Has our justice system priced itself beyond the reach of average citizens? By Shirley Dolan

Published December 1, 2014

This was the title of the November 23 episode of Cross Country Checkup with host Rex Murphy. Landowners have long complained about the state of justice in Ontario and, indeed, across the country. We are familiar with the process whereby a person is charged with an offence and asked to pay an exorbitant fine, or defend themselves in court. Of the few brave souls who decide to go to court, it is a long and arduous journey, and the system is designed to make the appellant plead guilty perhaps to a lesser fine, or face the consequence of months, possibly years, of legal wrangling, during which pocket books and health suffer. From the response to the Cross Country Checkup program, it would seem that there are many others out there who agree that are justice system needs a lot of improvement. You can listen to the program at http://www.cbc.ca/radio/checkup.

Prompted by Rex Murphy’s show, I decided to have a look at our justice system through the eyes of the internet. Here is some interesting information I came across.

  • According to the World Justice Project Rule of Law Index, Canada’s civil justice system ranked 8th out of 24 Western European and North American counties. One of the main factors that brought down our score was accessibility and affordability of the justice system. See DAS Canada White Paper. http://www.das.ca/DAS/media/Images/Banners/DAS_WhitePaper2014_web_vf_1.pdf
  • In Fall 2013, the Canadian Bar Association Access to Justice Committee released a report on access to justice in Canada which contained strategies to improve access to the justice system by average citizens. Unfortunately, most of the targets are “by 2020” or beyond. But at least there is an acknowledgement that the system needs to be fixed. http://www.cba.org/cba/equaljustice/secure_pdf/Equal-Justice-Report-eng.pdf
  • “There is no Justice without access to justice.” So says Chief Justice Beverley McLaughlin. She shares this message frequently when asked to speak at various events such as the Access to Civil Justice for Middle Class Canadians Colloquim, hosted by the Facilty of Law in February 2011. Her speech can be viewed at https://hosting2.desire2learncapture.com/MUNK/1/Watch/219.aspx
  • The Cross Country Checkup episode introduced me to a new acronym: SRLs or Self-Represented Litigants. One of the guests on the programs was Julie Mcfarlane, professor of law at the University of Windsor. She is the author of The National Self-­Represented Litigants Project: Identifying and Meeting the Needs of Self-­Represented Litigants, May 2013. This project looked at the characteristics of SRLs in British Columbia, Alberta, and Ontario. Under motivations for self-representation, the report says “By far, the most consistently cited reason for self-representation was the inability to afford to retain, or continue to retain, legal counsel”. While most of the cases studied were in family court, the report is illustrative of the issues experienced by many landowners in lower courts and tribunals. You can read the report at http://www.lsuc.on.ca/uploadedFiles/For_the_Public/About_the_Law_Society/Convocation_Decisions/2014/Self-represented_project.pdf
  • A Globe and Mail article http://www.theglobeandmail.com/news/national/ontario-courts-only-open-to-the-rich-judge-warns/article12942343/ tells a story of an Ontario Superior court judge who used a ruling to air his opinion on the Province’s courts are increasingly only open to the rich. Justice D.M. Brown is quoted as saying that “such a state of affairs reflects an unacceptable failure on the part of our civil justice system”.

The above brief internet search demonstrates that there is considerable awareness in the legal system that there is a serious problem with accessibility to the courts by average citizens. When and how do we fix it?

11 Responses to “Has our justice system priced itself beyond the reach of average citizens? By Shirley Dolan”

  1. Grace Joubarne December 18, 2014

    To Jim Malloy and Thomas Jones: believe no one. Believe your own eyes. Obtain your Crown Patent(s) and complete title search, including supporting documents. If their names are not on there anywhere, tell them to take a hike.

    In my case I was told by a municipality and several lawyers that I had to roll over and let a Planner tell me that my property was what he decided it was…a single family dwelling that might be permitted to have two living units (duplex). This is despite the property having 2 municipal addresses and being taxed forever as a semi-detached! That it had 4 units (2 in each side) since at least 1977 was considered irrelevant. Seems as though evidence and fact is trumped by opinion in many of these municipalities and the lawyers are so be-dazzled by municipal clientele that they have abandoned their moral and ethical compasses.

    When I applied for my Crown Patent, lone and behold there were two for my property, my property was a semi-detached since 1816, there were two separate owners and today I can still sell one of the sides.

    I am told that a Planner has a legal obligation to disclose all this information to the public (me) and a legal obligation not to withhold information to advance their own agenda.

  2. Liz Marshall December 12, 2014

    Jason…PSW means Provincially Significant Wetlands, and NPCA is the Niagara Pen. Conservation Authority. Gail, should obtain a copy of the David White case, as it would seem she is merely protecting her property and no one is allowed to flood someone or put water on someone’s else’s property, without their consent. That is covered under common law…This is why government interference is the ruin of everyone. I am not a lawyer and this is not legal advice, and it was Terry Green’s law firm which was the final legal counsel for David White.

  3. Jason December 8, 2014

    Gail, what does PSW and NPCA stand for?

  4. Bob Marcellus December 7, 2014

    Which court will you be in Gail?

  5. Gail December 6, 2014

    Hey Shirley, I have the opposite problem. I am in court with the NPCA Jan. 27, 28,29, 2015. It is 3 years and over $20,000. I own 30 acres. 26 is PSW . I have three neighboring farmers that are actively developing drains by trespassing to into my PSW to steal water from my big pond. The other is maintaining a trench made to drain his farm fields into my PSW which has and still is affecting my septic bed. The other farmer who lives across the street has teamed up with the township and made an illegal drain from the roadside ditch into my property. I have a driveway culvert that is not open to the west. The township will not open up the ditch to the west to let the water flow down the ditch to 20 mile creek. After 6 months of flooding i dropped about 6-8 meters of dirt to stop the polluting of my PSW. The farmer across called the Township and NPCA. My husband and I were both given 3 violations each. During this time we contacted the NPCA, MNR, OC, CA, Township, Board of Directors, MP. No help from anyone. I have had the NPCA here 2x they witnessed these violations but will not act stating it’s a civil matter. I have been told by the NPCA that I CAN NOT fix my septic bed while we are in court and they will decide after what I can do. The township septic inspector told us if he has to come here and see the damages he could make us move our septic bed. The Inspector is related to two of the farmers involved.. We have been forbidden by the NPCA lawyer that we cannot have a vegetable garden in my yard. We have been lied to, harassed, manipulated, threatened, labeled complainers. There is much more. All we tried to was to protect our property.

  6. Bob Marcellus December 3, 2014

    Second last line should read party #1 agrees

    But you kmew that already

  7. Bob Marcellus December 2, 2014

    Good Article Shirley. Thanks.
    I will represent myself at Trial on Jan 28th, 2015.
    I have spent roughly 1.5 months studying the OLA position, previous cases on Canlii and any other information I can get my hands on, I find no other case that has been decided in favor of the individual fighting the Municipalities right to passing By-Laws restricting lawful use of property, My Crown Patent issued in 1797 gave me the use of the and long before the province asked the municipalities to create planning by-laws.
    My latest analogy is say party number 1 strikes a deal to sell a piece of property to party number 2. They conclude the deal and both parties are satisfied. Some time passes, and party #1 is approached by Party # 3 who asks party # 1 to agree to a document that gives party # 3 the right to control the use of Party # 2’s land. Party # 2 agrees and the document becomes the BNA Act.

    Anyone else out there going to court?

  8. Thomas K. Jones December 1, 2014

    The Ministry of Natural Resources has been responsible for the mapping that is / was used to evaluate property. They have the hard copies that they used for the purposes of evaluation properties, however we have not been able to see them & the dates which they were produced? These same maps were shared with the Conservation Authorities who consistently use them to support their position when a development application is made. Ofter using these maps without putting “boots on the ground” results in restrictions being placed on private property that is based on inaccurate observations. Now the NGO’s are using satellite imaging. with the same negative results.

  9. gord day December 1, 2014

    I have always maintained that if the law is too conveluded and complex, for the common man, then the law is not for the common man.. merely for the perpetuity of the law itself.

    courts use latin phrases and french. altho french is an official language in canada, I do not speak french, nor do i want latin or french, terminality used in any trial that I am a part of.

    even if a judge or crown states “it only means….this” using a language that I am not fluent in, is a miscarraige of justice, at best,

    at worst, its a direct attempt to ensnare.

  10. Jim Malloy December 1, 2014

    Had the same type of experience asked a lawyer a simple question which he did not know the answer to. What he did instead was drag it on with calls and meetings until his bill was $2000 at which time he asked for payment and wanted to continue. I fired him and paid him and still do not have my question answered.

    My question is I have a letter from M.N.R. in Peterborough that states my property is not wetlands of provincial status.

    I have an e-mail to a previous owner of my property from Conservation authority figure who has been fired that states my property is wetlands of provincial status with no supporting documents.

    Who do I believe?

  11. Grace Joubarne December 1, 2014

    Good article Shirley. Not only is our justice system unaffordable but even if you can afford a lawyer, they are generally quite incompetent and most are not trained in, or refuse to use the superior laws to assist landowners. In fact, nine out of 10 times they will insist that municipalities have all the rights in the world to make whatever by-laws and regulations they want to affect private property. With lawyers like that, one may as well be a pro se (self-represented) litigant.


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