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Optimize judicial resources with mediation for disputes under $5,000, at what cost?

Optimize judicial resources with mediation for disputes under $5,000, at what cost?

Since 1er March, mediation is mandatory in Quebec for disputes of $5,000 or less before the Small Claims Court. The measure, which aims to relieve congestion in the judicial system, continues its gradual deployment, after the judicial districts of Laval, Longueuil, Richelieu and Saint-Hyacinthe. I admit that this obligation to mediate causes me discomfort.

More than ten years ago now, when I worked as a lawyer, I represented vulnerable people sometimes living in precarious financial situations. I still remember the words of a luminary in the justice system about my client’s case, while I was in court. I paraphrase: “Master, are you serious? Are you really going to take time in court to recover a few thousand dollars?

At the time, I was shocked. The “few thousand dollars” (let’s say $5,000, for argument’s sake) was a lot, a lot of money for my client, much more than millions of dollars represent for multinationals that can afford to pay for legal services inaccessible to ordinary people.

Why should the experience in court be different for poorer individuals than for otherwise wealthier corporate entities, such as multinationals?

I experienced the same discomfort in 2020 when the then Minister of Justice, Sonia LeBel, asserted that virtual trials could continue after the pandemic for small claims. Once again, it’s like saying that causes with smaller financial stakes require different treatment, as if those causes were less important. But less important in whose eyes?

For several people, for several families, $5,000, sometimes, is what allows for food, housing, and registering your children for extracurricular activities. You see what I mean ?

Do I really need to repeat it: the problem of judicial delays is important. Yes, action needs to be taken. Yes, mediation should be encouraged! And I’m not against virtual trials, obviously!

But according to the Minister of Justice, Simon Jolin-Barrette, interviewed by Radio-Canada when the measure came into force in Quebec, compulsory mediation – for cases costing $5,000 and less – would allow “judges to devote their time time for pending files […] files that go up to $100,000, of greater complexity. It is important to use our judicial resources optimally.” Optimal, right? This is a very curious message.

Should we determine the attention given by the justice system to a case based on the amounts involved? After all, cases worth hundreds of dollars can affect fundamental rights, while cases worth millions of dollars can be nothing more than ego wars.

We can see things differently, with more nuance and flexibility. We can force the parties of several “small” cases to mediate, and thus free up time for a few “large” cases. We can also force the parties in a few “large” cases to mediate, and thus free up time for several “small” cases.

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