1. There is, of course, a substantial empirical literature on various aspects of Small Claims Court processes. For a small sampling of the issues, see, on plaintiff attitudes, Hildebrandt, K., McNeely, B. & Mercer, P., “The Windsor Small Claims Court: An Empirical Study of Plaintiffs and Their Attitudes” (1982) 2 Windsor Yearbook of Access to Justice 87.Google Scholar On the effectiveness of Small Claims Court mediation, see McEwan, C. & Maiman, R., “Mediation in Small Claims Court: Achieving Compliance Through Consent” (1984) 18 Law and Society Review 11 CrossRefGoogle Scholar; Vidmar, N., “An Assessment of Mediation in a Small Claims Court” (1985) 41 Journal of Social Issues 127.CrossRefGoogle Scholar On the relative significance of case characteristics and disputing forum, see the debate between McEwan/Maiman and Vidmar, the last instalment of which was published in (1986) 20 Law and Society Review 439 and (1987) 21 Law and Society Review 155. On overall effectiveness, see Wissler, R., “Mediation and Adjudication in the Small Claims Court: The Effects of Process and Case Characteristics” (1995) 29 Law and Society Review 323 CrossRefGoogle Scholar; Bogart, W. & Vidmar, N., “Problems and Experience with the Ontario Civil Justice System: An Empirical Assessment” in Hutchinson, A., ed., Access to Civil Justice (Toronto: Carswell, 1990) 38.Google Scholar

2. This question has been studied in the United States by ethnologists who have examined the persuasiveness of different forms of discourse in the courtroom, and how judges control these forms. See Conley, J. M. & O'Barr, W. M., Rules Versus Relationships (Chicago: University of Chicago Press, 1990).Google Scholar

3. Again, there has been some fieldwork into this question in the United States. This fieldwork has focussed largely on litigant perceptions of legal processes rather than on judicial perceptions of litigants and of the judicial role. For an assessment of plaintiff motivation in bringing disputes to formal trial, see Merry, S. E., Getting Justice and Getting Even: Legal Consciousness Among Working-Class Americans (Chicago: University of Chicago Press, 1990).Google Scholar

4. Two essays suggesting how judges ought to approach this question have been written by Jeremy Webber. Webber, See J., “The Adjudication of Contested Social Values: Implications of Attitudinal Bias for the Appointment of Judges” in Appointing Judges: Philosophy, Politics, Practice (Toronto: Ontario Law Reform Commission, 1991) 3 Google Scholar [hereinafter: Adjudication of Contested Social Values]; and “Adjudicating Between Visions of Society: Transcending Gender Bias, Class Bias, Cultural Bias in Judicial Decision-Making” [forthcoming, 1996].

5. On the utility of promoting access to justice through Small Claims Courts and other “informal” means of dispute resolution, see Finkle, P. & Cohen, D., “Consumer Redress Through Alternative Dispute Resolution and Small Claims Court: Theory and Practice” (1993) 13 Windsor Yearbook of Access to Justice 81 Google Scholar; Macdonald, R. A., “Accessibilité pour qui? Selon quelles conceptions de la justice?” (1992) 33 Cahiers de droit 457 CrossRefGoogle Scholar; Conley, J. & O'Barr, W., “Fundamentals of Jurisprudence: An Ethnography of Judicial Decision-Making in Informal Courts” (1987) 66 North Carolina Law Review 467 Google Scholar; Conley, J. & O'Barr, W., “Litigant Satisfaction Versus Legal Adequacy in Small Claims Court Narratives” (1985) 19 Law and Society Review 661.Google Scholar On legislative intentions generally in instituting Small Claims Courts, see Axworthy, C. S., “Controlling the Abuse of Small Claims Courts” (1976) 22 McGill L.J. 480 Google Scholar; Whelan, C. J., “Small Claims Courts: Heritage and Adjustment” in Whelan, C. J., ed., Small Claims Courts: A Comparative Study (Oxford: Clarendon, 1990) 207 Google Scholar; Applebey, G., “Small Claims” in Samson, C. & McBride, J., eds., Solutions de rechange au reglèment des conflits (Ste-Foy, Quebec: Presses de l'Université Laval, 1993) 43.Google Scholar

6. Weber, See M., Max Weber on Law in Economy and Society, trans. Rheinstein, M. & Shils, E. (Cambridge, Mass.: Harvard University Press, 1954)Google Scholar, passim, but especially at 264ff. See also the “Introduction” by Max Rheinstein at xlii–lii.

7. The metaphoric reference to the Wizard of Oz as a commentary on expert knowledge and methodology is not new. Sarat, See A., “Off to Meet the Wizard: Beyond Validity and Reliability in the Search for a Post-empiricist Sociology of Law” (1990) 15 Law and Social Inquiry 155 CrossRefGoogle Scholar; Esser, J. & Trubek, D., “From ‘Scientism Without Determinism’ to ‘Interpretation Without Polities’: A Reply to Sarat, Harrington and Yngvessen” (1990) 15 Law and Social Inquiry 171.CrossRefGoogle Scholar Unlike Sarat, however, we did not use the Wizard metaphor in a pejorative sense. Rather, our ambition was to signal our conviction that law is, in the sense intended by Ernst Cassirer ( Cassirer, E., The Myth of the State (New Haven, Conn.: Yale University Press, 1946) at 47)Google Scholar, a “genuine myth”: it represents an interconnected set of beliefs assumed to be true. The underlying project of this paper is to identify those aspects of this mythology that judges reveal in relating their conceptions of their roles and their perceptions of litigants.

8. For further development of the analogy between the Wizard and the Small Claims Court judge, see McGuire, S. C. & Macdonald, R. A., “Can Judges Be Legal Pluralists” (Paper delivered at the Law and Society Seminar, Green College, U.B.C., 12 January 1995) [unpublished].Google Scholar

9. For a critical review of the literature and assessment of the claim, see Macdonald, R. A., Prospects for Civil Justice (Toronto: Ontario Law Reform Commission, 1995).Google Scholar

10. See McGuire, S. C., Phelan, S. & Macdonald, R. A., “The Use and Non-Use of the Montreal Small Claims Court” (Paper presented to the Annual Meeting of the Canadian Law and Society Association, Ottawa, 8 June 1993) [unpublished].Google Scholar

11. See McGuire, S. C. & Macdonald, R. A., “Of Magic Wands, Presto Justice and Other Illusions” (Paper presented to the Annual Meeting of the American Law and Society Association, Phoenix, 17 June 1994) [unpublished].Google Scholar A revised version of this paper will be published in the Osgoode Hall Law Journal under the title “Small Claims Court Cant”.

12. S. C. McGuire & R. A. Macdonald, “Tales of Wows and Woes by the Masters and the Muddled” [forthcoming, 1996].

13. S. C. McGuire & R. A. Macdonald, “For Whom the Court Toils” [forthcoming 1996].

14. See generally Griffiths, J., “What Is Legal Pluralism?” (1986) 24 Journal of Legal Pluralism and Unofficial Law 1 CrossRefGoogle Scholar; Merry, S. E., “Legal Pluralism” (1988) 22 Law and Society Review 869.CrossRefGoogle Scholar A positivist critique of this version of legal pluralism is to be found in Tamanaha, B., “The Folly of the ‘Social Scientific’ Concept of Legal Pluralism” (1993) 20 Journal of Law and Society 192.CrossRefGoogle Scholar

15. We develop this non- “Social Scientific” Concept of Legal Pluralism in McGuire, S. C. & Macdonald, R. A., “Critical Legal Pluralism” (Paper delivered to the Conference “Théories et émergence du droit”, Montreal, 21 October 1995) [unpublished].Google Scholar

16. See McGuire, S. C. & Macdonald, R. A., “Access to Justice, Legal Pluralism and Internormativity” (Paper presented to à Faculty Workshop, Faculty of Law, U.B.C., 13 January 1995) [unpublished].Google Scholar

17. See generally Ferland, D., “Du recouvrement des petites créances” in Ferland, D. & Emery, B., eds., Précis de procédure civile du Québec, t. 2 (Cowansville: Y von Biais, 1993) at 613.Google Scholar For a history of 19th- and 20th-century Small Claims Court initiatives in Quebec see Cliche, R., “Les petites créances” (1973) 14 Cahiers de Droit 291.CrossRefGoogle Scholar

18. See Courts of Justice Act, R.S.Q. c. T–16; An Act respecting the collection of certain debts, R.S.Q. c. R 2.2; Code of Civil Procedure, R.S.Q. c. C-25, arts. 34, 953 [hereinafter C.C.P.].

19. Judges sitting in the Small Claims Court normally hear about 15 cases per day, a considerable burden, given the regular workload in the Quebec Court—Civil Division of about three cases per day.

20. The entire premise of Book VIII of the Code of Civil Procedure is that the Small Claims Court judges will apply the substantive law of the Civil Code and statutes in the same manner as ordinary courts. See generally Ferland, supra note 17. Article 973 C.C.P. renders this thought explicit by providing that “[t]he judge must follow the rules of evidence …”

21. This, of course, is the stock formula found in private arbitration agreements that permits arbitrators to depart from substantive rules of enacted law. See generally Brierley, J. E. C., “‘Equity and Good Conscience’ and Amiable Composition in Canadian Arbitration Law” (1991) 19 Canadian Business Law Journal 461.Google Scholar This formula is also found in the legislative mandates of some Small Claims Courts. See Courts of Justice Act, R.S.O. 1990, c. C–43, s. 25: “The Small Claims Court… may make such order as is considered just and agreeable to good conscience.” See, further, Adams, G. W., “The Small Claims Court and the Adversary Process: More Problems of Function and Forum” (1973) 51 Canadian Bar Review 583.Google Scholar

22. Quebec, National Assembly, Journal des Débats (18 December 1970) at 2481–2482.Google Scholar See also Laroche, G., Guide des petites créances (Quebec: Modulo, 1983) at 8.Google Scholar See also Guide to the Small Claims Court (Montreal: Ministère de la justice du Québec and Association du jeune barreau de Montréal, 1994).

23. Arts 977, 998 C.C.P.

24. Art. 973 C.C.P.

25. Art. 975 C.C.P. In Montreal, at the time of the study, the court also offered a free mediation service. See Coulombe, C., La Médiation aux petites créances (Montreal: Ministère de la Justice, Direction générale des services judiciaires, 1989).Google Scholar

26. Desjardins, See A. & Mercier, Y., “Le Recouvrement des petites créances au Québec” (1985) 9 Provincial Judges Journal 19.Google Scholar

27. C.C.P., art. 980 provides that judgments are “final and without appeal.” In addition, article 997 C.C.P. also purports to exclude (subject to constitutional review under section 96 of the Constitution Act, 1867) judicial review of Small Claims Court judgments. The only recourse against a Small Claims Court judgment is a motion for “revocation of judgment” (Arts. 986–988 C.C.P.). As for procedures in execution, see Arts 993–995 C.C.P.

28. Art. 976 C.C.P. Judges are also to “summarily instruct” the parties on the rules of evidence (C.C.P., art. 973).

29. Art. 955 C.C.P. There are, however, two exceptions to this general rule. Lawyers may appear in a representative capacity where: (a) they are full-time salaried employees of an excluded corporation (Art. 956 C.C.P.), or (b) a complex point of law is at issue (Art. 977.1 C.C.P.). Some legal framing of the case occurs, however, where parties avail themselves of the services of “technicians” employed by the office of the Court Clerk. These “technicians” are mandated to assist lay-plaintiffs in preparing their claims for presentation.

30. Art. 953(d) C.C.P. Nevertheless, unregistered or nominal partnerships and unincorporated businesses may bring proceedings in the Court. Moreover, since 1993, corporations may be plaintiffs where “at all times during the 12-month period preceding the application, not more than five persons bound to it by contract of employment were under its direction or control” (Art. 953(3) C.C.P.). Finally, corporations and partnerships may also be plaintiffs in cases where the debtor intends to contest an action brought in the Court of Quebec—Civil Division and requests that it be transferred to the Small Claims Court for adjudication (Art. 983 C.C.P.).

31. See Statistics Canada, Profile of Census Divisions and Subdivisions in Quebec, Part A (Ottawa: Supply and Services Canada, 1992) at 201, 307.Google Scholar

32. The survey instrument is reproduced in Appendix A. In the body of the text, the questions have been translated into English. The interview protocol is described, infra para. 11.

33. See McGuire, Phelan & Macdonald, supra note 10.

34. At the time this research was being undertaken, the judiciary in Quebec was under attack on a number of grounds. This led to initial scepticism about the project and a reluctance to participate in the survey. Based on previous experience with judicial interviews, it was felt that the most important objective was to obtain the judges' consent to be interviewed. While the precise formulation of the questionnaire was of significance to judges, this prior experience suggested that, once the interview began, judges would not be strictly tied to the questions as drafted and would talk freely about their experiences. This proved to be the case. Moreover, the only substantive change to the questionnaire was the addition of a preamble explaining the purposes of the research project. The recasting of the instrument from 14 short questions into seven more developed questions in no way changed the substance of the inquiry, but did allow the judges to understand more clearly the point of each question.

35. We adopted a model of semi-structured interviews given its recommended use in research with community élites. Bernard, See H. Russell, Research Methods in Anthropology, 2d ed. (Thousand Oaks, Ca: Sage, 1994) at 15–17 and 208–36.Google Scholar Though we adopted a number of strategies for semi-structured interviews suggested by Bernard, we felt that judges would be more reluctant to discuss freely their views if we tape recorded the interviews. In addition, the sensitive nature of the information they shared with us and their small numbers led us to respect the anonymity of individual judges by translating and paraphrasing their answers. We acknowledge that this prevents us from later doing a linguistic analysis of the responses we received, but our hope at this stage of the project was to establish an initial rapport of confidence with the Small Claims Court bench. For similar reasons, throughout this paper we employ the compound pronoun “she/he” when referring to the responses of particular judges. Only one of the 14 judges participating in our study was female; in all, two of the 36 justices of the Quebec Court—Civil Division serving downtown Montreal were female, excluding the Chief Judge. All judges interviewed were white, francophone and middle to upper-middle aged. We hope, in a further study in this project, to examine the sociodemographic characteristics of Small Claims Court judges and to obtain “for the record” quotations from our respondants.

36. Compare the findings of Conley & O'Barr, supra note 2 as to the effect that different judicial perceptions of role may have on their willingness to actively manage a dispute-resolution process.

37. See, for a comparison of adversarial and inquisitorial systems, Adams, G. W., “The Small Claims Court and the Adversary Process: More Problems of Function and Form” (1973) 51 Canadian Bar Review 583.Google Scholar On the mediation role of Small Claims Court judges, see Finkle, P. & Cohen, D., “Consumer Redress Through Alternative Dispute Resolution and Small Claims Court: Theory and Practice” (1993) 13 Windsor Yearbook of Access to Justice 81.Google Scholar On judicially-induced settlements, see Galanter, M. & Cahill, M., “‘Most Cases Settle’ Judicial Promotion and Regulation of Settlements” (1994) 46 Stanford Law Review 1339.CrossRefGoogle Scholar

38. The Conseil is a judicial supervisory and disciplinary body which is empowered to hear complaints about judicial conduct on or off the bench. During the period of this study, approximately 50 per cent of the complaints received by the Conseil concerned determinations rendered in the Small Claims Court.

39. This judicial intuition tracks the findings of Tyler, Tom in Why People Obey The Law (New Haven, Conn.: Yale University Press, 1990).Google Scholar

40. These responses can be contrasted with accounts of the role of judges in France and suggest the dominant influence of adversarial adjudication in the Common law model. See Ngwasir, C. N., “The Role of the Judge in French Civil Proceedings” (1990) 9 Civil Justice Quarterly 167.Google Scholar

41. This attitude is consistent with their status as regular judges of the Court of Quebec—Civil Division, and with conventional wisdom that “[t]he judge's duty is in fact to adjudicate according to objective law for which he cannot substitute his own opinion … The judge cannot create the norm. Even when the accepted norm is out of step with society, he can only try to reconcile the law with the current legal and social climate … At the same time a position of impartiality is imposed upon the judge; this involves negation of any partisan position, detachment from every individual interest and a guarantee of objectivity.” See United Nations Social Defence Research Institute Publication Number 24, The Role of the Judge in Contemporary Society (Rome: Fratelli Palombi, 1984) at 19.Google Scholar

42. A comparison might be made here to Gilligan's thesis that there are different paradigms of moral reasoning, though their relative merits are skewed when one is taken as exemplary. See Gilligan, C., In A Different Voice (Cambridge, Mass.: Harvard University Press, 1993).Google Scholar Gilligan's insight was adapted by Conley and O'Barr, who argued that litigants use at least two forms of reasoning in the Small Claims Court, one being a “rule-approach,” the other being a “relational-approach.” See Conley & O'Barr, supra note 2.

43. Factors such as the nature of the judge's status within the court, personal experience, ability to empathize with the situation of the parties, the judge's socio-economic position, ties to neighbourhood, family, cultural association and so on, are important influences. For a discussion of the significance of cultural-historical and interpersonal relations in acts of judgment, see Merry, S. E., “The Culture of Judging” (1990) 90 Columbia Law Review 2311 CrossRefGoogle Scholar, a review of Rosen's, L., The Anthropology of Justice: Law as Culture in Islamic Society (Cambridge: Cambridge University Press, 1989)Google Scholar; Merry, S. E., “Disputing Without Culture” (1987) 100 Harvard Law Review 1057 CrossRefGoogle Scholar, a review of Sander, F. et al. , Dispute Resolution (Boston: Little Brown, 1985).Google Scholar

44. This mediation might be understood as the judicial construction of a believable “story” whose internal consistency must adhere not only to rules of evidence but also to “common sense” beliefs. For a discussion of the phenomenon in the criminal courtroom, see Bennett, W. & Feldman, M., Reconstructing Reality in the Courtroom (New Brunswick, N.J.: Rutgers University Press, 1981).Google Scholar

45. Hence, a purely procedural conception of inequality and its remedies dominates in Small Claims Court proceedings. On the limits of access to justice reforms, see Macdonald, R. A., “Theses on Access to Justice” (1992) 7:2 Canadian Journal of Law and Society 23 CrossRefGoogle Scholar; Trubek, D., “Critical Moments in Access to Justice Theory: The Quest for the Empowered Self” in Hutchinson, A. C., ed., Access to Civil Justice (Toronto: Carswell, 1990) 107 Google Scholar; and Macdonald, R. A., “Access to Justice and Law Reform” (1990) 10 Windsor Yearbook of Access to Justice 287.Google Scholar

46. For a review of different models by which judicial perceptions might be evaluated, see Macdonald, R. A., “Recognizing and Legitimating Aboriginal Conceptions of Justice: Implications for a Reconstruction of Non-Aboriginal Legal Systems in Canada” in Aboriginal Peoples and the Justice System (Ottawa: Royal Commission on Aboriginal Peoples, 1993) at 232.Google Scholar

47. This observation is consistent with Martha Minow's thesis that legal evaluations tend to be made according to an unspoken norm that is accepted as natural and inevitable. See Minow, M., Making All the Difference (Ithaca: Cornell University Press, 1990).Google Scholar

48. There is some empirical evidence that parties perceive the process as fairer when they have a good measure of control over the presentation of proofs and arguments. See Thibault, J. & Walker, L., Procedural Justice: A Psychological Analysis (Hillsdale, N.J.: Lawrence Erlbaum, 1975).Google Scholar

49. These judicial reactions suggest the importance of what Duclos calls a “concerted effort to locate, learn and live difference” as an aid to coming to terms with one's own ethnocentricity. See Duclos, N., “Lessons of Difference: Feminist Theory on Cultural Diversity” (1990) 38 Buffalo Law Review 243.Google Scholar

50. A capacity to recognize and reconcile competing normative visions may be a quality fundamental to the judicial function and one that merits nurturing in the judiciary. See Webber, Adjudication of Contested Social Values, supra note 4.

51. Some suggest that the focus on remedies in civil litigation flows from the idea that settling disputes between private parties exhausts the court's role; private litigation has no purpose other than to satisfy litigant demand for remedies. See Fitzpatrick, P., “Law and Societies” (1984) 22 Osgoode Hall Law Journal 115.Google Scholar

52. On the struggle between those who would have the court function as a site of micro-conflicts and those who would hold it to resolving discrete, interpersonal conflict, see Steele, E., “The Historical Context of Small Claims Courts” (1981) 2 American Bar Foundation Research Journal 293.Google Scholar

53. Of course, some scholars have persuasively argued that damages may serve as a means of satisfying the demands of corrective justice. See Perry, S., “Loss, Agency, and Responsibility for Outcomes: Three Conceptions of Corrective Justice” in Cooper-Stephenson, K. & Gibson, E., eds., Tort Theory (North York: Captus, 1993) at 24.Google Scholar Others also recognize that corrective justice neither exhausts the scope of morality nor disallow the coexistence of competing moral frameworks. See Stone, C. D., Earth and Other Ethics: The Case for Moral Pluralism (New York: Harper and Row, 1987).Google Scholar

54. This example is not a true hypothetical since it was taken from a situation recounted to members of the Groupe de travail sur l'accessibilité à la justice, a Task Force into Access to Civil Justice in Quebec chaired by R. A. Macdonald between 1989 and 1991. For a discussion of theoretical issues raised by such a hypothetical, see Duryea, M. et al. , Conflict and Culture: The Report of the Multiculturalism and Dispute Resolution Project (Victoria: Institute for Dispute Resolution, 1994).Google Scholar

55. For a discussion of the problems attendant on legal recognition (construction) of cultural norms and the perils of essentialism, see generally Greenhouse, C., “Watch for the Woodchopper, Wait For the Fire: Hayden on Yugoslav Workers' Courts” (1994) 19 Law and Social Inquiry 223 Google Scholar; Hayden, R., “Which Woodchips Become Shrapnel: The Reification of ‘Culture’ by Law” (1994) 19 Law and Social Inquiry 243 Google Scholar; Magnarella, P., “Justice in a Culturally Pluralistic Society: The Cultural Defence on Trial” (1991) 19 Journal of Ethnic Studies 65 Google Scholar; Volpp, L., “(Mis)Identifying Culture: Asian Women and the ‘Cultural Defence’” (1994) 17 Harvard Women's Law Journal 57.Google Scholar

56. See “Sentence for Sodomizing Girl Appealed: Judge's Remark that Child's Stepfather ‘Spared Her Virginity’ Causes Uproar” The [Toronto] Globe and Mail (15 January 1994) A3; Grada, A., “Sodomie et interculturalisme” La Presse (18 January 1994) B2 Google Scholar; Boisvert, Y., “L'affaire du juge Raymonde Verreault embarrasse le Barreau” La Presse (19 January 1994) A11.Google Scholar

57. On the difficulties of attempting to translate “cultural” claims, see Turpel, M. E., “Aboriginal Peoples and The Canadian Charter: Interpretive Monopolies, Cultural Differences” (1989–1990) 6 Canadian Human Rights Yearbook 3 Google Scholar; Panikee, R., “Is the Notion of Human Rights A Western Concept?” (1982) 120 Diogenes 75 Google Scholar; Clifford, J., “Identity in Mashpee” in Clifford, J., The Predicament of Culture (Cambridge, Mass.: Harvard University Press, 1988) at 277.Google Scholar

58. See, on this question of cross-system accomodation, Hilaire, J., La Vie du droit: Coutumes et droit écrit (Paris: Presses universitaires de France, 1994).Google Scholar

59. For a review of the categorization problem as applied across different cultural communities, see the two essays by Webber, supra note 4.

60. See An Act to Amend the Code of Civil Procedure with Respect to the Recovery of Small Claims, S.Q. 1992, c. 63, ss. 1, 2.

61. The image of wise counsellor and its effect on the possible conception of one's role are explored, in relation to the legal professions and to legal education, by Macdonald, R. A., “Images du Notariat et Imagination du Notaire” (1994) 1 Cours de perfectionnement du notariat 1 Google Scholar; and Belley, J.-G., “Paradigmes et innovation: les professeurs de droit et l'avenir des professions juridiques” (1994) 9:2 Canadian Journal of Law and Society 163 CrossRefGoogle Scholar; Belley, J.-G., “Les tendences actuelles et futures de la profession” (Paper presented to the Comité sur l'avenir professionnel des jeunes avocats et avocates, 28 May 1994) [unpublished]Google Scholar; Belley, J.-G., “Maître et apprenti dans le stage obligatoire, un retour vers le futur?” (Paper presented to the Journée de reflexion du Jeune Notariat, 28 February 1995) [unpublished].Google Scholar