Noel Semple

2Anytime. Yeah, it's a pleasure.

4Yeah, so, so personal plight is a category that's used by professional sociologists talking about the legal profession and it came from a really interesting study that was done in the '60s in Chicago where they analyzed the bar and try to, you know, come up with a conceptual framework for understanding who lawyers are and what they do. And they came up with this, this four-part categorization, which is based on the type of work that different lawyers do, and then who they do it for. So personal plight is the quadrant where the lawyers are working on behalf of individuals as opposed to corporations, and the work they're doing arises from disputes. So family law, personal injury, plaintiff-side work, criminal defense, that's all personal plight.

7So far there has not been but the Attorney General has said certain things will change before the end of the year,

9I think there is value in reforming the rules. I think any human artifact becomes obsolete over time and needs to be tweaked and updated. And that being said, I think that the quantum leap forward for access to civil justice in Ontario will not come through rules reform.

11I think we need new institutions of civil justice. So I think that between the tradition of tribunalization, where, you know, certain aspects of where civil disputes are hived off from the courts and entrusted to a tribunal, combined with the tradition of arbitration, where parties' private resources are deployed, combined with some of the breakthroughs we're seeing in technology and artificial intelligence. I think those influences or ingredients, if combined in the right way, can create new civil justice institutions targeted on particular categories of civil complaint that will outperform what the courts can do, whatever the rules might be.

13I think the courts have been handed an impossible mandate in the sense that they have been required to prioritize criminal matters. So obviously in the wake of the Jordan decision, the focus quite understandably has been on trying to get matters to trial so we, you know, avoid either unconstitutional delay on the one hand, or setting people free who have been charged with very serious offenses on the other. And then after the criminal docket, generally family law matters involving children are prioritized, again for very understandable reasons, because we're talking about, you know, very vulnerable people here. But the consequence of that is that civil justice is an afterthought. It's, it's an afterthought after an afterthought for the Superior Court of Justice.

14And so I don't think with the resources they have and with the other things they're being asked to do, they can really produce great access to justice for civil litigants.

16I think that's fair, but I don't think it has to be as bad as it is. I think, you know, with leadership and vision and, you know, willingness to really make use of what we know about civil disputes, we can do a lot better. And in fact, we can do a lot better without a lot of new resources.

21So I think my short answer would be no, technology cannot solve all the problems. And one of your past guests was Shannon Salter from the Civil Resolution Tribunal in BC, and I thought she put this very well, that, you know, when people hear about the Civil Resolution Tribunal, they say, "Oh, that's an online court," and online is kind of the thing that's in people's minds most prominently about it. But she made the point that that's not necessarily the most important thing about it, that the Civil Resolution The tribunal succeeded because it was based on a very human understanding of what litigants are going through, what they need, and a very human understanding of how processes of negotiation and mediation and adjudication can be deployed intelligently to create affordable, prompt, just resolutions.

22So technology is certainly an ingredient, but I mean, I think our legal system has a lot of strong points. You know, if you look at the World Justice Project, for example, compares international legal systems, Canada rates very highly on criteria such as, you know, the quality of our judiciary. I think the quality of our substantive law is quite good by international standards. And I think the judgments that come out of our courts, when finally they do come out, are quite good. And we wouldn't want to throw the baby out with the bathwater. So I think technology is an ingredient, but I think it should be deployed by people who also understand some of those ancient principles, like the rule of law and like the value of the adversary system and even service.

23You mentioned service, and obviously service can be updated, but the core good idea behind the rules of service is that if someone's going to be subjected to litigation and should be potentially put in a position where an order can be made against them and their assets can be garnished and all that state power can be applied to them, it's really, really important that they know what's going on. They know they've been sued, right? So that's the intuition behind the original requirement for personal service and so on. And can that be updated? Absolutely. but I'm not a believer in starting from scratch. I'm a believer in sort of, you know, intelligent, well-designed, evidence-based interventions that take the best of what we've been doing for the past however many centuries and combine them with new ideas and new technologies.

25Yeah, so that's a really tricky one that's bedeviled social scientists trying to understand the legal system for a long time. You know, the most basic measure, I guess, would be the percentage of them that are overturned on appeal. That's been used by certain studies. What's the appeal overturn rate? That's not completely dispositive. I mean, I think it can also be kind of measured qualitatively. Like, I've been talking to a lot of lawyers and doing interviews, and, you know, when I interview them, they kind of have carte blanche to talk about the system and what's working and what's not. And I have yet to hear any lawyer say that too many judgments are wrong, or there's too many legal errors.

26So this is why I say that, you know, just by the people who know the judgments best, they don't seem to have that problem. The problem they have is it just takes way too long and it costs far too much money to get there. But the, the quality of the output, I think people seem to think is pretty high.

28Yeah, that's true.

30Yeah, that would be a factor. And I guess, you know, the more they overturn, the stronger the incentive is for people to appeal more, which in turn drives up the workload of the appeal court. But I mean, we're talking about people with, you know, lifelong tenure here. Right. And they're quite well compensated. So, I mean, anything could be subject to improvement. But I think, you know, Canada has very robust protection for judicial independence. And we have a lot of terrific people who want to be judges. So I mean, I guess I think of it, you know, we've got the goal of quality, and then we've got the goal of accessibility, which is about, you know, affordability and timelines and so on.

31And it's a balancing act between those two. And I think at the moment, the real problem is on the accessibility, affordability, timeliness side. And what we need to do is find a way to preserve the current quality while making the system work a bit faster and be accessible to more people.

33Oh my goodness, my favorite rule of civil procedure. Well, I've just recently been writing about the purposive rule, the overall objective rule, which is 1.04, I think. I'm terrible with numbers. I can usually remember what the rules say.

35If we were number people, then we probably wouldn't be in this profession in the first place. But anyway, I'm an idealist. I love the idea that there are ideals to which we should be aspiring. And I think, you know, you've used this phrase, the gold standard for a justice system. And so I'm really interested in the overall objective purposive provision, which says that we should be seeking the most just, inexpensive— what is it? Just, inexpensive, and speedy resolution of matters on their merits. That's not the exact language, but that's the sort of overall formula, which is manifested in the federal court rules and other provinces in Ontario. So I'm really interested in that and what that means and what the philosophic grounding for that commitment is.

36And in the idea that we could have this overall and purposive commitment that would actually inspire and enlighten everything we do in the system.

38least expensive.

41Yeah, yeah, that's right. I think they do all have meanings. Maybe just to start at the beginning, liberally construed, I think that's a problem. I think that actually needs to go. I think that's the source of many of our problems, because liberally construed basically means that when litigants or their lawyers don't comply with the rules or you know, treat them as mere suggestions, that's probably going to be excused. And if anything, you know, a party will have to make an extra cost payment or grant a delay or something.

43No, no, I don't think so. I think, you know, in many areas of our law, judicial independence is respected without the requirement to liberally construe rules. So, you know, for example, in criminal procedure, if, you know, someone's Charter rights are infringed, then the evidence is probably going to be excluded and they're probably going to be exonerated, even if they're probably factually guilty. So the Charter's protections for accused people are not liberally construed. I think liberal construction is a civil procedure-specific phenomenon, and I think it's an artifact of an era of abundant judicial resources. So if you have a very small volume of civil disputes and you have a well-resourced bench, then it's logical to say, we are focused entirely on getting to substantive justice and on doing justice on the merits.

44And if people make mistakes or if they take longer than they should, then they just have to make it up to each other through cost awards. And, you know, we're going to excuse those things. But in the current era of scarcity of judicial resources, that liberal construction is— it's not sustainable because it leads to cases taking just vastly more time and money than they need to, both the time and money of the litigants, but also the judicial resources. So I think that part of the purposive rule is obsolete.

48Hmm. I wouldn't, I wouldn't consider it in terms of a hierarchy. I mean, I think of like, these are all deeply seated ideas in the Canadian constitutional and political makeup, right? So judicial independence is very valuable. It's also very valuable that this is a democracy and that we uphold the rule of law. And so in a democracy that aspires to the rule of law, we have to be able to have elected legislators who can change the law, as you said, by amending statutes. So the question is, how do we reconcile our commitment to judicial independence with our commitment to democracy and the rule of law? And I don't think judicial independence is only important in the Charter context.

49There was an interesting debate recently involving the Civil Resolution Tribunal in BC, which, as you know, has recently been given jurisdiction over a large chunk of the motor vehicle accident cases. And yet the Civil Resolution Tribunal adjudicators are appointed by the state. They're appointed by the province of British Columbia, and they lack judicial independence. They can The province can basically shuffle them in and out without too much process. And yet the province of British Columbia has a strong interest in the outcome of motor vehicle accident disputes because the province owns the monopoly auto insurance corporation, the Insurance Corporation of British Columbia. And the more the adjudicators grant claims and give people benefits, The worse ICBC finances are, the more likely it is they'll have to raise premia, which people will blame on the government.

50And that's a recurring issue in administrative law, right? Are these adjudicators, do they have the requisite level of independence from the state? And we examine the conditions of appointment and the security of tenure to analyze that. All of which is a roundabout way to say that I think the commitment to independence and the value of it does not end when we leave Charterland. But I also think that idea of judicial independence has metastasized. It's gone way further than it should. Like, to me, judicial independence is about if I'm a litigant and you're my judge, are you going to evaluate my case and make decisions based exclusively on the facts and the law? Or are you going to be swayed by external considerations or your financial incentives or who appointed you or something like that.

51So it's actually impartiality. Like, the Supreme Court has distinguished between independence and impartiality. And I think impartiality is what's really valuable on the civil side. But if we say to judges, you know, your independence means you can completely control your own procedure, then we end up with, you know, a different practice direction in every court in the province, and, you know, it takes lawyers way too much time than it should, not to mention self-represented litigants who suffer from this terribly, just to decipher what the civil procedure is going to be before this particular judge, because, you know, we've allowed the idea of judicial independence to become every judge gets to invent their own procedure for everything.

52And I think the antidote to that is just a more forceful legislative approach. I think we need you know, civil justice institutions to be created by the legislatures, and I think they need— the procedure for them needs to be designed in an evidence-based way from the ground up. And I think if we do that, the judges will will respect that, and we'll, we'll get back to a more well-designed, predictable, efficient procedure.

54Oh, that's really interesting. So I think certainly if we're trying to historically place the apex of the Canadian judiciary's power, it would have to be at some point after 1982, because the Charter obviously gave judges a lot more power than they had before. And, you know, that's not a criticism of judges. Like, that was a decision of Canada's Parliament to create the Charter and to, you know, give judges this mandate to oversee democratic process and strike down legislation and the rest of it. So I think the apex point would have to be after 1982, whether it's now as opposed to earlier. I mean, I think that, you know, maybe in the '90s might be the apex because I do think that the scarcity of judicial time and sort of the overload of cases and, you know, the failure of judicial appointments to keep pace with the demand for judicial resources has— I think a lot of judges feel like they're just trying to keep their heads above water with the constant stream.

55And they're very conscientious people generally, and they really want to do justice for all of the cases that come to their courts. But there's just so many of them that I think that that sense, you know, if you're in a position of overwhelm, you don't feel empowered. And in fact, you may not be. So I think as a matter of history, the apex would have been a couple of decades ago, maybe.

61Hmm. I think it might be an overstatement to say that, the judiciary in, in the West is not subject to external accountability. In the United States, for example, there's judicial elections. At the lower levels, not at the higher appellate levels. In Canada, we have the Canadian Judicial Council, of course, which hears complaints about judges. I mean, I don't think anyone would describe the CJC as a—

63Yeah, I mean, that's a whole other debate. But yeah, I don't think anyone would say the CJC is over-aggressive in enforcing things. But, you know, that quibble aside, I think it is accurate to say that Among the three major institutions of government, which, as you said, are legislative, executive, and judicial, in the West today, the judiciary is less subject to external accountability than either of the other two. I don't— I think that power is not— I wouldn't say that power is being abused in Canada, and I do think that it's had some very positive benefits. So The one that I've got a chapter about in my book is the legalization of same-sex marriage in Canada, which was a huge breakthrough, right?

64In part because, you know, it let people marry the spouse of their choice, but more importantly, because, you know, the stigma that was attached to sexuality has been greatly reduced. So there's a whole lot of people who are suffering a lot less than they did in the '90s because that reform happened, and that reform only happened because of the judiciary. So I do think the judiciary can be involved in a constructive dialogue with elected branches of government and can create policy breakthroughs that legislatures and executives cannot alone. And if you ask me, like, what are the top 10 problems with the civil justice system today, I would not say I wouldn't put lack of judicial restraint or judicial activism on that list.

65I think they're generally doing the best they can. And when I read their judgments, when I read Court of Appeal judgments, I think I don't see typically a desire to remake society in their image, with certain exceptions. So I wouldn't say that's the nub of the problem.

68Yeah, so I mean, trials are fascinating because they are so rare, right? Every civil litigator I've talked to say, say that, you know, upwards of 96% of the cases settle, and a big chunk settle without any form of substantive adjudication whatsoever. And yet the trial is conceptually central, right, in the sense that so much of what's done in pre-trial is done in anticipation of trial, or done from the frame of mind of, you know, what difference will this make if we do have a trial? If I ask this question, if my who witnessed an examination for discovery says this or that, how will that play at trial? And then the sort of mutual expectations of how a trial might play out on the part of counsel very much inform settlement and inform the approach to pre-trial advocacy and procedure and so on.

69So I think the trial will remain a centerpiece. I think trials don't have to be as resource and time content, intensive as they are. I think, you know, the unlimited trial days, right? Just, you know, how many days, how many witnesses do you want to call, and however many you want to call is how many you get to call, is not necessary really anymore. I think, you know, necessity and constraints are the mother of invention, and if you tell a great advocate that they need to present their case in 5 days instead of 15, you know, 95% of the best evidence will come out in 5 days instead of 15. I think that's a healthy human response to constraints.

70I think that civil jury trials are obsolete. Many jurisdictions have abolished them. I've never seen any convincing evidence that civil jury trials produce better or more accurate outcomes than judge-alone trials do. And yet civil jury trials consume a lot of resources, not just litigant resources and judge resources, Man, if you talk to someone who's been subjected to jury duty, that is like a major disruption in someone's life, and it's not well paid, and a few people love it, most people don't. I think that we need to be very attentive to the costs of procedure, and when I say costs, I mean the financial cost, the temporal cost, the psychological costs of what we're putting people through, and we need to audit the whole system and audit everything we do to see whether the payoff in terms of justice and accuracy of result and so on justifies the costs that come with it.

71And I don't think the institution of the civil jury would survive that type of analysis.

80No, I agree completely. You know, an ounce of prevention is worth a pound of cure, they say. Or, you know, it's better to build a fence at the top of the cliff to stop people falling off than to invest in ambulances to, you know, pick up the people at the bottom of the cliff once they fell off. And lawyers definitely do have a role in that. So I come from a family of lawyers, and my father did solicitor work for small corporations, and he drafted a lot of shareholder agreements. And, you know, that's something he loved doing. And, you know, the test, a major test of any contract drafted by a lawyer is how likely is this to lead to litigation?

81Right? And so obviously, that's super important. On the other side of it, my wife is an estate litigator. So she sees a lot of lousy wills that keep estate litigators in business. And just as a side note, you know, the Law Society is now really permitting a lot of automated will drafting in their Access to Innovation sandbox. And No one, as far as I can tell, is scrutinizing those wills for what's going in them, and the Law Society is basically saying, well, everything's fine because no one's complaining, right? But of course, no one complains. You get your, you know, $50 will and you put it in your—

83Exactly, yeah. So lawyers absolutely have a role in preventing disputes, and that's one of the most important things that lawyers can do. I say that to my legal ethics students. Because law students are exposed to a steady diet of litigation, right? We read cases, we read appellate cases, maybe we read a few trial court cases, but the whole side of the profession that's about drafting and negotiating is largely about avoiding the risk of litigation. But the work of prevention often, as you say, is not the work of lawyers. So we're talking about motor vehicle injuries, you know, Investing in car safety, and I've just been writing about the seatbelt, the mandatory seatbelt law, which has saved like 50,000 lives in North America.

84The fact that we have laws requiring seatbelts, and, you know, it's prevented a lot of need for lawyers and litigation. You know, that's— it's not lawyers who will create mandatory seatbelt laws, but I think one of the most important things government can do is proactively identify risks and and mitigate them, including risks that, you know, we human beings subject ourselves to just from carelessness, right? So that's, I think, a really important mandate of government.

86Wow. I guess that's probably right. Yeah.

88Oh my goodness, okay. So I think they're as smart and ambitious as they've ever been. I think the number one difference is that the attitude towards mental health has changed. And I think the current generation, there was a whole range of things that you simply did not talk about, you know, as a law student in the mid-2000s. And I think this also goes for associates and junior lawyers. Where people maybe bottled things more up, or they just didn't want to show weakness or didn't want to show human needs to others, especially to others in positions of authority. And that has definitely changed, right? And I think that's a good thing on balance, that people are more willing to talk about what they need and what they're going through.

89And I think that makes them more effective as advocates and happier as human beings in the long run.

91Un peu.

94It's been a real pleasure. Thanks, Pulat.