Access to Justice and Civil-Procedural Bargaining

Abstract:There is a virtual consensus that there is an 'access-to-justice' crisis in Canada. Some of the more concerning elements of the crisis – namely, the inaccessibility of courts – were brought into sharp focus at the onset of the global COVID-19 pandemic, wherein the already strained Ontario courts seemed poised to incur more 'case debt' and add to their already lengthy backlog. Responsively, governments and courts mounted a series of immediate reforms that were aimed at coping with the acute crisis, many of which were generally helpful measures that access-to-justice proponents advocated for even in non-emergency contexts. The relatively swift, frictionless nature of the changes – surely abetted by the emergency context – suggests that access-to-justice proponents, who often advocate large-scale legal, policy, and regulatory reforms, should consider what other such immediate, 'low-hanging fruit' interventions are available. Civil procedure offers fertile ground for such interventions. To this end, this article seeks to inform future reform efforts with three contributions. First, I argue that the access-to-justice problem is properly characterized as a civil-procedural problem. Second, I offer a new typology of civil procedural rules to fill conceptual gaps in the scholarship. Third, relying on an emergent literature about the concept of 'procedural flexibility,' I argue that procedural rules are more negotiable than traditional accounts contemplate, which presents opportunities for the practice of procedural bargaining as an access-to-justice tool.