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Taking Proportionality Seriously: A Countercultural Approach

Introduction

Taking proportionality seriously: a countercultural approach. This article redefines proportionality in Ontario civil procedure, arguing it's as vital as substantive justice. Prioritizing collective resource distribution, it suggests a countercultural shift in legal culture.

Abstract

Proportionality was introduced into Ontario’s Rules of Civil Procedure in 2008. A plain reading of Rules 1.04(1) and (1.1) is the ‘traditional’ interpretation of proportionality: that proportionality is merely the means of furthering efficiency and economy in individual cases, with the aim of better securing substantive justice on the merits in those cases. The relative measure is what is at stake in the individual case. This article suggests a counter-cultural interpretation: that proportionality is equal in importance to substantive justice and that, in certain circumstances, substantive justice in individual cases must give way to proportionality, in order to secure the just distribution of resources for all cases. The relative measure is what is at stake for the civil justice system as a whole, with justice defined more collectively. This article posits that proportionality can effect a change in our legal culture, but only if we accept a countercultural definition of that word.

Review

The article, "Taking Proportionality Seriously: A Countercultural Approach," presents a compelling re-evaluation of proportionality within Ontario’s Rules of Civil Procedure. It begins by outlining the widely accepted, "traditional" interpretation, which views proportionality primarily as a tool for enhancing efficiency and economy in individual cases, ultimately serving to better achieve substantive justice on the merits of those specific disputes. The author then introduces a provocative "counter-cultural" interpretation, arguing that proportionality holds an equivalent weight to substantive justice itself. This radical view posits that, in certain contexts, the pursuit of substantive justice in an individual case must yield to proportionality, not for the sake of that case, but to ensure the equitable allocation of resources across the entire civil justice system, thereby defining justice more collectively. This article's strength lies in its bold intellectual ambition and its willingness to challenge deeply entrenched legal paradigms. By advocating for a system-wide perspective on proportionality, the author effectively re-frames the discourse from one centered on individual litigant outcomes to one that considers the broader societal impact of resource distribution within the justice system. The "counter-cultural" definition is not merely a semantic shift but a call for a fundamental transformation in legal culture, suggesting that true change can only occur if we recognize proportionality as an independent value, capable of dictating outcomes even at the expense of what might traditionally be considered ideal justice in a single case. This reorientation offers a fresh lens through which to analyze the effectiveness and fairness of civil procedure. While the abstract lays out a compelling theoretical framework, a full article would ideally delve into the practical implications and potential challenges of implementing such a radical shift. Future elaboration could explore the specific "certain circumstances" where substantive justice would cede to proportionality, and how judges and practitioners might navigate this tension in real-world scenarios. It would also be valuable to consider the potential for judicial resistance to such a redefinition, given the inherent drive to deliver individual justice. Nevertheless, this article promises to be a significant contribution to the ongoing debate about civil justice reform, prompting essential questions about the true purpose and function of proportionality and the collective responsibility of the legal system.

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