body, which saps the ability of other organs to do their work. Appellate hypertrophy is the diagnosis if the Canadian justice system does too much reviewing, appealing and reconsidering of past decisions. This syndrome can undermine primary access to justice – the ability of Canadians to obtain adjudication, or a just settlement brought about by the prospect of adjudication, from a first-instance court or tribunal.

Canada Bread: A Slow-Baking Loaf

Our country’s case law is riddled with legal sagas that stretched past the decade mark, and cost hundreds of thousands if not millions to litigate, in large part because of the number of appeal and appeal-like procedures they included. One that jumps off the page is the Canada Bread Company saga, which began in 2002 with a decision of Quebec’s pension regulator. That was overturned by a review panel in 2003, which was affirmed by the Administrative Tribunal of Quebec (ATQ) in 2004, which was upheld on judicial review in 2005, but overturned by the Quebec Court of Appeal (QCCA) in 2008. The Quebec National Assembly then passed a bill to undo the effect of the QCCA decision.

At this point the dispute went back to the original administrative decision-maker, which ruled again in 2009, followed by an ATQ appeal decision in 2010, judicial review later that year, a second trip to the QCCA in 2011, and the Supreme Court of Canada decision in 2013. A decision of the SCC might seem fatal to the continuing vitality of any lawsuit. Canada Bread, however, had two last gasps, generating a decision of the Quebec regulator in 2015 and another ATQ decision in 2016.

Canada Bread, which is extreme but not entirely unrepresentative, illustrates two aspects of the Canadian system that make it vulnerable to appellate hypertrophy.

First, without reconsideration — whereby a reviewing court, instead of making an order to finally dispose of a dispute, sends it back to the “square one” decision-maker –  Canada Bread could never have lurched onwards for 14 years. Second, this lawsuit showcases the byzantine multiplicity of appeal levels between first-instance decision-making and the highest court. There are often multiple administrative appeal options to be exhausted before it comes to a court on judicial review and then of course becomes subject to further appeals. In Ontario, some minor civil and administrative decisions can be reopened three times: first at the Superior Court of Justice, then at the Ontario Court of Appeal, and then at the Supreme Court of Canada.

What’s the Appeal?

Although most civil and administrative decisions are never appealed or reviewed, Canadian law ensures that re-examination is almost always an option, for any party that can afford it. Almost any decision can be appealed or judicially reviewed. Even civil jury verdicts, which leave no reasons to be reviewed, can still be “reviewed” and overturned.

Appeals may be taken to delay compliance and put pressure on the adversary, without any good faith belief that an error was made. A class action lawyer recently told me that, in a proceeding worth tens or hundreds of millions, he believes many defendants will almost automatically appeal any ruling against them. His view was that the value of postponing the moment when the defendant will have to pay, combined with modest adverse cost awards risk on appeal make this the economically rational choice regardless of the perceived merits of the decision below.

Why More Appeal means Less Primary Access to Justice

Why would appellate hypertrophy reduce access to justice for those seeking first-instance adjudication? The first reason is the scarcity of resources, both public and private, available for justice-seeking. The more judge and lawyer hours are spent on appeals and appeal-esque procedures, the fewer are available to spend on first-instance matters. Every time a litigator moves into appellate work — which many seek to do because of its greater prestige, “purer” legal problems, etc — clients seeking first-instance help lose their services. The same goes for judges who are “elevated” into appellate courts, and the first-instance judges (e.g. in Ontario’s Divisional Court) who become unavailable for trials because they are spending their days going over tribunal decisions already made.

Hearing and deciding legitimate & unsettleable legal disputes once is arguably more important than hearing and deciding a few disputes many times, especially if the small group of lawsuits consuming resources on appeal is distinguished chiefly by having parties litigious and deep-pocketed enough to engage in appellate litigation.

There is a second reason why more appeal means less first-instance adjudication. The risk of appeal changes the calculus for justice-seekers who are deciding whether to assert their rights in litigation, or abandon them. Potential litigants with meritorious cases , when deciding whether to fight or roll over, ask their lawyers “how much could it cost to litigate,” and “how long might it take.” The more scope there is for JR and appeal, the larger the numbers are in the lawyer’s response, and the more likely the person is to roll over and abandon their rights. Ample scope for JR and appeal also helps “giv[e] to monied might the means abundantly of wearing out the right,” (as Charles Dickens wrote of England’s 19^th century Court of Chancery), because a deeper-pocketed or more patient party knows well that their adversary might well be scared off or forced into an unjust compromise by the prospect of endless, Canada Bread-style appeal.

The appellate hypertrophy problem is not unknown to rule-makers and adjudicators. Ontario’s Civil Rules Committee is currently considering abolishing automatic stays pending appeal, which would reduce the incentive to file in order to delay enforcement. More dramatic potential remedies for appellate hypertrophy include (in ascending order of ambitiousness):

• Hearing more appeals and judicial reviews in writing, which is considerably more affordable for parties and the system than oral hearings
• reducing or eliminating the use of multi-judge panels on appeal & JR, to economize on judicial labour (as proposed by the Civil Rules Review)
• routing all appeals and judicial reviews to provincial appellate courts, freeing up trial-court judges for first-instance adjudication
• for cases extremely likely to be heard by the Supreme Court of Canada (due to deep-pocketed litigants and high public importance), skipping some or all of the intermediate appellate stages

The Wisdom of Letting Go

“People want their day in court,” Madam Justice Abella once said, “not their years.“ The wide scope our system offers for appeal, judicial review, and reconsideration is a major reason why it often takes so many years to get to the end of litigation in this country.

Unlike incarcerated people in the criminal system, civil and administrative litigants disappointed by a decision almost always have the option to move on with their lives and their businesses. Sometimes they shouldn’t, but very often they probably should, even if some error was made. As for the justice system, it must calibrate the scope it offers for appeal, considering not only the functions of this organ, but also the evidence that appellate hypertrophy is undermining primary access to justice in this country.

The post Appellate Hypertrophy in the Canadian Justice System appeared first on Slaw.