By Dr. Gerard J. Kennedy
Across Canada, the chief justices of the provinces have been known to take a lead on “access to justice”. This is often, but by no means exclusively, done through emphasizing how to apply and potentially reform civil procedure. In my forthcoming Manitoba Law Journal article, I analyze the legacy of recently retired Chief Justice Richard Chartier in this regard. On first blush, he seems an odd fit to fulfill this role. He was a corporate lawyer, not a civil litigator, before spending thirteen years on the Provincial Court, dealing with criminal and family cases. Upon elevation to the Court of Appeal in 2006, he had only the most passing of experiences with civil procedure despite a very distinguished legal career spanning nearly a quarter-century. Nonetheless, this article demonstrates that he has understood the purposes of procedural law and made an important contribution to it.
Chartier CJ’s contributions include:
- ensuring actions are resolved promptly on their merits, particularly through using summary procedures;
- seeking to avoid delay in litigation, balancing timeliness with resolution of claims on their merits;
- resolving issues on appeal, if possible; and
- valuing finality.
Irrespective of how broadly or narrowly one defines access to justice, it certainly includes litigation being quicker and entailing less financial expense. Using procedure to facilitate the prompt and inexpensive resolution of civil actions on their merits is thus, other things being equal, a boon for access to justice. Chartier CJ’s decisions indicate such an access to justice-centred approach to civil procedure. As explored in the full article, the survey of his jurisprudence indicates a willingness to use summary procedures and appellate powers to resolve actions on their merits. At the same time, we also see indication that he does not view the use of procedure to resolve actions on “technicalities” to be a good.
Ultimately, and recognizing that no one will ever agree with any judge’s entire body of decisions, Chartier CJ’s approach to civil procedure and appellate practice indicates that he values: predictability, guiding lower courts; efficiency, in not taking longer than necessary to resolve actions on their merits; and fairness, ensuring procedure facilitates rather than hinders resolution of actions on their merits, barring exceptional circumstances. These purposes of civil procedure indicate Chartier CJ’s cognizance of why this area of law exists.
The views expressed in these blogs do not necessarily reflect the views of the Faculty of Law at the University of Manitoba and should not be construed as legal advice or endorsement.