Taking Proportionality Seriously: A Countercultural Approach

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.