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Magna Carta and Access to Justice: The Legacy of Proportionality in Nova Scotia

Originally a foundational document of the English legal system, Magna Carta has become a document viewed through an uneasy lens by the Canadian courts. When it is discussed in judicial decisions, it is more often referred to in rhetoric rather than relied upon for substantive reasoning. However, whether the courts explicitly rely on it or not, the relevance of the principles it articulated remains, and this is particularly true in the context of access to justice.

Access to justice as established by Magna Carta requires that justice be both accessible to all, and available in a timely fashion.[1] This aligns with the modern concept of proportionality, where the amount of procedure allocated to an issue reflects the individual circumstances. Proportionality promotes conservation of judicial resources, which allows for faster consideration of issues, and, ultimately, a system that is more accessible. Under the current Nova Scotia Rules of Civil Procedure, there are numerous opportunities to customize individual cases, demonstrating that the principles of Magna Carta remain relevant to the current civil litigation system.

Direct Relevance

As demonstrated by recent case law from British Columbia, an argument that modern substantive access to justice rights originate from Magna Carta is unlikely to succeed. In the context of a challenge to a provincial tax on legal services,[2] the Court of Appeal explicitly declined to rely on Magna Carta, as they deemed that access to the courts was a “fundamental right” guaranteed by the preamble to the Constitution Act, 1867.[3] While the Court concluded that access to justice is a right, the tax did not constitute infringement, but was simply an inconvenience.

A further attempt to strike down a legislatively imposed court fee was ultimately successful under section 96 of the Constitution Act, 1867; however, the Magna Carta aspect of the argument was found unpersuasive.[4] In rejecting the argument, the Court drew upon the prior decision of R v Jebbett.[5] Jebbett concluded that Magna Carta was not a constitutional document, but simply a statute subject to amendment and modification by other legislation; therefore, it could not be used to strike down other legislation.[6] Using this precedent, the Court concluded that any attempt to use Magna Carta as establishing a right to uninhibited access to the courts will fail, stating “to the extent Magna Carta is pertinent, it does not stand in the way of the general proposition that, historically, access to the courts has always had at least some conditions imposed upon it.”[7]

Indirect Relevance

Although Magna Carta may not be able to strike down legislative provisions regarding access to the courts, the principle remains. It is clear from both judicial decisions and legislative enactments that access to justice remains an important aspect of the legal system. The recent Supreme Court of Canada decision of Hryniak v Mauldin has set out a number of important principles with respect to access to justice.[8] Particularly, it emphasized the proportionality principle, the idea that the “best forum for resolving a dispute is not always that with the most painstaking procedure.”[9] This approach represents a departure from trans-substantive equality, the idea that all disputes should be dealt with uniformly for fairness, but is a more realistic acknowledgement that not all legal conflicts require the same approach.

In some ways, it can be argued that this individualization of procedure contravenes the spirit of Magna Carta, as it may result in preventing cases from going to a full trial, which can be considered a refusal of justice. However, this proposition can be rejected on the basis that “justice delayed is justice denied,”[10] and so a system promoting timely access to the courts is consistent with the guarantees of Magna Carta.

The Nova Scotia Experience

Magna Carta claimed that justice should be available for all in a swift and expedient fashion, and this principle remains a pillar of the Nova Scotia civil litigation system. This system is governed by the Civil Procedure Rules, which contain the stated objective of being “for the just, speedy, and inexpensive determination of every proceeding.”[11]

While this purpose statement demonstrates the continued relevance of Magna Carta, it requires procedural provisions to support the claim.[12] To that extent, the actual Rules must be assessed for the potential application of the proportionality principle. The Rules demonstrate that there is no longer such a thing as “ordinary” procedure. While default provisions may exist, the options and mechanisms available provide parties and the Court with the ability to customize proceedings to individual circumstances.

However, it should also be noted that the mere existence of the potential to customize proceedings is not enough to create proportionality, as clients are likely not aware of the options, and lawyers can underutilize them. There must be consequences that encourage parties to use proportionate procedure. The system for awarding costs could have a significant impact on emphasizing these measures. Through the discretionary nature of costs, the power under the Rules to do this already exists,[13] and simply requires more application by the courts.

Pre-Trial Procedure

The discovery process currently represents one of the most time-consuming and resource intensive aspects of civil litigation. The Rules allow parties to reduce the requirements of this stage by giving primary authority over this aspect to the parties conducting the case. The Court is relegated to an overseer role, with judicial intervention only occurring if the parties are unable to agree, and make a motion to the Court for guidance.[14]

This allows for flexible discovery arrangements to be made, and this is becoming increasingly important in the context of electronic disclosure under Rule 16. As the occurrence of electronic documentation increases, so too does amount of time that would be consumed by full disclosure of these documents. By allowing the parties to completely circumvent electronic disclosure by consent,[15] the procedural requirements can be minimized in situations where this process is not required.

The dichotomy between actions and applications in Nova Scotia allows for situations to be tailored to the procedural needs. There is a great deal more procedural flexibility in applications, with discovery only occurring if the Court is satisfied that justice requires it.[16] The presumption that a proceeding should occur by application further advances proportionality by placing the onus on the party attempting to convert the proceeding to an action.[17] Even if a proceeding does occur by way of action, a distinction exists for certain actions under $100,000.[18] In this literal application of proportionality, procedure is minimized because of the lower financial consequences of the decision. Similar to applications, the pre-trial stage is restricted for these actions, with an onus on parties to demonstrate why they should be given more procedure.

Mechanisms also exist to ensure that suits with no reasonable prospect of success do not continue to linger in the court system. Pre-trial dispositions allow the Court to exercise a gate-keeping function to conserve judicial resources for cases that truly require them.[19] By allowing the dismissal of cases without merit through summary judgement, the Court can more properly focus its attention where needed.

Alternative Dispute Resolution

Proportionality is also served by the Rules recognizing the role that alternative dispute resolution (ADR) can play in the justice system. By allowing the Court to enforce arbitration orders,[20] the Rules are recognizing the legitimacy of those proceedings. The ADR process is entirely designed by the parties, and so they are able to customize it based on their own expectations and requirements, allowing for proceedings to be as proportional as possible.

However, the integration of ADR in the Rules can be criticized for the lack of emphasis given to mediation. A mandatory mediation system, such as the one in place in Ontario, would emphasize the importance of this process, and help parties to shape their case and ensure that it only continues through the courts if there truly is an irreconcilable dispute that requires judicial intervention. [21]


The civil litigation system has extensively developed over the past 800 years, but the idea of justice being accessible remains vitally important. Although the courts have rejected attempts to substantively apply Magna Carta, the ideas articulated can clearly be seen in the modern approach to litigation within the Nova Scotia Civil Procedure Rules.

The just, speedy, and inexpensive resolution of disputes that the Nova Scotia Rules claim to strive for require proportionality. While parties to a dispute may want every procedural entitlement available, it is becoming increasingly recognized that that is not always necessary. The existing Rules provide numerous opportunities to customize legal proceedings, and as parties begin to explore these options more, the legal system can continue to strive for the objectives that have been recognized as an important goal since the time of Magna Carta.

[1] Clause 40: To no one will we sell, to no one deny or delay right or justice.

[2] John Carten Personal Law Corp v British Columbia (Attorney General), 1997 CarswellBC 2290, leave to appeal to SCC refused, 26625 (October 8, 1998).

[3] Constitution Act, 1867 (UK), 30 & 31 Vict, c 3, reprinted in RSC 1985, App II, No 5.

[4] Vilardell v Dunham, 2012 BCSC 748, aff’d 2014 SCC 59 [Vilardell].

[5] R v Jebbett, 2003 BCCA 69 [Jebbett].

[6] In Jebbett, Magna Carta was brought in to British Columbia law by the Law and Equity Act, RSBC 1996, c 253, ss 2–3. However, English legislation passed before the formation of provincial legislatures can be seen as good law. See e.g. Babstock v Atlantic Lottery Corporation, 2014 NLTD(G) 114, at paras 82–83.

[7] Vilardel, supra note 4, at para 297.

[8] Hryniak v Mauldin, 2014 SCC 7.

[9] Ibid at para 28.

[10] Rahey v R, [1987] 1 SCR 588 at para 118, 39 DLR (4th) 481 [Rahey].

[11] Rule 1.01.

[12] The lack of such an enforcement device was a criticism of the original guarantee from Magna Carta, as acknowledged in Rahey, supra note 10, at para 98.

[13] Rule 77.02.

[14] Rule 18.

[15] Rule 16.05(1).

[16] Rule 5.

[17] Rule 6.02(2).

[18] Rule 57.

[19] Rule 13.

[20] Rule 10.04(5).

[21] See Augustus Richardson, “Was Lincoln Right?” in David L. Blaikie, Thomas A. Cromwell & Darrel Pink, eds, Why good lawyers matter (Toronto: Irwin Law, 2012) 29 at 39–39.

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