How Civil Procedure Fails (And Why Administrative Justice is Better)

The demand for more and better procedural fairness is a rallying-cry that receives almost universal support. All participants in the legal process – litigants, judges, legislators and lawyers – maintain that the justice of any outcome can be both affected by the quality of the procedures relied upon and offset by the failure to provide access to appropriate and balanced procedural opportunities. Indeed, unless losing litigants or applicants think that they are getting a fair shake when it comes to the procedures used, there will be even greater dissatisfaction with losing than otherwise might be the case. However, while good or fair procedures will not guarantee satisfaction, let alone fair decisions, they will go some of the way to placating people’s sense of dissatisfaction. As such, in a complex and disputatious society like Canada, there seems to be more agreement, although far from unanimous, on what might count as a fair procedure than on what would be treated as a fair result. This explains the attention that lawyers and judges pay to the fairness of different procedures in different areas of dispute. Getting procedure right obviates the more thorny challenge of getting substance right.