Commentary on the “Unintended Consequences: The Regressive Effects of Increased Access to Courts”

In “Unintended Consequences: The Regressive Effects of Increased Access to Courts“, law professors Anthony Niblett and Albert Yoon analyzed users of the small claims court system. In 2010, the small claims court’s jurisdiction increased from $10,000 to $25,000. When Niblett and Yoon examined if that change increased access to the courts, they found a paradoxical result.

Niblett and Yoon looked at the postal codes recorded with the court and compared the postal code data to data from Statistics Canada. Following the change in the court’s jurisdiction, they found that the plaintiffs were on average from richer neighbourhoods. Household income increased from $80,052 to $82,868.

“As plaintiffs increasingly come from more affluent neighborhoods after the jurisdictional change, we also observe that defendants come from more affluent neighbourhoods after 2010. This trend is similarly true of both individuals and business defendants.”

Further, after the change in jurisdiction, over 30 percent of all claims filed alleged damages in excess of $10,000. Below is a chart of the average amount claimed per year:

2006 $3,174
2007 $3,385
2008 $3,647
2009 $3,593
2010 $6,704
2011 $6,852
2012 $7,055
2013 $7,011

As a result of the increased amounts claimed, Niblett and Yoon suspect that more complex cases have infiltrated the small claims court system. This in turn has increased the backlog. “Cases now take longer to be resolved. Cases are heard first-come, first-served, with no preference for expediting “very small” claims.”

In my opinion, the demographics revealed in this report are consistent with a pattern. Groups that are often forced to deal with the judicial system (e.g. through criminal proceedings) tend not to be the groups that choose to engage with the court system. We frequently see marginalized groups disproportionately represented in prisons but do not see those same groups voluntarily resolving family or civil disputes through the courts. Revealing that although our courts are technically open to all, in actuality they are not.

Sometimes it seems that not much has changed since Sir James Matthew (an Irish judge at the turn of the 20th century) quipped that “justice is open to all, like the Ritz hotel”.

(Views expressed in this blog are my own and do not reflect the views of any organization.)

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