Trevor C. W. Farrow

Civil Justice, Privatization and Democracy

This project is about the privatization of civil justice and its potential ramifications for democracy. Privatization is rapidly and increasingly occurring at all levels of the public justice system, including courts, tribunals and state sanctioned private dispute resolution regimes. This reform movement is driven by a wide-spread ethos of efficiency-based civil justice reform. There are many sound reasons for these privatization trends, including reduced costs, increased speed and efficiency, privacy, enhanced participation and autonomy through increased party choice within and control over dispute resolution processes, and improved access to the tools of justice. However, these trends also have a number of costs in the form of negative impacts on the development of the common law, potential procedural unfairness, power imbalances between disputants and a potential negative impact on systems of democratic governance. Civil society is publicly regulated largely through legislation and adjudication. To the extent that we are actively privatizing how we do adjudication, we are in effect actively privatizing a large part of the way we govern ourselves in modern democracies.By raising these issues, this project has three main goals. First, it seeks to bear witness to the modern and wide-ranging privatization initiatives that are currently defining the way we think about and resolve almost all non-criminal disputes. Given its importance, we need to publicize, politicize and ultimately temper – although not eliminate – this move to the private. Second, this project seeks to articulate the benefits and costs of these privatizing initiatives, particularly including their potential negative impacts on the way we publicly regulate ourselves in modern democracies. Third, this project makes recommendations for future thinking about, and approaches to, civil justice practice and reform. In so doing, it calls on academics, jurists, civil justice reformers, elected representatives, practitioners and citizens to engage in a robust debate about all aspects of the privatization of civil justice, the future of which will have a fundamental impact on our public processes of democracy.

Re-Framing the Sharia Arbitration Debate

The “matter of religious arbitration in . . . Ontario” to which Margaret Atwood and nine others are referring is a vocal, polarized debate – the “[S]haria debate.” 2 It has largely been framed by two questions. Should Ontario “[p]rohibit the use of religion in the arbitration of family law disputes” 3 to avoid “the ghettoization of members of religious communities as well as human-rights abuses?” 4 Or would such a prohibition do a “great disservice to a number of religious groups in Ontario, and nothing to safeguard the interests of Muslim women?” 5 Several fundamental rights and interests are engaged by this debate, including religious freedom, gender equality, the rights of children, national and cultural identity, freedom from hatred, the role of the state in family law, and others.

Canadian Civil Justice: Relief in Small and Simple Matters in an Age of Efficiency

Canada is in the midst of an access to justice crisis. The rising costs and complexity of legal services in Canada have surpassed the need for these services. This article briefly explores some obstacles to civil justice as well as some of the court-based programmes and initiatives in place across Canada to address this growing access to justice gap. In particular, this article explains the Canadian civil justice system and canvasses the procedures and programmes in place to make the justice system more efficient and improve access to justice in small and simple matters. Although this article does look briefly at the impact of the global financial crisis on access to justice efforts in Canada, we do not provide empirical data of our own on this point. Further, we conclude that there is not enough existing data to draw correlations between austerity measures in response to the global crisis and the challenges facing Canadian civil justice. More evidence-based research would be helpful to understand current access to justice challenges and to make decisions on how best to move forward with meaningful innovation and policy reform. However, there is reason for optimism in Canada: innovative ideas and a national action plan provide reason to believe that the country can simplify, expedite, and increase access to civil justice in meaningful ways over the coming years.