The current backlog in the Alberta Court of Queen's Bench is unfortunate, and the failure of the federal government to appoint the necessary Alberta judges, is most distressing.
This backlog is all the more unfortunate because of the number of unreasonable litigants who are draining the judges' time and industry, and occupying spaces in the queue which deserving litigants should be getting. Note that delay and backlogs repel normal litigants. But sadly, many unreasonable litigants (even plaintiffs) like interminable litigation, and fear only its conclusion.
I will leave to one side criminal prosecutions, and just talk about civil litigation (which occupies more than half of the time of the Court of Queen's Bench).
In order to update the Stevenson and Côté Handbook, I have to look at all the written civil judgments which the Court of Queen's Bench puts on its website. (Like everyone else, I do that via Canlii.) It is extraordinary to note how few pieces of commercial litigation are found there. Still fewer seem to be differences of opinion between two reasonable parties, both with arguable positions.
A surprising number of lengthy written decisions involve self-represented litigants who seem to take unfounded, irrational, incomprehensible, or just very unreasonable positions. There are a surprising number of litigants who wish to relitigate what the courts have already decided earlier. There is increasing evidence of “hedge lawyers”: ostensibly self-represented litigants file papers which appear to be drafted by someone else, who almost certainly cannot have proper legal training. Some such papers come from penitentiaries, and some come from advocates of “freemen on the land” and others who believe they are immune from paying taxes or even obeying any other laws.
Even where there is nothing so repetitive or bizarre as that, there seem to be many litigants who subdivide, stall, and spin out litigation. Some of them do so in the wake of a painful matrimonial separation. The courts hate to increase family litigants' expenses, or to deny them a hearing. The result is a large amount of chambers applications in the same divorce or Family Law Act lawsuit, and litigation which seems to go on continuously from the date of separation until the youngest child is 28 or so. And sometimes after that.
Even when the basic outlines of a non-family lawsuit sound reasonable and worth litigating, it is often evident that the parties or their counsel either hate each other, or have decided upon a long war of attrition. Every possible interlocutory step is disputed, and many simple procedural matters are taken through a Master, a judge, and on to the Court of Appeal.
It is common for commentators to stop there, and leave the cause of so much odd litigation a mystery. Or to blame vague social forces, or analogize to the harsher aspects of American politics.
But there may be another force contributing to unreasonable litigation. My first degree was in economics, and I do believe in the laws of supply and demand. I believe that if the price of something goes up, the number of people who will buy it and pay for it, goes down. And the cheaper that a commodity gets, the more people absolutely have to have it. The demand for what is free will climb forever.
Is litigation free or expensive? Many an after-dinner speaker has bewailed the expense of modern litigation, and then put the blame for that supposed problem onto lawyers. Such speakers may describe those who no longer litigate today in the courts. But that is a very incomplete assessment. It assumes that litigation consists of two reasonable people with some assets (private citizens or business corporations), using competent lawyers to take their dispute to trial. As I have hinted above, that is now the minority of court cases. Few Queen's Bench decisions seem to flow from a real trial.
Who cares if the odds of winning a lottery are small, when the tickets are free?
The expenses of litigation used to mirror many of the social costs of litigation (though never the salaries of the judges and court officials, nor the expenses of running a courthouse). In theory, a litigant pays somehow to have his or her case investigated, pays for his or her lawyer, pays court filing fees, pays for expert witnesses and court reporters, and then (if he or she loses or does not better an offer to settle) pays the other side party-party costs. But in practice today, the majority of the litigants (especially those starting litigation) do not pay any of those things.
How do modern litigants commandeer all this free court attention?
- expenses of investigation: they do not investigate, and simply allege what they suspect or imagine, or allege no actual facts at all, only generalities.
- court filing fees: they get waiver of these fees, maybe just by badgering court officials; and these fees are fairly small anyway.
- lawyers' bills: they represent themselves, or just get a bit of advice or drafting advice free or cheaply and anonymously.
- experts’ bills: they do not consult experts.
- court reporters' bills: they do not go to trial or even have questioning, so rarely use court reporters.
- party-party costs: there are many ways to evade these:
(a) Some litigants are (or claim to be) judgment proof. Rarely does anyone even ask that they put up security for costs. Some judges and masters are reluctant to order security. Have you ever known a difficult litigant to pay a costs award?
(b) Some litigants are selected or created because they are judgment-proof, e.g. the man of straw selected as the named plaintiff in a class action. Or a brand-new society or a defunct company in whose name the lawsuit is brought.
(c) Some judges can be talked into reducing or eliminating costs out of sympathy, or on vague policy grounds.
- many litigants start proceedings before a tribunal or commission which offers free services (as most do), e.g. a human rights commission, a commissioner of privacy or languages, or a commissioner of some other popular cause; or by complaining to a professional or regulatory tribunal.
- some litigants get some form of legal aid, even enhanced legal aid. Though the Legal Aid Society itself is harder to get coverage from, there are a number of bodies giving similar free legal services.
- some get funding or advanced costs from a government directly, or via a government-funded advocacy group, e.g. in aboriginal litigation.
- some litigants find a gullible lawyer to act on a contingency, or out of sympathy, or because he or she assumes that the client is solvent, rational and honest. Or the lawyer has not yet learned how persistent, vindictive and imaginative some troublesome litigants can be, nor how many can turn their benefactors into their next victims.
In my experience, where both sides to a suit are spending someone else's money, the litigation will go on almost forever, certainly over a decade. It is a free bar with no closing hour. A lot of “funded” litigation is against the government. The taxpayers are paying both sides.
So the courts tend to drive away worthwhile litigants because they are very slow (backlogged) and often expensive. At the same time, the entire litigation system uses many ways to attract, welcome and encourage undesirable or whimsical litigants.
– Hon. J.E. Côté
The Commentaries are intended to call the attention of lawyers to promising or threatening developments in the law, in civil procedure, in developing their skills, or simply to describe something curious, funny or intriguing.
Justice Côté recently retired from the Court of Appeal of Alberta and currently acts as an arbitrator, mediator, or referee under Rules 6.44 and 6.45 of the Alberta Rules of Court.
He may be contacted through Juriliber at email: info@juriliber.com or phone 780-424-5345.
