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I.INTRODUCTION
The commonly encountered but amorphous phrase "access to justice" implies openness by judicial processes and to court remedies. Canadian courts are necessarily available to anyone as the right to judicial remedies is a constitutional guarantee.2 However, as Justice Morissette observes in the preceding essay,3 unlimited "access" has an inevitable corollary: waste.
Were Canadian courts an unlimited resource, then that would, perhaps, not be an issue. Instead, the opposite is true. Canadian courts are stressed and struggle to meet their social functions.4 As Justice Stratas observed in Canada v. Olumide,5 unlimited and unrestrained court access leads to the "tragedy of the commons", self-interest over-exploiting and thus damaging a public resource.6
The historic UK common law response to unmeritorious and abusive litigation has been that the unsuccessful and/or abusive litigant be required to pay costs, a negative feedback loop that, theoretically, discourages misuse of judicial resources. But, as Justice Morissette has powerfully illustrated in his essay, that simply does not work with some (or many) abusive litigants. Their actions are often a mental health phenomenon, and, in that sense, not a rational exercise in balancing benefit and cost.7 Worse, successful psychiatric treatment is not a realistic option.
Justice Morissette documents that this abusive litigation is plausibly increasing. That also appears to be the situation in the Alberta Courts.
In Part III of the preceding essay, Justice Morissette makes the important observation that the potential for serious querulous and vexatious abuse of court processes is a structural characteristic inherent in the UK common law court apparatus. Other judicial arrangements, particularly those that place control of court procedure directly in the hands of judges, are comparatively resistant to querulous and vexatious abuse. However, radical re-design of Canadian courts in that direction is simply not plausible.8
What then may be done?
II.BUILDING BETTER DEMONS
One partial answer is active gatekeeping. Nineteenth century physicist James Clerk Maxwell developed a thought experiment, now commonly known as "Maxwell's Demon", where gatekeeping could extract order from a chaotic system.9 Maxwell imagined two chambers, separated by a common wall. In that wall is a gate, monitored by Maxwell's Demon. The Demon gatekeeper selectively opens and closes its gate to permit fast moving atoms to pass into one chamber, and slow-moving atoms into the other....