Scanned, recopied or Internet copy, if there are errors, please e-mail me with corrections: Opening comments: More at the end. Toronto Star - Mar. 3, 2007 - By Tracey Tyler, LEGAL AFFAIRS REPORTER & Ashley Fraser FOR THE TORONTO STAR The dark side of justice With the cost of a three-day civil trial estimated at $60,738 – more than a year's income for most households – Canadians are being driven to financial and emotional ruin by a justice system that's priced itself solidly out of reach. Some have gone bankrupt pursuing their legal rights. Others end up in court without a lawyer, where they are quickly overwhelmed. One Ontario man was jailed for contempt of court in 2005 after clumsily arguing his own case. An underfunded legal aid system limps along – and even the poor are often considered too rich to qualify. One measure of the system is to consider its winners. Nycole Landry is one of them. Unfairly fired from her $28,000 job as an airline pilot, she ultimately won her case and was awarded damages, but "victory" took more than a decade and left her career in tatters. The principle of justice for all, embodied by the Charter of Rights and Freedoms, is in danger of becoming a cliché. "It's only the relatively affluent in society, for the most part, who can afford to go through a trial," says Ontario Chief Justice Roy McMurtry. Access to justice, McMurtry says, is the most important issue facing the legal system. Justice Ian Binnie of the Supreme Court of Canada offered a blunt analysis. Writing in the recent case of Little Sisters, the Vancouver bookshop fighting Canada Customs over the seizure of four books, Binnie observed that the profit on the sale of those books would not pay for half an hour of a lawyer's time. Even when one's constitutional rights are at stake, no rational businessperson could justify a protracted court battle. Even judges and lawyers doubt they could afford to go to court. After losing a recent battle over their compensation, an association of provincial court judges decided not to appeal, citing the financial burden. "Legal fees have become exorbitant," says Toronto civil litigator Mark Arnold. "I doubt I could afford to hire myself at a modest $400 an hour." Fees run as high as $800 an hour. But Linda Rothstein, a former president of the Advocates' Society, an association of litigation lawyers, believes a bigger issue is a "collective neurosis" swallowing up the profession. Fear of failing to do the utmost for their clients, not greed, is what motivates most lawyers, she said. They file too many documents, call unnecessary witnesses and bring needless motions – even when they're acting for free in a pro bono case. The result is cases that seem to go on forever. One trial in Montreal, involving the bankruptcy of an investment company, is now in its ninth year. The problem is attracting some political attention. Last year, Ontario Attorney-General Michael Bryant asked former associate chief justice Coulter Osborne to study the civil justice system's problems. Measures have been introduced to reduce costs and speed up the process, including permitting class action lawsuits, contingency fees and mediation. But there are trade-offs. Procedural safeguards are often sacrificed. Some forms of simplified trials, for example, require giving up the right to cross-examination. The latest concept is the "unbundling" of legal services, which allows people to hire lawyers for part of their cases and do the rest themselves. To Associate Chief Justice Dennis Schmidt of the British Columbia provincial court, it's "absurd," not unlike allowing a medical patient to administer their own anesthetic. "Why don't we fix the system?" Had Nycole Landry known the personal and financial cost of pursuing justice, she would never have bothered. "It's not worth it," she said. Landry arrived on Baffin Island 20 years ago, the newest employee of Bradley Air Services. She had long dreamed of being a pilot and did well at flight school, but graduated during a recession, when jobs were scarce. She started in Iqaluit as a dispatcher, but soon qualified to pilot a 12-passenger Twin Otter. Seen as hardworking, conscientious and friendly, she was promoted to second officer on a Boeing 727 the next year. By the fall of 1989, Landry started training on the Hawker Siddeley 748, a passenger and cargo carrier considered challenging to handle. She struggled to land the plane in crosswinds, a constant challenge in the north. Landry failed a flight test, but tried again after returning from maternity leave. It did not go well. On a flight between Iqaluit and Broughton Island, the captain tested her for a simulated engine failure. Landry was out of practice, nervous and caused the plane to roll. She failed and rescheduled another test. In the meantime, she learned the company planned to get rid of her. Told she wasn't cut out to be a pilot, she was fired in 1993. Two federal labour arbitrators did not agree, saying that, while the company was entitled to remove Landry from the Hawker Siddeley, it was unjustified in firing her outright. Arbitrator Paul-Emile Chiasson ordered Landry reinstated, criticizing the company for its "overly aggressive" approach. Four years later, at a second hearing, after a series of appeals, arbitrator Serge Brault blasted the company for its "cavalier" treatment of Landry and the "reckless" way it fired her. Although Landry was ultimately vindicated, it's hard to say which was more traumatic: Her treatment on the job or her legal battle to reclaim it. Landry and her husband, of L'Orignal, near Ottawa, met Michel Charbonneau at his law office in nearby Hawkesbury. A lawyer for 17 years, Charbonneau charged $200 an hour, average for Ontario at the time. Charbonneau estimated his fees in the case would be between $2,000 and $3,000, plus expenses and GST. He asked for a $2,000 deposit. Charbonneau charged $95 for his first meeting with Landry and another $95 to review her documents. His law partner, Robert Smith, handled much of the work and the firm saved Landry money by assigning smaller tasks to a $60-an-hour articling student. As her arbitration hearing drew closer, the case grew unexpectedly complicated. The company planned to call nine witnesses, all experienced pilots. Landry's lawyers would have to cross-examine each one. Preparing and arguing the case would take more time and that meant more money. Landry took a part-time job in a bank. The hearing before arbitrator Chiasson continued for 10 days. Landry called only one expert, Duane Stewart, a former Royal Canadian Air Force flight-training specialist who worked with her husband at another airline. The company's lawyers argued Stewart was not credible because of his close ties to Landry and his willingness to testify at no cost. But Chiasson disagreed, saying it shows how the cost of an expert witness is "out of reach" for most people. Landry's legal fees for the hearing totalled $31,965.47. While he ruled that Landry had been wrongly dismissed, Chiasson held off awarding damages until her reinstatement could be worked out. It never got that far. The company appealed Chiasson's decision to the Federal Court of Canada. Landry paid her lawyers $9,000 in the early stages, then ran out of money. She says they told her not to worry – they would straighten it out later. "They said it wasn't about money, it was about justice," says her husband, Steven. Charbonneau and Smith, now both Superior Court judges, declined to discuss the case. Landry's bills show their firm spent 107 1/2 hours on the appeal, including preparation and two days in court, which translated into $15,052. The Federal Court overturned the arbitrator's decision and ordered a new hearing, saying Chiasson had applied the wrong standard of proof. Landry went to the Federal Court of Appeal, which added $18,441 to her bill. A panel ruled against her, upholding the decision to send the case back to arbitration. Landry's lawyers decided it was time to talk. Smith handed her a detailed account. She was shocked to see a bill of nearly $75,000. Landry's lawyers approached the company about a settlement. The airline offered $90,000, plus a letter of recommendation. Her lawyers offered to reduce their bill to $55,000, which would have left Landry with about $35,000. She rejected the offer. At that point, the fall of 1996, she had been fighting for three years to reclaim her job, had not been able to find work as a pilot and was seeing a therapist. In January 1997, Smith explained the firm needed its account paid or he would ask to have the upcoming arbitration adjourned. Landry's brother-in-law, Sylvain Dufresne, agreed to take over her case. Meanwhile, the Superior Court of Justice reviewed Smith's firm's bill and concluded Landry owed the full amount, $76,401.67. Landry declared bankruptcy. Brault ruled in Landry's favour in December 1998. But a court-appointed trustee handling Landry's bankruptcy wanted a piece of her settlement to cover the fees owed to Smith's firm. Smith himself was acting for the trustee in the case, which took six years to resolve. Landry hired a new lawyer, Matthew Halpin. The battle worked its way up to the Ontario Court of Appeal and was finally resolved with Landry paying the law firm $35,000. It wasn't until February 2002 that Brault was finally able to award damages. He ordered the company to pay Landry $80,000 for lost wages, $100,000 for pain and suffering, and $50,000 in punitive damages. Brault also awarded her $47,000 for job retraining. Landry's pilot's wings had lapsed and she had little chance of again flying professionally. Dufresne was awarded $165,000 for legal fees and expenses. Total award: $442,000. Last year, Landry finished paying taxes. After 13 years, four lawyers, $250,000 in legal bills and incalculable stress and frustration, she was left with about $100,000. "If I knew then what I know now, I would have never gone through this." Home Page - Main Table of Contents - Back up a page - Back to Top [COMMENTS BY DON B. - ] |
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