ACCESS TO JUSTICE – CHIEF JUDGE HUGH C. STANSFIELD (APRIL 2008 – VOL. 20, NO. 2)
Unfair to dinosaurs!

Chief Judge Hugh Stansfield of the Provincial Court of B.C. tells us, “Like the dinosaur, we must adapt or perish.” This simile perpetuates a popular stereotype whereby it is said that the dinosaur perished for the specific reason of the failure to adapt to change. Hence the popular epithet “You dinosaur!” – an out-of-date fuddy-duddy who is not changing.

Yet the need for change is greatly, greatly over-rated. Dinosaurs survived much, much longer that we homo sapiens have been on earth. Dinosaurs did not need to change as long as their environment remained stable – as it did for eons. Dinosaurs were very, very well-adapted.

What caused dinosaurs to “perish” was a catastrophic event that no dinosaur could possible adapt to: chance collision of the earth with an asteroid some 65 million years ago. It wiped out roughly half the marine invertebrates along with the dinosaurs.

Yet no one lectures us, “Like the marine invertebrates, we must adapt or perish.” That would be unfair to marine invertebrates, as unfair as it is to dinosaurs. Who could ever “adapt” to asteroid collision? Creatures that survived catastrophic collision did so only by good fortune. “Oh fortune!”

As for survival in general, the last (grim) word goes to John Maynard Keynes: “In the long run, we’ll all be dead.” Adapting only postpones, and does not prevent, inevitable perishing. Law, too, shall pass away. – Greg Lanning, Barrister and Solicitor

PROFESSIONAL DISCOURTESY – TONY WILSON (APRIL 2008 – VOL. 20, NO. 2)
I enjoyed reading about Tony Wilson’s daring exploits swimming with what many believe to be our professional equals (superiors?) – sharks. I am encouraged by the efforts of people like Tony to promote the value of lawyers and the profession of law.

I was equally impressed with his examples of our work, including the fact we help ensure the ability to live in a country where publishing cartoons depicting Muhammand, Jesus, et al is not a capital offence, but rather protected free speech.

I wonder however if Tony is aware that one of our colleagues, Calgary lawyer Ezra Levant, is currently before the Alberta Human Rights Tribunal for the very act of publishing the so-called Danish cartoons depicting Muhammad in the now-defunct Western Standard magazine.

It seems that in Alberta at least, the protection of this form of free speech is not yet settled law. – Major Sean Raleigh

NEW SUPREME COURT RULES OF CIVIL PROCEDURE – THE HONOURABLE WALLY OPPAL, QC, (APRIL 2008 – VOL. 20, NO. 2)
The most dangerous attacks on our liberties often come from the most innocuous proposals. Ontario’s Chief Justice Winkler has observed that “numerous case conferences may be justifiable on a theoretic basis, but each and every one of these steps costs money, and will drain away resources that litigants could otherwise use on steps that will have greater value in the long-run.” This is because “every step which is added to a proceeding must be presumed to be an impediment to justice.” His comments are apt, especially in B.C. where the provincial government imposes high court access fees, taxes legal fees, and shuts down court houses. Having put in place all those impediments, the government feigns shock that litigation is costly.

Attorney General Oppal’s update on the proposed new Rules of Civil Procedure in your April 2008 edition ignores all of that and starts instead with the assertion that “[f]eedback … has generally been positive” to the proposals. I do not agree. Set aside, for the moment, the government’s own charges on accessing justice. Focus just on the proposals. The Law Society, the CBABC and the TLABC (which I have the honor of serving as First Vice President) have all written critiques. Senior counsel and judges have provided either pithy or detailed comments questioning them. Articles published by CLE, The Advocate, newspapers, and blogs online argue that the case for the changes has not been made out.

If the new rules are enacted, counsel, in apprehensive tones, will come to say that a lawsuit has contracted “case management.” A serious bout of “case management” will mean many trips to the learned doctor of the law assigned to “actively” manage the case. The treatment will be long and there will be no guarantee of a cure. Many lawsuits will die of “case management.” What are now sporadic outbreaks of “case management,” will become an epidemic. Many will wonder if the cure is worse than the disease.

Attorney General Oppal opines that the new rules will work wonders. He argues that “increased judicial involvement in case management” and “an expanded role for lawyers” will lead to a promised land of civility and justice. Hark back to the words of Chief Justice Winkler. Contrast them with what Attorney General Oppal theorizes: “active case management” by judges and “expanded roles” by lawyers are “principles” that will reduce the process, delay, and cost of litigation. Those concepts are at war with each other. Where is the “expanded role” for lawyers? Is it to deal with judges who are actively managing their cases? How does either of those concepts square with reducing delay and cost? What does any of this have to do with getting at the truth and achieving a just result?

“It is very difficult to summarize changes to 400 pages of civil rules in a paragraph.” But the “400 pages” are the new rules. The old ones had the advantage of being succinct and the product of experience. Edmund Burke’s words get forgotten that “it is with infinite caution that any [one] ought to venture upon pulling down an edifice which has answered in any tolerable degree for ages the common purposes of society.”

The Attorney General says that the new rules will require “a new case initiation and defense process” – formerly known as pleadings – and will require that parties “accurately and succinctly state the facts and issues” – declarations parties must make before being allowed to pass “Go” and get on with their lawsuit. He adds that the proposals call for limiting discovery – presumably on the notion that if less diagnostic techniques are applied, diagnosis will be all the easier. Litigants have, until now, been able to hold governments and other institutions to account in the courts. Carrier Lumber, a case the government lost after its failure to produce relevant documents was uncovered and its wrongs were proven, is a leading example. But sadly it has led the government to fear discovery. Attorney General Oppal also says that the new rules will “limit the parameters of expert evidence.” Where is that in the proposals? If these points are so, we will be treated to the spectacle of the court deciding cases before hearing evidence and without allowing the parties to present their case.Lewis Carroll wrote of a courtroom scene in Alice in Wonderland: “‘Consider your verdict,’ the King said to the jury. ‘Not yet, not yet!’ the Rabbit hastily interrupted. ‘There’s a great deal to come before that!’ ‘Call the first witness,’ said the King.” Think carefully on all of this. Justice depends upon it. – Robert D. Holmes, Holmes & King

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These letters were published in the June 2008 issue of BarTalk.