September 17th, 2018
We’re still waiting for the Federal Court of Appeals Ruling. Sorry, no Ruling yet.
Instead, let’s talk about the need for judicial reform. Nicely, now, not throwing stones.
It’s just that the last six years have been a real education on the inadequacies of the structure within which a lot of good people are working. Some of that structure is rather dated and it shows, and some structure has not kept pace with developments in technology, and there are some further snags in the legal process resulting from the actions of those now burdened with them (lawyers, for instance), however well intentioned those reforms-cum-snags may have been.
There is a strong and growing need for reform of the judicial system, and a fulsome white paper is in prospect for some clever soul out there.
First, an easy one. To commence Ontario Superior Court proceedings, a clerk stands from their desk and yells “O-ye!, O-ye!”, followed by some words of mostly gibberish. And they do this at adjournment as well. It’s a bit like military drill instructors, or at least the stereotype of them. I’ve witnessed this and obeyed contextually, for I had no idea what the instructions were.
Clerk’s calls are an ancient custom, that much is clear. Some customs are retained for gravitas, to honour and respect those in authority. Judges, for instance. What’s less clear is why this particular custom is retained.
Our Court rooms are mostly ancient too; of high ceilings, oaken walls, brass fittings and the like. In these places natural silence can feel oppressive since any whimper within is echoed throughout the room. This is the context in which a clerk breaks the silence with actual yelling -and they do these calls at terrific volume, and their voices are not all, shall we say, melodious in such activity. More of a shrieking, really, in otherwise dead silence.
Ponder a new litigant, an ordinary person who somehow got caught up in something and finds themselves alone and self-representing in this enormous room, filled with people highly paid to be there, who are practiced in such places and therefore comfortable there. Imagine how intimidating that is for such a first timer. And yet, it’s right there, in that intimidating place, where ordinary people like you and me have to rise and perform on our own before a judging crowd, in both sense of that term, each comparing what they know well of the performances of the masters of legal arts with the first-time jitters of the citizen.
The Courts are intended to serve the people, to protect them. Courts should be places of confidence for ordinary people.
We could drop the Clerk’s calls without impairing anything.
I once had to fly to Toronto to sign a piece of paper. Seriously. The paper wasn’t an affidavit, though even that wouldn’t have necessitated travel. No, it was a filing form in the Provincial Court of Ontario.
Certain legal forms must be signed by litigants directly. It’s not sufficient to have a lawyer sign the form, apparently. It is likewise verboten to sign the form anywhere other than at the Court registry office. The form cannot be signed elsewhere and then witnessed and certified by a lawyer or a notary public. No, the form must be signed by litigants themselves and only at the registry desk, on the second floor, in the smallish foyer, at the kiosk thing with the off-white tiles festooning the place. I was there.
This signatures regulation dates from a time when people lived closer at hand and when technology didn’t permit other options. Today, any document can be signed, witnessed and certified at a distance, or can be signed by one’s legal representative, and all at comparative ease.
A simple signing of one piece of paper should not require booking an entire day for the purpose, eight hours of air travel, and over a thousand dollars to cover the costs of doing so. Why not let people sign filing documents like they sign any other documents? This change would be, actually, really easy to accomplish in legislation.
The Court system has a form for everything. That’s a bit of a problem, as there are quite a few things covered by unique forms. Quite a few forms, then.
Of course, having so many unique forms means that those persons dealing in legal forms -registry clerks, for instance- need to be familiar with a whole lot of unique paperwork. But not all forms are common. Some are used very, very infrequently. Clerks are therefore not familiar with all forms, so they sometimes make a hash of processing them.
About two years into this litigation, I had to file a one page form with the Federal Court Registry and, alas, it wasn’t the most common of Court forms.
I found the correct form, filled it out and drove to Federal Court, paid $10 to park beside the Courthouse, went through the full security screening, and took my place in the long line at the Registry window. Upon arrival at the window, I submitted my form and was advised that it was the wrong form. The Clerk however, was wrong about the right form. My wrong form was the right form, this form.
But Clerks of the Court deal with a lot of abusive people and they tend to treat everyone at the window as an abuser. I politely pointed out the basis for my choice of form, being in this case a stipulation in Martin’s Law (a reference book used by the legal community). The Clerk refused to look at my printout of Martin’s Law, as it was much easier to dispatch me away without bothering the details.
Dispatched therefrom, I drove home to try another form. I filled out this new form with the same information and returned to Court, paying $10 to park, being patted through security, and took my place in the long line at the window.
I was then told that my new form was correct, save for the line at the top of the form; “In the Name of Her Majesty the Queen.” This line needed to go, apparently. I drove home.
A few days later I drove back to Court, paid another $10 to park, was thoroughly X-rayed, and stood in line. I had scanned the “correct” form and digitally removed the offending line from the heading.
Upon arrival at the window, a different Clerk advised that the form was indeed correct but they couldn’t accept it because it was missing detail. Specifically, the heading of my form should read “In the Name of Her Majesty the Queen.” Arguing does nothing at the Court window, of course. Clerks are archetypal bureaucrats, impervious to explanation or reason. I drove home.
A few days later I drove back to Court, lost another $10 on parking, emptied my pockets into little bins for the sake of security, and embraced the pleasures of queuing. At the window, a new Clerk advised that the form indeed featured all the indispensable information but, alas, it was the wrong form. Now the right form was, gratingly, the one I’d originally tried to file. I drove home.
Another week went by and, when I again found the time, I drove this time to the Federal Court Administration Office, the bureaucratic hub of the bureaucratic system. The attendant at this office was polite, engaging and actually quite knowledgable. Rare, I know. Between the two of us, we opted to send my original form to a Prothonotary of the Federal Court in Ottawa and ask for an Opinion on admissibility. Shortly, we received the Opinion and yes, my form was correct and admissible. Well, onward to the lineup then.
Later that week I got to Federal Court, paid $10 for parking, was asked if I was a terrorist, refrained from telling them I was thinking about it, and took my place in line. This time I got the worst Clerk in Calgary. My shiny new Court Opinion was ignored in favour of the Clerk’s uncluttered views on such things. No supervisor was available, when I asked, even though I could see the supervisor wandering about, coffee in hand, amid the cube farm behind the Clerk. The problem this time? Well, my form was typed on 8.5”x11” paper whereas it should be on legal size paper. Seriously, she said this. I drove home.
Later that day I returned with my form on longer paper. Resubmitting cost me $10 in parking, some dignity at security, and quite a bit of time in line. And it availed me nothing. Now my form was on the right paper but I had to handwrite the contents onto exactly the same form given to me by the Clerk. I pointed out that the form itself was one page in length but the backing papers were about thirty pages in length, yet they all somehow had to fit onto this one page form she had given me. She said I could also use the back of the form. I delicately suggested that might not be quite enough space. She gave me another copy of the same form for spillover. I asked her if she expected me to fill it out, all thirty pages of it, in provided pencil, by hand, while standing at the window, with a line of angry people waiting for me to finish. She said yes. I drove home.
Another week went by and, when I found some more time, I drove back to Court, paid my $10 parking, endured the full physical and, this time, went to the Alberta Queen’s Bench Registry. My reasoning was that I could try to file at AQB and they might be able to send the process up to Federal Court without the troubles at the window. It seemed to work, at first anyway. The AQB Clerk was annoyed and felt no reservation in expressing it, but agreed that the form was fine as-is and kindly walked with me to the Federal window. She greeted the Federal Court Clerk and advised of the situation, asking that my form be accepted. The Federal Clerk agreed, the AQB Clerk left and then the wheels fell off the bus. The Federal Clerk now advised that this particular form could only be filed in person, in Ontario. Oh, and why was my form printed on legal sized paper? It should be letter sized paper. I drove home.
You get the idea. I’ll halt the balance of the story, for its really just more of the same mindless bureaucracy. In all, I had to make 12 trips to various offices of the Court, I spent over $100 on parking -just parking!- and seemingly countless hours of time, just to file a one-page form. And I failed. That’s right, at the end of all that I did not get my form filed.
The process is like this because lawyers have used trivial, highly technical details to derail cases. You know, this form has the wrong font, so my client should be freed -that sort of thing. But if the Courts are to really serve the people they need to be approachable by the people.
It shouldn’t matter what form is used, or even if a filing is made by letter, if that’s what a citizen wants to do. I don’t care if folks fill out their form in crayon, it shouldn’t matter. Shaking out the filing regulations of lawyers’ creeping pedanticisms would be a good start. Authorizing registry centres (like vehicle licensing registries) to accept Court filings would likewise improve efficiency and customer service. Actually, just having filing centre options, the reality of competition for filing business, would tend to improve customer service.
I can tell you that the dread is palpable on the escalator ride to the Federal Court window. It’s not the rudeness of the clerks or the fact that even on the first visit I knew more than they did about their form, yet still had to endure olympic scale condescension as they sought to correct my already correct position. Rather, the dread comes from knowing that I’ve got no choice. If this particular window won’t accept my filing, no matter how correct it may be or how many “corrections” they demand and I submit, and no matter how bluntly the law requires them to receipt my document -if after jumping through all the hoops they still won’t take my filing, I have no recourse to getting past the window. That’s the dread; being wronged without recourse.
After all, all of this is to defend myself and my family business from the same Federal Government that’s staffing the window that won’t let me file.
Legal processes exist to serve the people in the cause of justice. When people start serving the Court in the cause of bureaucracy, that’s a sign that there’s need to reform the civil service.
There you go. Three issues; three quick fixes. I should run for office.