A study of the judicial enforcement of debts in Manitoba : inequality in the civil courts
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Date
1989
Authors
Lewis, Tracey Katherine,
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Abstract
Conflict theory provided the theoretical basis for a study of the judicial enforcement of debts. The thesis focused on one type of civil action, those initiated to enforce the payment of a debt owed as a result of a breach of contract. A literature review highlighted three areas that required more study and which the thesis addressed: a class analysis of judicial debt enforcement, the debtor's reason for not paying the debt, and the implications of large numbers of default judgments. One hundred and thirteen cases from the Small Claims Court and 190 cases from the Court of Queen's Bench were selected for a total sample size of 303. Relevant legislation was used to provide a description of legal procedure in both courts. Interviews were conducted with 10 individual defendants whose cases resulted in default judgment and 8 individual defendants whose cases had not proceeded to judgment. A conflict theory of law was supported by the key findings of the research which raised questions about the success of the small claims court by demonstrating inequality in the judicial enforcement of debts. Less than one-quarter of the small claims plaintiffs were individuals, and only 10% of plaintiffs filed claims because of a dispute with the seller over the quality of goods or services. Approximately 50% of the plaintiffs were represented by legal counsel, while only 4% of defendants were represented. Approximately 75% of the defendants did not attempt to defend the claim against them, resulting in default judgment, and the majority of these defendants were individuals. The majority of defendants did not defend themselves because of a lack of information about the legal system. Most gave reasons for not paying the debt that constituted possible legal defences to the claim. More than one-half of the claims filed in the Court of Queen's Bench could have been filed in the Small Claims Court. Eighty percent of the defendants, mostly individuals, were not represented by legal counsel, while 90% of the plaintiffs, typically businesses, were represented. Informal procedures and minimal fees were not adequate measures for obtaining equality because they were designed to reduce the reliance on the legal profession thereby allowing individuals to initiate and defend actions, but they did not address the inequality between litigants created by greater access to financial and legal resources. The importance of legal competence in maneouvering one's case through the civil court, whether as plaintiff or defendant, confered a significant advantage on corporate litigants. Consequently, the judicial enforcement of debts favoured corporate rather than the individual interests.