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Editorial: Justice isn’t cheap


Justice delayed, as the saying goes, is justice denied. That’s at the core of recent Supreme Court of Canada decisions that stopped many criminal trials in their tracks. If prosecutors don’t have enough resources to bring cases to trial quickly enough, the Supreme Court has said charges should be stayed — meaning that victims and their families may never see their day in court.

But justice overpriced is also justice denied — and that’s certainly what’s happening on the civil side of the law.

Everyone’s heard at least one story about a marriage breakup so bitter that neither spouse gives any quarter —where once-married couples would rather pile up their cash in the front yard and have a bonfire than see even a penny go to their former partner. They battle back and forth in court, exhausting all options and savings, intent on hollow victory.

But their bank accounts are not the only ones that can get chewed up and spat out by the huge costs of the court system.

Take just one case over a disputed laneway in Orillia, Ont., and whether the property was a right-of-way that allowed access to the back of two properties on Mississaga Street. One owner wanted access to parking spaces and rental units at the back of his building; the other felt he owned the laneway, and should be allowed to continue blocking access to it.

The long and short of the case is that neither side won absolutely. There was clear evidence that a right-of-way dated back to property documents filed in 1892, but the judge ruled that the lane was too narrow for vehicular traffic, and would have to be limited to pedestrian traffic.

The other side of the case — which really could only be settled in the courts, given the polar opposite positions of the parties? The cost.

Both parties claimed to have been successful in the case, and both claimed the right to collect partial indemnity costs from their opposition — in Ontario, partial indemnity costs amount to something less than 50 per cent of your lawyer’s actual fees.

One side in the laneway case claimed partial indemnity costs of $87,580.84. The other side, $86,386.49.

Total up all the potential legal costs that those partial indemnity claims include, and you’re at a global amount perilously close to $350,000.

All to decide whether an easement clearly granted in 1892 still existed.

And that’s the problem with taking your case to court: even the side deemed to be the winner still had to come up with close to $100,000 simply to fight for its legitimate rights.

That’s out of reach for almost everyone.

Ask yourself this: if you were fighting the same issue, would you be able to afford to lose a case like that? Worse: would you even be able to afford to win?

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