Written by Jon Khan, a Ph.D. candidate at Osgoode Hall Law School. If you’re interested in learning more about how Jon’s trying to gather data about Canada’s legal system, check out his research webpage or his current survey of Canadian litigants.
Canadian judges issue thousands of detailed judicial decisions each year. These judicial decisions are supposed to:
prove that judges acted impartially;- help ensure fair and accurate decision-making;
- lessen the chance of judges overlooking or underemphasizing important factual or legal points;
- help the law develop uniformly;
- provide public accountability; and
- allow appeal courts to review lower court decisions.
Despite these many benefits, Canadian judges did not have to provide such detailed judicial decisions to Canadian litigants until somewhat recently. But, over the past 25 years, Canadian law on this duty has significantly evolved. And now, a Canadian judge’s duty to issue reasoned judicial decisions has become inherent to their job.
Canadian judges do not just owe that duty to individual litigants — they owe it to the entire public. This duty makes sense. Reasoned decisions are the primary mechanism by which judges explain their decisions to litigants and to the public. They also justify and explain the result to the losing party. They show the public that justice is done. Put simply, judicial decisions are central to the legitimacy of judicial institutions.
Despite this duty and the importance of it, little is actually known about most people’s experience with Canadian judicial decisions. Moreover, little is known about what litigants and lawyers need and want from judicial decisions, or even what they understand about the decisions they do receive. Similarly, from the public’s perspective, little appears to be done to try to understand or resolve the increasing delay, length, and complexity of many Canadian judicial decisions. In short, despite Canadian judges having this important duty, little to no data or input from the public or litigants guides them in performing and meeting it.
The limited information and data that is available in Canada and similar jurisdictions suggests that lots could be done to reform the process of judicial decision-writing and perhaps make decision-writing and reading more efficient for both judges and litigants:
- Australian survey data suggests that decision-writing is time-consuming and unrelenting;
- U.S. survey data suggests that decisions’ length and complexity is a long-standing problem;
- U.S. focus group data suggests that some readers care more about decisions’ outcomes than their reasoning; and
- Canadian research suggests that some Canadian judicial decisions are getting longer, slower, and likely more complex.
Some research suggests that a possible way to improve Canadian judicial decisions and the Canadian legal system more broadly is by better understanding the experience of justice system users — including both represented and self-represented litigants. Many problems might be better addressed if litigants were taken into account and if they were consulted about what they need from judicial decisions.
For example, if courts and judges better understand what litigants need and want from decisions, perhaps judicial decisions could become shorter, timelier, and less complex. This understanding could have multiple further implications for the following:
- Improving Access to justice. Litigation could become cheaper, faster, and more consistent. Judges could speedily and predictably resolve disputes and write clear, short decisions. With more predictability, more individuals could avoid litigation, and some current burdens on court resources could be alleviated.
- Canada’s legal data deficit could improve. Data could be better accessed in shorter structured decisions and thus more amenable to analysis. We could more quickly gain fundamental insights about our legal system that we currently lack.
- Parliamentarians and courts could deliberately design user-focused laws and processes. Parliamentarians could use newly acquired data to design new user-focused laws and processes, and such laws and processes could become more inclusive, fair, and just. Similarly, courts and judges could use that data to improve the judicial process, decision-making, and how individuals access justice in Canada’s legal system.
These outcomes could bring Canada closer to achieving the constitutional promise of intelligible, accessible, and predictable justice. Designing better judicial decisions would be an integral step in creating a more just, proportionate, and fair legal system.
Many improvements are possible, and I am far from sure what would work. But I do know that many possibilities should be explored — including gathering fundamental insights from litigants such as: what they take away from decisions; how decisions impact their lives; and what they need to better understand the legal processes and issues discussed in decisions.
These duties by Judges ,Ethical principle’s, Guidelines for SRL must have teeth. If the Judges cannot follows the rules and formats, etc.. Then it must be legislate they can be dismissed.
SRLs (such and you and I), know judges write decisions that lack reasoning just to cheat SRLS. They do not do it with lawyers. When the judges decision provides plausible reasons why I cannot and did not get what I asked for, I accept the decision and go home happily, otherwise I appeal. Judges take offence and even declare SRL vexatious because they appeal or make applications. Each time I get a reasonless decision, and think it could not be worse, I get a worse one. On my most recent foray, the judge (actually judges/panel wrote to the effect that, I was insubordinate to refuse to steal my employer’s money that was entrusted to my care/or that I was wrong to refuse access to those who have no right to said funds. The transcript of that hearing would astound you: The judge’ behaviour was scandalous. I plan to make it public when it suits me. The decision also said, the labour board thug, did not embark on a process contrary to my employment agreement (ie. Breach my contract) per case law (Dunsmuir), though he changed the terms considerably, because he mentions some events of some certain dates. I filed appeal with one ground being the court said I should be a thief and steal my employers money (COVID saved them the embarrassment). I could go on and on, This study should definitely look at my case/decision even if just to provide entertainment, not to mention enlightenment to researchers)
I was taken, on an urgent application, to the Ontario SCJ for endorsement of an arbitrator’s labour decision. The judge refused to even consider the false evidence used against me. She ruled to endorse the decision, based on administrative provisions. I filed an appeal, which was turned down by a panel of 3 appeals court judges. I then complained to the CJC, who refused to investigate it. They said my only recourse was to go to the Supreme Court (over a minor labour arbitration!)
The justice system is broken in Ontario. It has become a “legal system”. Even the clerks and registrars are doing everything in their power to avoid having cases go to court. We’re up to 3 years in Small Claims Court!
Change “legal system” to illegal system. We need protection in our courtrooms and we should start demanding that from our government. Make it an election issue
Hello, would you be able to expand on how you completed the process? It seems quite cumbersome for a layperson.
Justices dismiss SRL at the very first instance presented. The solicitor can jack around timelines, submit letters to the court without proof of service as the registry refuses to file the SRL documents for every, any reason. It is a closed gaslighting system which operates as a web to collect as much funds as able while also generating more grievance and generating more funds….etc. A bunch of paid by the piece workers (solicitors) exploiting their position at the garage we all need to take our broken down issues to, W5 call it racketeering when these become expansive, the problem here is the referees calling the offsides are the SRL easily being dismissed as nobody wants to listen as it could be implied that hearing had occurred. Tension and anger builds not just here but globally.
I could not agree more!
Dream on! Only professionals who by law, can not be taken to court!
I had documents commissioned at the court house and then they refused to file them. Go online was the response, when I went online, it stated clearly that filing them online was NOT mandatory, filing at the courthouse was an option . I returned to find a group of clerks sitting around a desk chatting. When I showed the clerk the printout from the website clearly stating I could file in person , she stated the website was outdated, the wrong website etc etc. When I proved her wrong, she became annoyed and called security.
I then tried to contact the court office manager. I left 6 messages over the course of 2 months. On my final attempt she picked up the phone. She told me to come to the court and she would file it. When I arrived, she spent 5 minutes looking at a 1 page form. I said, it has been commissioned what is the issue? She replied, I have to make sure it is correct. I replied your office commissioned it, it has already been reviewed. She then claimed I will have to review this with my staff and asked me to take a seat. After 10 minutes I realized this was just another game to frustrate me. I got up and left. A clerk then said where are you going we’re not done. “Home, I think you need to hire a legal team to figure this out” I replied. She then responded, “That’s what happens when you refuse to do it online”. This contempt for non lawyers using the legal system is part of the culture from top to bottom. This is one of many examples. When I contacted my MPP detailing the staff’s refusal to follow the rules according to the ministry website, my emails were ignored. That’s an NDP member of parliament. Those who are supposed to fighting for the little guy.
What do we need and want from Canadian judicial decisions? Honesty. Clarity. Timeliness. The answers are fairly obvious.
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The record of decisions my efforts created is replete with the opposite of those. Many commenters here on the NSRLP blog have said the same thing about their own experiences.
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Take a look at this decision – https://cjc-ccm.ca/sites/default/files/documents/2022/Report%20to%20the%20Minister%20-%20Dugr%C3%A9%20matter%20EN_0.pdf . It was rendered not by one judge, or three, or nine, but by twenty-five federally appointed superior court judges, all listed on the last page. And the date on it is December 19, 2022, about eleven months ago. Since then there has been no mention of this matter, notably I suggest by the media / press corps. Justice Dugré is still a judge, with all that means, including I presume an office at the courthouse. There is a great deal to question in this matter. And no one is asking any questions.
My regular routine on the Net includes searching on the term “access to justice” to find what the media has recently reported. Law360 Canada (formerly The Lawyer’s Daily) is a leading periodical for lawyers. My search just found an article published today and entitled, “How litigation financing helps companies, promotes access to justice for businesses” – https://www.law360.ca/articles/53003/how-litigation-financing-helps-companies-promotes-access-to-justice-for-businesses . It occurs to me that some of the parties who are forced to go to court self-represented might be the owners of small businesses dealing with business related legal issues. I think that for such parties this article offers nothing.
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I also think we should all be very concerned about what this article is promoting.
What do we need and want from Canadian Judicial decisions?
1. We want investigations or charges alleged when the judges break the law, same as any other citizens.
2. We want to get involved in the process of judicial decision.
3. We want the all decisions transparent.
4. We want mandatory reviews for the judges get more than 4 complains since becoming a judge
5. We want a detailed complain report regarding the complains received at least once a year
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6. We need timely interfering when the judges not follow the rules or laws, before the appeal is finish
7. We need higher standard when evaluating the judges conduct, due to the nature of the job
8. We need Judicial committees to lower the bar to discipline the judges who break the rules or procedures
9. We need clarity on how to classified and identified misconduct
10. The most of important, we need people to do this job with higher integrity and honesty.
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Keep dreaming on what we need and want………..
What I want really is the end to the game playing. I got lucky because my circumstance brought the real nature of that game playing into sharp focus for me. The games include the rhetoric of the “right”, riding a wave of negativity, but equally the “left”, whose rhetoric is a lot more interesting. Contrary to all the claims about the efforts to raise the public’s understanding of important matters, the real agenda has been to make us functional illiterates, certainly at least with respect to law and legal process. The earliest bit of evidence in what became a long story is the B.C. legislature’s debate of the then new section 13 of the Labour Relations Code on November 26, 1992 (with the current Deputy Premier, Mike Farnworth, “in the chair” in the middle of that debate) – https://www.leg.bc.ca/documents-data/debate-transcripts/35th-parliament/1st-session/19921126pm-Hansard-v6n24 .
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The debate was, to put it mildly, animated. And subsequently the provision was amended to remove the key term it featured – without again involving our legislators. If that was legal, I’d like to hear from anyone how. That debate should be printed, framed and hung on a lot of walls, as a warning. Later chapters in that story include the BC Labour Relations Board’s lengthy record, easily reviewed on CanLII, of using that provision. In February 2003 the Chair wrote a “decision” (it decided nothing) in response to a success I had enjoyed in the BC Supreme Court just a month earlier. The current Chair of the Board happens to also be the current president of the International Association of Forensic and Legal Linguistics. I’m going to be taking advantage of that fact.
Lucy, after some seriously questionable encounters in our courtrooms, I sat and thought about ways we could action many of what you listed as our needs and wants, and I have been advocating for a while now that we make SRL issues an election issue and demand we have representation on any panel that appoints and /or promotes judges. I am sure, this will give us a voice and every judge will respect us and our rights as litigants, and lawyers will not have the illegitimate expectations they now bring to court. If we do not appropriately organize ourselves and make our voices heard this sort of courtroom bad behaviour will continue
My experience accessing law as a SRL adjoins in some instances and departs in others. The ways I was successful were on the teachings of two profoundly amazing lawyers.
I learned how to ‘engage’ the Law Society, who will ignore you if you let them. I learned how to deal with badly behaved opposing counsel by the following steps: a) became broadly aware of the Rules of Professional Conduct ostensibly abided by the Law Society of Ontario. The LSO: The Law Society generally will not investigate badly behaved lawyers if the matter is ongoing. That does not stop you from keeping the Law Society abreast of the legal improprieties and/or legal mischief of the opposing lawyer. I a) filed the complaint b) advised the Law Society I was not agreeable to the apparent indifference by silence and that I would be keeping them abreast of any and all ongoing misconduct.
I copied the opposing lawyer on each correspondence., very important. My correspondence was factual on the conduct with dates and times and occurrences of legal mischief. Keeping the Law Society updated, also keeps you from being distracted by the antics. To ensure transparency, copy the opposing lawyer each time.
The Law Society cannot be allowed disengage by posturing. Prepare you complaint, copy the opposing counsel and file. Be concise, clear, point to the Rules of Professional Conduct or Civil Procedure being violated and how you wish for them to intercede. The opposing lawyer will back off. It is only when we take the action to keep the Law Society engaged where they must be engaged, i.e.., badly behaved lawyers, that they will start to listen and act. Waiting until after the matter has concluded allows the Law Society to generalize your complaint, whitewash and/or disregard the evidence.
Judges: There are some awesome judges. Most judges, however, are not. From two profoundly amazing lawyers, I was taught how to keep a judge’s attention to the best of my ability. FIRST: Do NOT assume the judge knows the law in your specific matter or is even interested. This is an issue every person, lawyer or SRL, faces. Rogers Partners has an amazing article on preparation at Oral Advocacy – Tips and Techniques by Rogers Partners LLP Oral-Advocacy-Tips-and-Techniques
Give the judge an overview of the legal elements required to be adjudicated. Prepare your argument around the legal test to be met. Pick you strongest evidence to fit the legal test to be met. When you have completed one argument, advise the judge that you have completed your submissions on that element. Ask the judge is they have any questions. That ensures the judge is listening and engaged, that you expect they are so.
Stay quiet during the opposing counsel’s presentation. Listen for distractions from the legal test and irrelevant commentary. Lawyers may attempt to distract the judge from the strength of a legal argument with the goal of creating a distraction, compromising your legal argument. When that happens and it is your turn to speak, bring the judge back to the focal point, the legal argument and what you are asking of the judge to consider when rendering their decision. This is what I learned, for which I was so fortunate.
As an SRL, you command the room, take advantage of the attention you are getting. We as SRL, must attend prepared, knowing the steps required to keep judges accountable and listening. The very valid concerns SRL face are the same valid complaints many lawyers complain of. Judges will listen. We can affect change.
Well said. I used to make the mistake of believing the judge(s), at the start, when they say, “we have read the factum”. Almost always, they say something when you are done that proves they have not read the factum, only little snippets of it. Also, watch out for those lawyers who do not respond to your SRL factum but rather start up their story. CALL IT OUT. Point out they have NOT CHALLENGED your claim and that you are not the respondent, they are. The usual trick is they make you become the respondent. VERY IMPORTANTLY, have EVIDENCE to bring to the judge, not just a story and when lawyers file document, make sure it is what they call it and POINT IT OUT, if it is not. Know that despite our best efforts, judges who are so embarrassed when an SRL puts a lawyer to shame, many of those judges try to cover for the lawyer and expect them to award huge costs, or declare you vexatious just to shut you down. I think we should start doing a Go-Fund-Me when these courts award these unfounded costs against us and see how many of them become wary AND TO GET A JUDGE REVIEWED, is not to complain to the Judicial council but gather signatures and send to the AG’s office and demand the review. If you do it right, (provide evidence), the review is automatic. I think the number of signatures is like 3k to get attention. I once got the AG’s office to forward the bad conduct of an adjudicator at a tribunal, tot he minister. Then suddenly they were all gone and new ones appointed. We need to find a way to help one another. About time we have an SRL Association
I have long concluded that judges should fill out forms before they write any decisions or the forms themselves should be the decisions. For instance question 1 should be, list all reasons for this decision
Second part says, explain each reason above and provide excerpts from evidence/hearing to support each reason.
Next they should be required to review the decision and state/identify anything or any part that just makes no sense or is ridiculous to any reasonable person (doubt they’d be able to do this part 75% of the time), I am serious
Too often judges just jump all over the place in a rant or ramble and call that a decision. Half argument here and half argument there. I am usually insulted by this
Finally, I think SRLS should have a say in appointments to the Bench so that a requirement would be every litigant within the last 20 to 25 years must be notified of any prospective appointments to the Bench of those with whom they came in contact in any case during that time period and the SRLS should be allowed to make submission for/against those appointments. Then we see would see how fair the courtrooms become. Currently judges cow-tow to lawyers over SRLS for this very reason. Yes we can misunderstand events in the court and allowances should be made for that but we should not be dismissed just so. Good judges will take the criticism in stride, even if unfair and become aware of the perception/misperception of themselves