Access to Justice: Action Committee Looks at Problems, Innovative Solutions

La version française suit.

This article originally appeared on The Lawyer’s Daily on June 20, 2018. It is the eighth article in The Honourable Thomas Cromwell’s exclusive Lawyer’s Daily column dedicated to access to civil and family justice.

Access to justice leaders from coast to coast to coast met for two and one-half days in Ottawa in April at the annual summit of the Action Committee on Access to Justice in Civil and Family Matters. These people know better than most how big a challenge we face in improving access to justice. But that did not temper the enthusiasm for what has been accomplished or weaken the resolve to keep working for change.

Delegates representing the broad coalition that makes up the action committee — deputy ministers, the judiciary, provincial and territorial access to justice groups, legal aid plans, pro bono groups, public legal education providers, the bar, notaries, ADR professionals, administrative tribunals and the public — heard of the success of the action committee’s public engagement initiative and its innovation tool box project. Thousands of people engaged with the need for an effective civil and family justice system and people across Canada active in justice innovation developed communities of practice and other tools to help them with their important work. Sarah McCoubrey and Meredith Brown, access to justice strategists with Calibrate, designed and executed both projects, which were funded by the Law Foundation of Ontario.

The group also was given an update on progress on the action committee’s Justice Development Goals. Sixty-eight new initiatives to help people address everyday legal problems; 64 new initiatives designed to better meet legal needs, including eight new pro bono services; 50 projects aimed at improving family justice. And the list goes on.

One of the challenges facing reformers is the dearth of empirical evidence about how our civil and family justice system works and how to know if our reforms are having the intended effect. The improvement in justice metrics is a critical element of any long-term plan for systemic change. People at the summit learned of a project spearheaded by Jerry McHale which is bringing together a strong coalition to work on this topic. Bringing to together researchers at the faculties of law at the University of Victoria, University of Saskatchewan, York University and University of Montreal, the initiative’s goal is to develop priorities for justice system metrics and to build capacity for data gathering and analysis. And feeding into that effort was the work at the summit to begin to develop indicators; that is, things we can measure, in relation to each of the Justice Development Goals.

A full day of the summit was devoted to the issue of Indigenous child welfare. Organized by Scott Robertson of the Indigenous Bar Association and Mark Benton of the Legal Services Society of B.C., distinguished speakers from across Canada led us through an intense and impactful overview of the woeful state of services for Indigenous children and families in many parts of our country. While not usually discussed as an access to justice issue, the presentations at the summit showed that it certainly is. The child welfare system almost everywhere in Canada is not meeting the needs of children, families or communities. The speakers at the summit helped participants not only to better understand the problem, but also to hear about promising solutions. Better funding, more community leadership, more culturally appropriate options and a wider focus on the whole family were some of the aspects discussed.

To cap the summit, Beverley McLachlin, recently retired as chief justice of Canada, confirmed that she has agreed to assume the chair of the action committee this autumn. Her successor as chief justice, Richard Wagner, confirmed that he has accepted to take on the role of honourary chair of the action committee, following in his predecessor’s footsteps. Stay tuned!

All of us concerned about access to justice will not be satisfied until there is a great deal more improvement. But this gathering of leaders demonstrated that there is a growing commitment to make the necessary change and an impressive array of innovative projects showing that making that change is possible.

The Honourable Thomas Cromwell served 19 years as an appellate judge and chairs the Chief Justice’s Action Committee on Access to Justice in Civil and Family Matters. He retired from the Supreme Court of Canada in September of 2016 and is now senior counsel to the national litigation practice at Borden Ladner Gervais.

Accès à la justice : le Comité d’action aborde les problèmes à la recherche de solutions innovatrices

En avril, des chefs de file sur les questions d’accès à la justice, venus des quatre coins du pays, se sont réunis pendant deux jours et demi à Ottawa, pour participer au sommet annuel du Comité d’action sur l’accès à la justice en matière civile et familiale. Ce sont des gens particulièrement bien placés pour savoir à quel point il peut être difficile d’améliorer l’accès à la justice. Mais cela ne les a pas empêchés de se réjouir des progrès accomplis, et ils restent déterminés à amener de plus amples changements par leur travail assidu.

Les délégués représentant la vaste coalition des parties membres du Comité d’action – des sous-ministres, des juges, des représentants de groupes provinciaux et territoriaux d’accès à la justice, de régimes d’aide juridique, des professionnels qui offrent bénévolement des services juridiques, des fournisseurs de services d’éducation juridique du public, des avocats, des notaires, des professionnels du règlement extrajudiciaire des différends (RED), ainsi que des représentants de tribunaux administratifs et du grand public –, ont été informés du succès que le Comité d’action a obtenu avec son initiative de consultation publique et son projet de boîte à outils de l’innovation. Des milliers de personnes consultées ont confirmé la nécessité d’assurer un système efficace de justice civile et familiale, et des gens de tout le Canada agissant pour l’innovation en matière de justice ont quant à eux mis en place des communautés de pratique et d’autres outils pour faciliter leur important travail. Sarah McCoubrey et Meredith Brown, stratèges sur les questions d’accès à la justice au sein de l’organisation Calibrate, ont conçu et mis à exécution les deux projets, qui ont été financés par la Fondation du droit de l’Ontario.

Le groupe a aussi été mis au courant des progrès qu’a réalisés le Comité d’action par rapport à ses Objectifs de développement en matière de justice : 68 nouvelles initiatives pour aider les gens à résoudre des problèmes juridiques courants; 64 nouvelles initiatives conçues pour mieux répondre aux besoins juridiques, dont huit nouveaux services juridiques offerts bénévolement par des professionnels; 50 projets visant à améliorer le système de justice familiale; et la liste se poursuit.

Une des difficultés auxquelles les réformateurs doivent faire face tient à la pénurie de données empiriques sur la façon dont fonctionne notre système de justice civile et familiale, et sur ce que nous pouvons faire pour savoir si nos réformes donnent les effets escomptés. Tout plan pour la réalisation d’un changement systémique à long terme doit nécessairement passer par l’amélioration des paramètres de mesure de ces données. Les participants au sommet ont été informés d’un projet mené par Jerry McHale, qui rassemble une solide coalition œuvrant en ce sens, formée de chercheurs des facultés de droit de l’Université de Victoria, de l’Université de la Saskatchewan, de l’Université York et de l’Université de Montréal. L’objectif du projet consiste à déterminer les priorités de mesure pour les données relatives au système de justice, et de renforcer la capacité de collecte et d’analyse de ces données. Les participants au sommet y ont contribué en entamant l’élaboration d’indicateurs – c’est-à-dire des éléments que nous pouvons mesurer par rapport à chacun des Objectifs de développement en matière de justice.

Une journée entière du sommet a été consacrée à la question des services d’aide aux enfants autochtones. Cette journée était organisée par Scott Robertson de l’Association du Barreau autochtone et de Mark Benton de la Legal Services Society de Colombie-Britannique, et d’éminents conférenciers d’un peu partout au Canada nous y ont donné un aperçu criant et saisissant de l’état déplorable dans lequel se trouvent les services destinés aux enfants et familles autochtones, à de nombreux endroits au pays. Bien que ce ne soit habituellement pas traité comme un enjeu d’accès à la justice, les exposés entendus au sommet ont démontré que c’en était bel et bien un. Presque partout au Canada, le système de protection de l’enfance ne répond aux besoins ni des enfants, ni des familles, ni des collectivités concernées. Les conférenciers du sommet ont permis aux participants non seulement de mieux comprendre la problématique, mais aussi de prendre connaissance de solutions prometteuses. Parmi les aspects traités, il y avait notamment l’amélioration du financement, le renforcement du leadership communautaire, l’élaboration de possibilités mieux adaptées à la réalité culturelle, et l’élargissement du cadre d’intervention afin d’y inclure toute la famille.

Pour couronner le tout, Beverley McLachlin, récemment retraitée de ses fonctions de juge en chef du Canada, a confirmé qu’elle avait accepté d’assumer la présidence du Comité d’action à partir de cet automne. Son successeur à titre de juge en chef, Richard Wagner, a quant à lui confirmé qu’il suivrait ses traces en acceptant la présidence honoraire. Ce sera donc à suivre!

Nous tous, qui nous préoccupons d’accès à la justice, continuerons de veiller au grain tant et aussi longtemps que les choses ne se seront pas nettement améliorées. Entre-temps, cette rencontre de chefs de file en la matière a montré que de plus en plus de parties s’engagent à effectuer les changements nécessaires, et la gamme impressionnante de projets innovateurs qui y ont été présentés tend à démontrer que ces changements sont tout à fait possibles.

L’honorable Thomas Cromwell a été juge d’appel pendant 19 ans et siège au Comité d’action sur l’accès à la justice en matière civile et familiale établi à la demande de la juge en chef. Il a pris sa retraite de la Cour suprême du Canada en septembre 2016 et agit désormais comme avocat-conseil principal dans le domaine du contentieux à l’échelle nationale, au sein du cabinet Borden Ladner Gervais.

Legal Secondary Consultation (LSC) Pilot Project Final Report

Legal secondary consultation (LSC) is an innovative and promising legal aid delivery model in which a legal service professional provides one-on-one advice to a service provider in a social services agency or a community organization. This assists the provider to resolve problems for clients seeking help. The final report by CFCJ senior research fellow, Dr. Ab Currie on a legal secondary consultation pilot project with three community legal clinics in Southwest Ontario is now available on the CFCJ website. Read “Legal Secondary Consultation: How Legal Aid Can Support Communities and Expand Access to Justice” here.

Access to Justice: Current Crop of Law Students Committed, Enthusiastic

This article originally appeared on The Lawyer’s Daily on April 18, 2018. It is the seventh article in The Honourable Thomas Cromwell’s exclusive Lawyer’s Daily column dedicated to access to civil and family justice.

It is easy to get discouraged by the slow pace of progress on improving access to justice. But a constant source of encouragement is the enthusiasm and commitment of the current generation of law students.

Everywhere I encounter today’s law student, I see concern about the injustice of our current poor level of access to justice, interest in what can be done to improve it, and commitment to be part of the change to bring about that improvement. The interest and enthusiasm of students for work in legal clinics and with Pro Bono Students Canada and other access-oriented activities are some of the tangible evidence of their concern, interest and commitment.

I recently had the privilege and pleasure of being part of another manifestation of law students’ engagement with access to justice. The Society of Law Students at Thompson Rivers University organized a two-day conference on access to justice. The program can be found here.

In addition to presentations by students and faculty, the students hosted a number of special guests, including the Honourable Robert Bauman, chief justice of British Columbia, the Honourable Len Marchand, a justice of the Supreme Court of British Columbia and the Honourable David Eby, minister of justice and attorney general of British Columbia. The organization was entirely student-directed and participation throughout the student body was significant.

I spoke with one of the co-chairs of the conference, Dave Barroqueiro, who is a second-year student. Dave’s take on access to justice and the profession’s role in improving it is bang on and shows how the next generation of lawyers understands the problem and wants to help to solve it. I asked him what lessons he drew from his work on the access to justice problem.

He started by speaking of the need for culture change: “The culture of law and of lawyers must change, and society isn’t willing to wait any longer. The legal industry itself, the profession’s self-insulation, and our paralyzing risk aversion, are undoubtedly major contributors to the access to justice crisis in Canada.”

He also recognized the role that lawyers and legal profession should and must play in improving access to justice: “ … the key to unlocking the solution to the access to justice crisis rests in the hands of legal professionals themselves — we simply need to be willing to adjust to the rapidly changing needs and demands of contemporary, digital-age clients.”

He stressed what he believes is the important part technology can have in bringing about the necessary changes: “Increasing the agility of lawyers and the efficiency of the delivery of legal services ought to be the principal focuses of the legal profession going forward.”

Finally, he recognized what many commentators have stressed: The necessity of responding better to the needs of the public seeking legal services. As he put it, “To think that we, even as a self-regulating profession, can overwhelm consumer-driven market forces for much longer is a delusion. The future practice of law will depend on an active, informed understanding of client needs.”

My impression is that Barroqueiro’s views are not unique. I believe they are shared by a lot of law students. Those in positions of power and influence should encourage and support this kind of thinking in the next generation of lawyers and at least make a start on the important work that they are keen to take up as they progress in their legal careers.

We are leaving them a big access to justice challenge. But I believe that they are up to it.

The Honourable Thomas Cromwell served 19 years as an appellate judge and chairs the Chief Justice’s Action Committee on Access to Justice in Civil and Family Matters. He retired from the Supreme Court of Canada in September of 2016 and is now senior counsel to the national litigation practice at Borden Ladner Gervais.

Access to Civil Justice in Canada Has Been In a Steady State, But a Bit Low

Since 2009 the World Justice Project (WJP) has gathered data measuring the rule of law in countries around the world. One of the eight components of the WJP Rule of Law Index is Access to Civil Justice.[1] Canada’s overall score on the access to civil justice dimension was 0.72 in the 2016 Rule of Law index.[2] This put Canada in 19th place globally and 12th among 24 countries in the same region. In terms of overall Rule of Law scores, Canada ranked 12th among 113 countries.

Globally, the Netherlands, Germany and Norway received the highest scores for access to civil justice at 0.88, 0.86 and 0.85 respectively. The United Kingdom ranked 16thwith a score of 0.75 and the United States ranked 28th with an access to civil justice score of 0.65. Figure 1 shows Canada’s overall score for access to civil justice from 2010 to 2017.[3]

The recently published 2017 WJP Rule of Law Index reveals a similar trend. For the 2017 Index, Canada’s overall score on the access to civil justice dimension was 0.72 which placed Canada 20th among 113 countries. Regionally, Canada once again ranked 12th among 24 countries. The top ranked countries for access to civil justice were the Netherlands with a score of 0.87, Denmark with a score of 0.86 and Germany with a score of 0.85. For the access to civil justice Rule of Law measure, the United Kingdom’s global rank for 2017 was 14 out of 113 countries with a score of 0.75  and the United States ranked 26th, with a score of 0.67.

Figure 1: Access to Civil Justice Scores for Canada, World Justice Project, 2010 to 2017

Access to civil justice in Canada has been in a steady state over the period measured by the WJP. The level of access to justice in Canada is not poor by global standards. However, according to the measures used in the WJP, scores on access to civil justice have been consistently lower than many other high income countries.

Among the six components of the access to civil justice index[4] the two that have been consistently low over the years have been accessibility and affordability and the absence of undue delays.  Figure 2 shows Canada’s scores on these two components over the 2010 to 2017 time period.

Figure 2: Canada Scores for Accessibility and Absence of Unreasonable Delay, World Justice Project, 2010 to 2017

Compared with Canada’s overall access to justice score of 0.72 in the 2016 survey and 0.72 in 2017, the score for accessibility and affordability and for absence of undue delays were considerably lower, 0.56 and 0.53 respectively in 2016 and 0.55 and 0.51 respectively in 2017.

By way of comparison with Canada, the scores for accessibility and affordability and for undue delay over the past two years for the three countries ranked highest on access to civil justice are all higher than the Canadian indicators.


Table 1: Scores for Accessibility and Absence of Unreasonable Delay, World Justice Project, Five Countries, 2016 and 2017

Why is the level of access to civil justice in Canada consistently and markedly lower than these and other high income countries? Why is Canada apparently unable to break out of this pattern?  Reducing something very complex and multifaceted such as access to justice to a set of numbers might be greeted with some discomfort among readers. Further, distilling the state of access to civil justice down to a single set of quantitative measures for a federal state with considerable variations of all sorts among the 13 Canadian jurisdictions may well increase the skepticism. However, there are always trade-offs. The comparable measurement and consistent data collection over a decade that has been achieved by the WJP has considerable value for comparative study among roughly similar high income countries.

Why do the Netherlands, Denmark, Germany, Norway and other countries consistently outperform Canada on scales of access to civil justice, in particular on measures of accessibility and affordability and fewer delays? The differences might be due in part to some of the inquisitorial elements in some civil justice systems, or by the more widespread use of legal expenses insurance, by greater accessibility of legal aid or, possibly, by differences in legal consciousness and legal capability among the public in some countries compared with Canada. Comparisons involving different systems of justice must always be approached with great care. Direct transfers of ideas and structures are rarely workable. However, we have an access to justice gap to fill. Knowing what works in other countries could provide useful knowledge about approaches worth considering and innovations that might be applicable with appropriate modifications in this country. As such, the WJP offers a valuable basis for comparative study and learnings on ways to improve access to justice.

 


[1] The eight dimensions of rule of law measured in the WJP Index are: constraints on government powers, absence of corruption, open government, fundamental rights, order and security, regulatory enforcement, civil justice and criminal justice.  https://worldjusticeproject.org/our-work/wjp-rule-law-index/wjp-rule-law-index-2016/factors-rule-law.

[2] The scale is from 0.0 to 1.0, with scores near 0.0 indicating low levels of A2J.

[3] Because of changes in the indicators after 2009 the measures are not compatible with data in the later surveys and are omitted from the graphs.

[4] The six indicators for civil justice with the Canada scores for 2016 indicated in brackets are: accessibility and affordability (0.56), absence of discrimination (0.65), absence of corruption (0.88), no improper government influence (0.89), no unnecessary delay (0.53), effective enforcement (0.73) and impartial, accessible and effective ADR’s (0.82).

New Research on the Suitability and Cost of Family Law Dispute Resolution Processes

There is perhaps no area of civil law where the emotional and far-reaching effects of disputes weigh as heavily on those experiencing them as family law. There is now wide-scale recognition from within the justice community[1] of the need for reforms in family law that reflect progressive values, which offer a continuum of adversarial and non-adversarial dispute resolution methods, and which contemplate modern and innovative service delivery processes. However, there remain significant gaps in the research available on the costs, overall satisfaction with, and benefits and limitations of the dispute resolution methods commonly available to address family law problems. Understanding what works, for whom, in what ways, and at what costs will help to shape policies that will serve the needs and interests of those who experience family law problems and whose lives are significantly impacted by the outcomes of family disputes.

The Canadian Research Institute for Law and the Family (CRILF), in partnership with the Canadian Forum on Civil Justice (CFCJ), and with support from the Alberta Law Foundation and the CFCJ’s SSHRC-funded Cost of Justice research grant[2], recently conducted a study to measure the cost implications, effectiveness and suitability of four dispute resolution methods for family law disputes: litigation, collaborative processes, mediation and arbitration.

The primary objectives of this study were to:

  • Aggregate cost data on the four dispute resolution methods evaluated;
  • Gain insight on experiences with, and perceptions of processes to resolve different family problems;
  • Apply a modified social return on investment (SROI) analysis that offers a common set of parameters around which to compare the financial impacts and social value of each method of dispute resolution relative to the seriousness of the family law problem; and
  • Identify information that could prove useful for shaping programs, informing policies or services, and driving thinking about opportunities for reducing costs and improving overall experiences with dispute resolution in the family law context.

The study involved an online survey of lawyers practicing in family law in order to gather information about their use of, and views on collaborative processes, litigation, mediation and arbitration.[3] A total of 166 lawyers, practicing in Alberta, British Columbia, Ontario and Nova Scotia completed the survey. The survey, which consisted primarily of closed-ended and rating scale questions, was organized by dispute resolution process, with similarly worded questions included in each section. Questions related to the cost of services were open-ended and respondents were also asked a series of demographic questions about age, gender, location and year of call to the Bar.

The survey resulted in a number of interesting findings and revealed high levels of consensus among lawyers as to their preferences for using certain methods of dispute resolution over others, based on various considerations including: the best interests of children, threats to safety, reducing potential for conflict. As for specific questions around cost, lawyers who participated in the survey offered a range of billing amounts for their professional services (including fees and other related services). For persons who experience family law problems, as well as for researchers, policy makers and other justice stakeholders, these cost estimates offer useful data points for better understanding and informing discussions around the costs, value, and benefits associated with using collaborative processes, arbitration, mediation and litigation to resolve family law problems.

In addition to a comparatively lower cost range for resolving disputes – from $1,000 to $100,000 — 94.0% of family lawyers agreed that the results that they achieve through collaborative processes are in the interests of the client and 98.9% agreed that the results are in the interests of the client’s children. Conversely, 36.1% agreed that collaborative processes are suited for high-conflict family law disputes. By contrast, 87.1% of lawyers disagreed that litigation was cost-effective, with the cost range for resolving disputes through litigation reported between $2,000 and $625,000. Another striking statistic in the use of litigation was the number of respondents — only 2.8% – who “strongly agreed” and a further 28.4% who “agreed” that the results achieved through litigation are in the client’s interest. Further, 30.2% agreed (strongly or otherwise) that the results are in the interest of the client’s children. However, with respect to processes best suited for high-conflict disputes, litigation was seen as a suitable process by 64.2% or respondents.

By way of comparison, the cost range indicated for resolving family problems through mediation was $630 to $250,000 and the cost range given for resolving family justice problems through arbitration was $2,500 to $100,000. It should be noted as well that the cost estimates presented here do not include the costs to engage other professional services (e.g. financial specialists, child specialists, etc.) as part of the dispute resolution process. Questions related to those costs were included in the survey and data on the hourly and total costs for those services are discussed in the final report. Also of note, 90.2% of respondents agreed that results achieved through mediation are in the client’s interest (and 85.4% agreed it is in the interest of the client’s children), while 34.2% agreed that the results achieved through arbitration are in the client’s interest (and 39.5% agreed that they are in the interest of the client’s children).

There is undeniably more work to be done to get a comprehensive view of the costs, benefits and appropriateness of various dispute resolution methods in addressing problems in family law. As debates ensue about changes to family law in Canada, and as we contemplate ways to improve access to justice, empirical data from studies like this will offer important insights into areas where support and resources can be directed to improve outcomes in family law.

The Evaluation of the Cost of Family Law Disputes: Measuring the Cost Implication of Various Dispute Resolution Methods report is available on the CFCJ website: http://www.cfcj-fcjc.org/sites/default/files/docs/Cost-Implication-of-Family-Law-Disputes.pdf.

 


[1] See, for example, the national Action Committee on Access to Justice in Civil and Family Matters, Roadmap to Change report (2013).

[2] The Cost of Justice project is a 7-year (2011-2018), Social Sciences and Humanities Research Council (SSHRC) funded CFCJ research project that examines the social and economic costs of Canada’s justice system. Information on the Cost of Justice project is available on the CFCJ website here: http://cfcj-fcjc.org/cost-of-justice.

[3] For this project, the CRILF also developed a client survey that was intended to serve as a source of data about experiences with, and relative costs of, the four dispute resolution methods from the perspective of those experiencing family law problems. For practical reasons (discussed further in the final report) of confidentiality and client access, this information was not available.

An Evaluation of the Cost of Family Law Disputes: Measuring the Cost Implication of Various Dispute Resolution Methods

The Canadian Research Institute for Law and the Family (CRILF), in partnership with the Canadian Forum on Civil Justice (CFCJ) have published a new report on the cost implications of four dispute resolution methods used to resolve family law disputes in Canada: collaborative settlement processes, mediation, arbitration and litigation.

The study uses findings from a lawyers’ survey, and applies a modified Social Return on Investment (SROI) analysis approach to assess the costs, benefits, suitability, limitations and lawyers’ preferences for resolving different types of family law disputes using these processes.

Read “An Evaluation of the Cost of Family Law Disputes: Measuring the Cost Implication of Various Dispute Resolution Methods” on the CFCJ website here http://www.cfcj-fcjc.org/sites/default/files//docs/Cost-Implication-of-Family-Law-Disputes.pdf and on the CRILF website at <http://www.crilf.ca/publications.htm>

Access to Justice: Rise Women’s Legal Centre Connecting With Diverse Communities (Part Two)

This article originally appeared on The Lawyer’s Daily on March 1, 2018. It is the sixth article in The Honourable Thomas Cromwell’s exclusive Lawyer’s Daily column dedicated to access to civil and family justice and the second part of a two-part interview with Kim Hawkins, executive director of the Rise Women’s Legal Centre in Vancouver.

TC: Rise was, as you said, an access to justice initiative. How does it contribute to better access to justice?

KH: Rise seeks to enhance access to justice in multiple ways. The first is by directly providing legal advice and representation to women who have no other means of getting legal help. Secondly, Rise seeks to transform legal services from within by creating an opportunity for law students to learn how to deliver community-based legal services and continue to promote access to justice as they move forward in their careers. Finally, Rise works with a litigation director for West Coast LEAF to identify cases that have the potential to advance women’s legal rights at a systemic level by serving as test cases.

Rise also provides different levels of service to clients in an attempt to stretch our limited resources to meet a diverse variety of needs. Rise maintains a small library which women can access during office hours, whether or not they are a client at Rise. Women whose needs are suitable for summary advice clinics are offered the option of a one-hour appointment with one of Rise’s volunteer family lawyers. The majority of women receive service through Rise’s student program which provides a variety of unbundled services, up to and including representation at discrete provincial court appearances.

TC: Are you busy?

KH: The response to Rise has been overwhelming. Our clinic opened its doors in May 2016, and we have been running a wait list ever since. At the start of this term, we had over 140 women waiting for service, and we know that the women are just the tip of the iceberg. The response from the legal community, non-profit community and judiciary has also been overwhelming, in a really positive way — we could not have accomplished so much in just 18 months without this crucial support.

TC: What are the biggest benefits of Rise as you see it?  

KH: I think the biggest benefit of Rise is its ability to work simultaneously at the micro and macro levels.

As a legal clinic our main focus is on the provision of direct services to clients. We work hard to keep our services client-centred and responsive to the unique needs of the women who seek us out. We take family violence very seriously and frequently have to seek protection orders for our clients. Because we are small, we are forced to be adaptable and find creative ways to solve problems.

At the same time, because we are able to focus on a particular area of law and clientele, we have an amazing opportunity to build up expertise that goes beyond individual client cases, to connect with other women-serving organizations and non-profits to collaborate around best practices and to share what we learn with the legal profession.

The other major benefit, of course, is sending our brilliant alumni out into the legal community where we are confident that they will help to transform the legal profession from within.

TC: What challenges are you facing?

KH: The single biggest challenge has always been balancing student workloads in such a way that we can provide meaningful services to clients while keeping expectations manageable for students, and while still being able to close files and let women on the waiting list into the clinic.

The challenges that our clients face are very diverse — their legal issues often involve intersecting areas of law, and many include proceedings in both provincial and Supreme Court. It is heartbreaking to turn clients away because their needs are too complex to be handled effectively in a student clinic, knowing that there is nowhere else to send them and they will likely have to represent themselves or give up.

Even for those clients who have files open at Rise, we have to limit the amount of work that we do so that we can continue to move files through the clinic. We really focus on trying to provide enough assistance to stabilize our clients’ situations and make sure that there is protection in place if it’s needed, but women often need more help than we can provide with our limited resources.

TC: If you could give one piece of advice to anyone interested in helping to address the gap between need and availability of legal services, what would you say?

KH: I think you have to reconcile yourself to the fact that you aren’t ever going to be able to fully address the gap between need and availability, and learn to focus on the small percentage of people that you can help.

At the same time, it’s really important to work in community and to continually assess your accessibility to clients. The barriers that prevent clients from receiving service can be shockingly small to legal professionals — not having enough money to pay for gas to come to an appointment, running out of phone minutes that the client needs to access the Internet and answer an e-mail — let alone larger barriers like language, literacy, discrimination and so many others. It’s important that access to justice initiatives attempt to build bridges with a variety of communities to make sure that they remain responsive to the needs of the most marginalized clients.

This is part two of a two-part series. Read part one here.

The Honourable Thomas Cromwell served 19 years as an appellate judge and chairs the Chief Justice’s Action Committee on Access to Justice in Civil and Family Matters. He retired from the Supreme Court of Canada in September of 2016 and is now senior counsel to the national litigation practice at Borden Ladner Gervais.

Access to Justice: How the Rise Women’s Legal Centre Helps the Most Marginalized (Part One)

[La version française suit.]

This article originally appeared on The Lawyer’s Daily on February 23, 2018. It is the fifth article in The Honourable Thomas Cromwell’s exclusive Lawyer’s Daily column dedicated to access to civil and family justice.

One of the biggest of the access to justice challenges is the gap in availability of legal services. So many people fall in the gap between eligibility for legal aid and the ability to retain private counsel. One innovative initiative to help fill parts of this gap is the Rise Women’s Legal Centre in Vancouver.

I recently had the good fortune to be invited to the centre and to have the opportunity to see first-hand what impressive and important work it is doing to help close the legal services gap for women, especially those dealing with domestic abuse.

I sat down with Rise’s indefatigable executive director, Kim Hawkins, and here is what we talked about.

TC: Can you tell me how Rise Women’s Legal Centre came into being and what it does?

KH: Rise Women’s Legal Centre is a non-profit legal clinic based in Vancouver that provides family law services to self-identifying women. Rise was founded in 2016 through a partnership between West Coast Legal Education and Action Fund (West Coast LEAF) and the Peter A. Allard School of Law at the University of British Columbia.

Rise was a direct response to the crisis in access to justice in British Columbia, where legal aid funding is one of the lowest per capita in Canada and vast numbers of people have no choice but to represent themselves in court.

Dramatic cuts to legal aid in 2002, which slashed the Legal Services Society’s budget by almost 40 per cent over three years, resulted in the elimination of all poverty law services and severely restricted family law funding in this province. Further cuts to services occurred in 2009 and 2010 when five LSS regional centres as well as the surviving family law clinic were closed. Since that time there have been some pilot projects to improve legal aid, but nothing has come close to replacing the services that were lost.

Although these cuts have impacted everyone who needs access to a lawyer in B.C., they have had a disproportionate impact on women, who are more likely than men to be seeking assistance with poverty and family law issues. The impact of these cuts was exacerbated by other factors such as the more severe impact of marital breakdown on women’s economic security, the gender pay gap and the unequal risk of family violence, in concert with cuts to other women’s services and programs. For example, the Ministry of Women’s Equality and the Human Rights Commission were eliminated (the HRC is now being reinstated), funding to women’s centres was cut, and income assistance was changed so that the “employability” status for single parents was lowered from the time their child turns 7 to when their child turns 3.

Fifteen years later, in their “Agenda for Justice,” published in February 2017, the CBA-BC Branch noted that since 2002 “the Legal Services Society has had no funding to provide family law legal services for the majority of family law matters, including child support, spousal support, division of assets and general custody” and called “for adequate funding to ensure that people who qualify for family law legal aid (71 per cent of whom are women) receive representation for services that promote family security and financial stability.”

Rise was conceived of as a one-stop shop where women could receive free, low-barrier legal assistance with a range of issues. However, since opening we have kept our focus squarely on family law, due to the overwhelming need for this service.

TC: You mentioned that the Peter A. Allard School of Law at UBC was a founding partner. Are law students involved in the operation of the centre?

KH: Services at Rise are provided primarily by upper-year law students from UBC participating in an experiential learning externship. The students, who are supervised by on-site lawyers at Rise, learn practical skills in a social justice environment, focusing on the unique circumstances of women and their navigation of the justice system.

This is the first of a two-part series.

The Honourable Thomas Cromwell served 19 years as an appellate judge and chairs the Chief Justice’s Action Committee on Access to Justice in Civil and Family Matters. He retired from the Supreme Court of Canada in September of 2016 and is now senior counsel to the national litigation practice at Borden Ladner Gervais.

 

 


Accès à la justice : Comment le Rise Women’s Legal Centre vient en aide aux membres plus marginalisés de la société par Thomas Cromwell

L’un des défis les plus importants en matière d’accès à la justice est l’écart de disponibilité des services juridiques. Beaucoup de gens ne sont pas admissibles à recevoir de l’aide juridique et ne sont pas non plus en mesure de retenir les services d’un avocat du secteur privé. L’une des initiatives novatrices mises en place pour atténuer cet écart est le Rise Women’s Legal Centre (Centre Rise) à Vancouver.

J’ai récemment eu la chance de visiter le Centre Rise pour voir de mes yeux le travail exceptionnel et impressionnant qui s’y effectue en vue d’aider à combler l’écart relatif aux services juridiques offerts aux femmes, et plus précisément aux femmes victimes de violence familiale.

J’ai pris un moment pour parler avec l’infatigable directrice exécutive du Centre Rise, Mme Kim Hawkins, et voici le résumé de ce dont nous avons discuté.

TC : Pouvez-vous me dire qu’est-ce qui a amené à créer le Centre Rise et ce qu’il fait?

KH : Le Rise Women’s Legal Centre est une clinique juridique sans but lucratif basé à Vancouver qui offre des services en droit de la famille aux femmes qui en ont besoin. Le Centre Rise a été fondé en 2016 grâce à un partenariat entre le West Coast Legal Education and Action Fund Association et la faculté de droit Peter A. Allard de l’Université de la Colombie-Britannique.

Le Centre Rise représente une réponse directe à la crise dans l’accès à la justice en Colombie‑Britannique, là où les gens reçoivent l’un des plus faibles taux de financement en matière d’aide juridique au Canada et où un grand nombre de gens n’ont aucun choix que de se représenter eux-mêmes en cour.

En 2002, il y a eu une réduction importante des fonds accordés à l’aide juridique, ce qui a radicalement amputé le budget de la Legal Services Society d’environ 40 % sur une période de trois ans, a donné lieu à l’élimination de tous les services en matière de droit des pauvres et a considérablement restreint le financement offert en matière du droit de la famille dans la province. En outre, d’autres réductions ont été apportées aux services en 2009 et en 2010 alors que cinq centres régionaux de la Legal Services Society ainsi que la dernière clinique du droit de la famille ont fermé leurs portes. Depuis ce temps, quelques projets pilotes ont été menés pour améliorer l’aide juridique, mais aucun d’eux n’est venu près de remplacer la perte des services.

Bien que ces réductions budgétaires aient été ressenties par tous ceux ayant besoin d’avoir accès à un avocat en Colombie-Britannique, l’incidence sur les femmes était disproportionnée, car ce sont elles qui ont plus tendance que les hommes à chercher de l’aide pour des questions de droit de la famille et des pauvres. L’incidence de ces réductions a été exacerbée par d’autres facteurs tels que les répercussions plus graves sur la sécurité économique des femmes à la suite de la rupture du mariage, l’écart de salaire entre les genres et le risque inégal de violence familiale, de concert avec d’autres compressions budgétaires sur le plan des services et programmes offerts aux femmes. Par exemple, le ministère de l’Égalité de la femme et la Commission des droits de la personne ont été éliminés (le deuxième est présentement rétabli), on a mis fin au financement accordé aux centres pour les femmes et des changements ont été apportés au programme d’aide au revenu pour que l’état d’employabilité des parents monoparentaux baisse du moment où leur enfant atteint l’âge de 3 ans plutôt que l’âge de 7 ans.

Quinze ans plus tard, la division de la Colombie-Britannique de l’Association du Barreau canadien a indiqué dans son rapport de février 2017, « Agenda for Justice », que depuis 2002, la Legal Services Society n’a reçu aucun financement pour la prestation de services juridiques en matière de droit de la famille pour répondre à la plupart des questions de droit familial, y compris les pensions alimentaires pour les enfants, les pensions alimentaires pour époux, le partage des biens et les accords de garde généraux. Dans son rapport, elle demande un financement adéquat afin de s’assurer que les gens qui sont admissibles à recevoir de l’aide juridique en matière de droit de la famille (71 % desquels sont des femmes) sont représentés et obtiennent des services qui améliorent la sécurité familiale et la stabilité financière.

Le Centre Rise a été conçu pour servir de guichet unique aux femmes ayant besoin d’aide juridique gratuitement et sans obstacle pour une variété de questions. Toutefois, depuis l’ouverture du centre, nous nous sommes concentrés uniquement sur la fourniture de conseils en droit de la famille en raison du besoin démesuré dans ce domaine.

TC : Vous avez mentionné que la faculté de droit Peter A. Allard de l’Université de la Colombie‑Britannique est un partenaire fondateur. Les étudiants en droit participent-ils aux opérations du Centre Rise?

KH : Les services du Centre Rise sont principalement fournis par des étudiants en droit de dernière année du premier cycle de l’Université de la Colombie-Britannique dans le cadre d’un programme d’externat d’apprentissage par l’expérience. Les étudiants, qui sont supervisés par des avocats sur place au Centre Rise, acquièrent des compétences pratiques dans un milieu juridique social, lesquelles sont axées sur les circonstances uniques des femmes et leur cheminement au sein du système de justice.

Il s’agit du premier article d’une série de deux.

L’honorable Thomas Cromwell a été juge d’appel pendant 19 ans et siège au Comité d’action sur l’accès à la justice en matière civile et familiale des juges en chef. Il a pris sa retraite de la Cour suprême du Canada en septembre 2016 et agi désormais comme avocat principal dans le domaine du contentieux au sein du cabinet Borden Ladner Gervais.

Reports cite heavy toll of legal problems on Canadian society

This article was originally published by The Lawyer’s Daily (www.thelawyersdaily.ca), part of LexisNexis Canada Inc.

The price paid for legal problems is not just made up of dollars and cents, but with impacts on health, loss of employment and an increased reliance on social assistance, reports the Canadian Forum on Civil Justice (CFCJ).

Three reports from the CFCJ, released on Jan. 5, break down the number of Canadians experiencing a variety of legal problems and the impact they have on different aspects of their lives. The reports show that millions of Canadians experience physical and mental health problems, loss of employment and a loss of housing as a direct consequence of legal problems.

“These reports focus on three specific areas and I think what they all do is highlight the importance of thinking about justice from the user’s perspective as opposed to only the providers’ perspective,” said Trevor Farrow, a professor at Osgoode Hall Law School and principal investigator on the CFCJ reports.

“I think we’re starting to understand that how the user perceives and experiences the system is very different,” he added, explaining that in order to move into a more modern and accessible legal system the gap between user experience and legal offerings needs to close.

The report on health impacts is based on feedback from over 3,000 Canadians describing legal problems they’ve faced over a three-year period. The data shows that 30 per cent of people experiencing one legal problem during that time frame had issues with their physical health. Further to that number, over 65 per cent of the respondents visited a physician more frequently than normal due to their legal problem.

In the report highlighting loss of employment and housing, the CFCJ points to its Cost of Justice survey, which noted that approximately 100,839 people lose their housing every year as a result of experiencing legal problems. People in this position have to turn to friends, relatives or emergency housing such as shelters to keep a roof over their heads. The number of weeks respondents were without their own home varied, but around 22 per cent were without a home for less than four weeks, while over 11 per cent reported that they were without a home for 52 weeks or longer.

Farrow said the reports are the first in Canada to document the monetary value of social costs legal problems cause on a national scale. He explained this data shows what will happen to people across the country if legal services continue to be inaccessible.

“On one level these reports are designed to provide, as far as possible, neutral views on the impacts of legal problems on various parts of people’s daily lives. What we do with that information is now the million-dollar question,” said Farrow, adding that he hopes the reports will influence policy-makers to think differently about budgets and law reform.

Farrow believes more research needs to be done to capture the cost of justice across Canada and that this is a good opportunity to break down silos and collaborate with other service providers.

“We see that justice problems are part of a continuum of social problems: housing issues, education issues, etc. So I think it makes the case for why collaboration on legal services and social services is important,” he said, adding that this data is also a strong argument for investing in the justice system.

“I think justice has certainly been at the lower end of the budget scale compared to other items like policing, health and education. Of course those other sectors are important and they need to be resourced. What we’re starting to see with these reports is we’ve punched way below our weight in terms of justice budgets. We have not really understood the dramatic impact that inaccessible justice has on people’s well-being,” he explained.

Highlighting that legal problems have a social impact, and therefore a direct cost to the state, is just one step in the right direction, Farrow noted. He said it’s unfair for the burden of problem solving to be left to individual lawyers and now is the time for regulators to take a larger role.

“We’re not going to solve all the problems at the retail level in terms of at every lawyer’s office. Having said that, we know that legal services get ultimately delivered to society generally through lawyers in this country because we still have a self-regulated profession. Because of that I think it would be improper and unfortunate if we all, as individuals, don’t start to take seriously what we now know as the impact of what the kinds of services we provide and the kinds of experiences people have,” he said, adding that this data will make a difference in the way people view unbundling of legal services, pro bono work and creative collaboration with other professionals.

“At the wholesale level, in terms of the law societies, regulatory regimes and government, I think the question now is: what are we going to do now to support lawyers in order to make services, our courts and tribunals accessible?” he said.

Farrow believes that if regulators and lawyers don’t find a way to increase access to justice the public will find ways to go around the system.

“If the body that’s been given the responsibility to deliver justice in the province and in the country is not up to the task then, quite frankly, the market and the people are going to simply look elsewhere. So I think it’s high time that the profession and individual lawyers become part of the solution as opposed to maintaining part of the problematic landscape,” he said.

Farrow notes that consumers are going to start turning more to companies such as Axess Law, a law-made-easy company, or online dispute resolution if the legal profession doesn’t innovate soon.

“I think, quite frankly, what we need to do is start having these topics become part of the everyday conversations of the public. It will start to become a matter of public interest and, I hope, we’ll get the strong attention of our elected officials. That’s when real social change gets driven. I think we’re in a good place, but I think this has implications beyond lawyers and clients. It really connects to all of us,” he said.

The three reports make up part of the CFCJ’s Cost of Justice project, which has been examining the social and economic costs of the Canadian justice system since 2011.

The Cost of Experiencing Everyday Legal Problems related to Mental and Physical Health, Social Assistance, Unemployment and Loss of Housing

Researchers at the Canadian Forum on Civil Justice (CFCJ) have published three new Cost of Justice reports that explore some of the frequently overlooked consequences of experiencing serious civil and family justice problems in Canada. Beyond the out-of-pocket monetary costs of everyday legal problems, millions of Canadians experience physical and mental health problems, loss of employment and a loss of housing as a direct consequence of the legal problem(s) that they face. In addition, based on findings from the CFCJ’s national Cost of Justice in Canada survey, Canadians also reported that they access government-mandated social assistance as a result of one or more serious civil or family justice problems that they experienced. To read the latest CFCJ Cost of Justice reports, click on the hyperlinked titles below:

Access to Justice: Katie Sykes on Designing Legal Expert Systems

This article originally appeared on The Lawyer’s Daily on January 4, 2018. It is the fourth article in The Honourable Thomas Cromwell’s exclusive Lawyer’s Daily column dedicated to access to civil and family justice.

Innovation can be a driver of improved access to justice. But our profession is not noted for being at the forefront of innovation. And so it is encouraging to see signs that innovation is front and centre in the training of the next generation of lawyers. That is what I saw on a visit to Thompson Rivers University Faculty of Law in Kamloops, B.C., and in particular in a course created and taught by professor Katie Sykes.

She is an associate professor who developed a course, Designing Legal Expert Systems, in which law students design legal apps using software created by Neota Logic, a software company started by a group of tech-savvy lawyers. Students in the apps course design and build apps for non-profit legal organizations to use in-house or make available to clients, aiming to provide simple, user-friendly paths to legal solutions and better access to justice.

Professor Sykes agreed to answer a few questions for me and here is what I learned.

TC: Describe a little about your background and training and what led you to teach an access to justice seminar at TRU. 

KS: The first course I taught with a focus on access to justice issues was Lawyering in the Twenty-First Century. The central idea of the course was the mismatch between an apparent oversupply of lawyers and, at the same time, the drastic lack of legal services for so many people. How can it be that there are (in some sense) too many lawyers and not enough lawyers both at once, what’s gone wrong with the business model and structure of the legal profession for that to happen, and what creative solutions can the new generation of lawyers come up with?

Lawyering in the Twenty-First Century led to teaching a course on designing legal apps. Many of the L21C students thought about using technology as a tool to bridge the A2J gap. One team actually designed a scheduling app for interlocutory matters — motions and other non-trial court business that can use up a lot of time in a pretty inefficient way — that was brilliant and simple. They had some help from a contact of one of the people on the team, who could code, to build a prototype of the app. This whole experience left me, and I think the students, thinking it would be great if we had more ability to build systems like that ourselves.

That’s why I was very excited to find out that there is this opportunity to use Neota Logic’s platform to build expert systems (basically, applications that automate legal expertise), and that they have created an excellent educational framework that focuses on apps for pro bono organizations. The software enables us to build solutions without any coding knowledge.

TC: Tell me about the assignment you gave your students to design and build and access to justice apps.

KS: In the initial offering of the course, the students, collaborating in groups, worked on four apps ranging from a court form filler for RISE Women’s Legal Centre, which consolidates the process of completing about a dozen different court forms for family law matters, to an app to assist self-represented litigants looking to work with professionals who are open to providing unbundled or limited scope services, for the National Self-Represented Litigants Project.

This fall, we added two more apps: a document “genie” for TRU’s own Community Legal Clinic, which will help clinic staff and volunteers to complete commonly requested documents;  and an app to assist mobile telecom customers who are looking at filing complaints under the Wireless Code of Conduct, for the Public Interest Advocacy Centre (Canada).

TC: Were there any projects resulting from this that could actually help improve access to justice in the real world?

KS: The goal is that all the projects will help A2J in the real world — either by making repetitive jobs that pro bono lawyers and staff do quicker, easier and more accurate, or by providing information and tools directly to members of the public. We haven’t got to the point yet with any of our apps that they’re ready to go live, but we are hoping to do so in the near future.

TC: You obviously want to foster innovation among law students and get them engaged with the access to justice problem. How did the students react? 

KS: They are amazing. They come into the course with absolutely zero knowledge of the Neota platform. Within about 4-5 weeks they are building a simple app as a training exercise, and within just three months they have to design, build and present real apps addressing a real-world problem. They definitely use their skills of thinking like a lawyer, analyzing and solving problems and communicating well. But they use those skills in a completely unfamiliar way, and it is a steep learning curve.

On top of that, they have to work effectively in a team and they have to do a great job with the organizations they’re building the apps for — in effect, their clients.

TC:  Are there bigger lessons here about how the profession should be approaching its response to the A2J problem?

KS:  Smart, innovative people will keep on coming up with ways to do get legal work done faster, better and cheaper, not just in the pro bono area but at all levels of the legal marketplace, and overall that seems likely to be good for enhancing access to justice. I’d love to see that kind of innovation encouraged and enabled by the profession, rather than viewed with suspicion. I think that change of heart is starting to happen in some small pockets, but only slowly and in a limited way.

Federal, Provincial and Territorial Governments Should Implement Legal Aid Impact Statements

In a recent anthology on issues in legal aid, Professor Mary Anne Noone from Latrobe University in Melbourne, Australia proposed that legal aid impact statements become a requirement. In so doing, this would allow governments and others to take account of the downstream impacts that changes to legislation or policy proposed by governments have on legal aid programs. (Mary Anne Noone, Challenges Facing the Legal Aid System in Flynn, A. and Hodgson J. (eds), Access to Justice and Legal Aid: Comparative Perspectives on Unmet Legal Need Oxford: Hart Publishing (2017).

According to Professor Noone, legal aid impact statements have been discussed since the early 1990’s in Australia. Should legal aid impact statements be considered for Canada? What would this look like? As relates to Canada, the adoption of a legal aid impact statement requirement would mean that federal, provincial and territorial governments would have to commit to assessing the impact that all legislative and policy changes in criminal, family and social benefits law would have on legal aid. It would require that provincial and territorial governments assess how the establishment of different courts including, for example, domestic violence courts might impact legal aid. In addition, it would mean that governments would also have to weigh, for example, the impact that an increase in the number of police officers assigned to the streets, as well as a potential increase in the number of criminal charges filed, would affect legal aid. Being forced to consider the downstream effects that policy changes might have on legal aid (and a need for additional legal aid funding) could affect the adoption of changes to charging practices and to policing programs. In the same respect, a legal aid impact statement requirement would also mean that any major changes to government benefits and entitlement programs that would remove citizens from benefit programs or alter the amounts of benefits that they receive would also need to be weighed in terms of their potential impact on legal aid. Importantly, impact statements would also need to include considerations of the cost of implementing “best practices” and holistic and integrated services that aim to meet new demands.

Impact statements would not address existing problems such as the need for representation in family courts. However, in an environment in which legal aid is already under-resourced, it would provide a mechanism to prevent legal aid from falling farther behind.

Access to Justice: Interview with Justice George Czutrin

This article originally appeared on The Lawyer’s Daily on October 16, 2017 as part of Thomas Cromwell’s exclusive The Lawyer’s Daily column dedicated to access to civil and family justice. It is part one of a two-part interview with The Honourable Justice George Czutrin.

Family law is a flash point for access to justice. Some jurisdictions report that as many as 70 per cent of family law litigants appear in court without legal representation. And with or without representation, the stress of legal proceedings adds to the burden of an already emotionally charged situation. The impact on children of conflict and delay in its resolution is hard to overestimate.

The Honourable Justice George Czutrin is a family law expert, a tireless worker for improvement in family law and the senior family judge of the Superior Court of Justice in Ontario. He has been a family law judge since 1993 and his dedication to the pursuit of improved family law justice is unsurpassed.

Justice Czutrin agreed to be interviewed for this column. This is part one of a two-part interview. I think that you will be impressed and encouraged by what he has to say.

TC — What is your role as senior family law judge?

GC — As senior family judge, along with the chief justice, the associate chief justice and eight regional senior justices, I am a member of the court’s executive and we all sit as members of the Superior Court of Justice’s RSJ Council. The Courts of Justice Act sets out the duties of the senior family judge. In summary, the senior family judge provides advice to the chief justice on specific matters concerning the family court (commonly known as the Unified Family Court), including judicial education, practice and procedure, family court expansion and expenditure of budgeted funds. The senior family judge also performs other duties relating to the family court and all family law cases at the Superior Court, as assigned by the chief justice.

TC — Family law is a flash point in the concern about access to justice. What is your court doing to improve access to family justice?

GC — The reality is that family law is the primary reason most Ontarians will likely need legal help or come into contact with the justice system. As acknowledged by the National Action Committee Report (NAC) on family justice, there have been years of reports and suggested solutions but gaps in implementation, particularly where expenditure of public funds is required. Access to family justice includes access to a properly resourced court, knowledge of legal rights and obligations and access to proper legal advice. Family lawyers and courts cannot and should not be blamed for all the ills of the family process. Continuous discussions, delayed implementation and limited pilot projects have left the courts with limited ability to effect large scale improvements on their own.

I believe that much has already been done and much is still in progress. Relating to the work of the court, we have revised our best practices and practice directions for the scheduling, assignment and conduct of family cases in order to maximize our effectiveness, given the resources that are available. We aim to have family cases proceed in a timely fashion and to ensure that sufficient time is provided for each court event, to facilitate meaningful attendances.

Along with the Ministry of the Attorney General and the Ontario Court of Justice, we have sought the necessary approvals from the federal government to support immediate expansion of the Unified Family Court in Ontario to an additional eight Superior Court of Justice locations, which would bring Unified Family Courts to 50 per cent of Ontario’s population. At the same time, we have delivered a plan to the federal government to support expansion of the Unified Family Court to all Superior Court of Justice locations by 2025. These requests are also consistent with NAC recommendations and we are hopeful that they will receive a positive response. We also run biannual educational conferences for Superior Court judges on pressing family law topics, including how best to work with high conflict families and how to handle complex financial issues.

Last year we also introduced a new annual child protection seminar in memory of our late colleague, Justice Heidi Polowin, who was one of our leaders in that very important area of the court’s work. These educational conferences are in addition to the programs that judges may attend from the National Judicial Institute (NJI) and other providers (e.g. the Association of Family and Conciliation Courts).

The Superior Court of Justice has worked with a number of different family justice partners to introduce real, concrete improvements. This includes a new procedural guide to each step in a family law case and Steps to Justice, which revamped and greatly expanded the substantive and procedural information that is available online for family litigants. Steps to Justice is now embedded into the Superior Court of Justice’s website so litigants can access reliable family law information easily.

The Superior Court also continues to help run a family law student negotiation competition, the Walsh Family Law Negotiation Competition, which is held each spring along with a family law moot, under the umbrella of the Association of Family and Conciliation Courts Ontario chapter. These events have been running for three and five years respectively. This year we are thrilled that students will be participating from every law school in Ontario, including our newest law school in Thunder Bay.

We are constantly working with the Ministry of the Attorney General to advocate for and introduce improvements to the family justice system. This includes the Superior Court of Justice’s Dispute Resolution Officer (DRO) program, which is run in partnership with the family law bar in nine locations in Ontario.

Another example of our work with the family law bar, which we will hopefully secure funding for shortly, is a project that will develop of a roster of family lawyers across Ontario who will provide family law services on an unbundled basis in locations. This resource is intended to address the need for greater access to affordable family law services that was a real focus of the family justice working group’s work in the “Meaningful Change for Family Justice” report.

We also continue to press the Ministry for improved technology to streamline the court process for litigants, the bar, court staff and the judiciary. Smart forms and electronic filings, for example, would help parties figure out what needs to be done and prepare their paperwork without having to attend court. These tools could also make sure that the forms have been properly completed and organized before filing and then direct parties to the next steps towards resolution or adjudication readiness. Unfortunately, it is taking much more time than I would have wanted to make progress on these improvements for a number of reasons.

We are also taking steps to try to address pressing issues relating to complex custody and access disputes. For example, last year we partnered with the Ontario Court of Justice and others (including professor Nicholas Bala and Dr. Rachel Birnbaum, as well as Katina Kavassalis of the Office of the Children’s Lawyer) to develop and implement a very successful Views of the Child pilot project, and we are now advocating for the Ministry to fund the provision of those services to Ontario families on an ongoing basis.

These examples should give you a glimpse into how much effort we have and will continue to expend to go beyond wise words and deliver real, concrete improvements for Ontario families. However, as can be seen from my comments above, it is important to acknowledge that we as a court and even more so as individual judges are limited by what we control. In other words, we are dependent on both levels of government to meet our resource needs (relating to judicial, staff, technology and facility resources).

The Honourable Thomas Cromwell served 19 years as an appellate judge and chairs the Chief Justice’s Action Committee on Access to Justice in Civil and Family Matters. He retired from the Supreme Court of Canada in September of 2016 and is now senior counsel to the national litigation practice at Borden Ladner Gervais.

CFCJ Senior Research Fellow, Les Jacobs Elected to The Royal Society of Canada

We are thrilled to offer our most heartfelt congratulations to Dr. Les Jacobs on being elected to the Royal Society of Canada. Dr. Jacobs has long been a member of the CFCJ family, serving in various capacities over the years including as Academic Director and Executive Director. Dr. Jacobs is currently a Senior Research Fellow with our organization and plays a lead role in our national Cost of Justice in Canada research study. He is a Professor at York University where he teaches political science and law & society in the Department of Social Science as well as in the Graduate Program of Law at Osgoode Hall Law School and the Graduate Program in Socio-Legal Studies. Congratulations once more on being elected to the Royal Society of Canada Division of Social Sciences, Dr. Jacobs.

To view the official Royal Society of Canada announcement, visit their website here.

Access to Justice: The Action-Oriented, Result-Driven Views of John Sims

This article originally appeared on The Lawyer’s Daily on August 31, 2017. It is the third article in Thomas Cromwell’s exclusive The Lawyer’s Daily column dedicated to access to civil and family justice.

John Sims was recently named a Member of the Order of Canada for his commitment to access to justice and for his principled and respected leadership as a senior public servant. Since “retiring” as the deputy minister of Justice and deputy attorney general of Canada, John has devoted his enormous energy and his many skills to efforts to improving access to justice. He agreed to respond to some questions from me to help mark this important recognition. I hope that many will use him as a role model and that we may profit from his wise advice.

TC — In your long and distinguished career, you have had the opportunity to view the access to justice issue from many perspectives. Has the nature of the problem evolved over time and if so, how?

JS — Yes, our understanding of access to justice issues has changed dramatically over the last several years. Not that long ago, most of us didn’t talk much about access to justice. In a remarkably short period of time, however, we’ve come from having only a vague awareness of access issues to a much more sophisticated understanding of the nature and scope of the problems. We see the barriers (the complexities, costs and siloes of the justice system) but we also see more clearly the opportunities to overcome them.

We know that access is about much more than just lawyers, courts, legal aid or pro bono. All of the major justice system stakeholders have initiatives underway to tackle these barriers. The big exception is the public itself. We haven’t found enough ways yet to include the public in these efforts, although a campaign is underway now to raise public awareness and engagement. We all recognize that the needs and experiences of the end users of the justice system must be central to any efforts to improve access to justice. So, we’re making headway, but it’s slow. We need still more collaboration, outreach, public engagement, innovation, and, of course, money.

TC — You have served on both the CBA’s Equal Justice project and its implementation committee and on the Action Committee on Access to Justice in Civil and Family Matters. Both reports were innovative and were well received. But has anything come of them?

JS — A lot has happened. The two reports kick-started a national conversation about access to justice. In speeches, conferences, agendas, academic studies — access to justice has been a hot topic.

There’s been action, too. For example, the Canadian Council of Law Deans specifically cited the reports in committing $60,000 to fund new A2J initiatives in their faculties. Saskatchewan University also cited them, when it set up CREATE, a centre of excellence for research on access. The CBA and the Association of Legal Aid Plans have developed legal aid benchmarks as guidelines for a national system of public legal assistance. And the CBA has published a series of “legal health checks” to help people to recognize and avoid legal problems early. Law societies have also responded, explicitly affirming that the profession has a duty to promote access to justice, and actively pursuing A2J initiatives.

The Canadian Council of Chief Judges and the Canadian Judicial Council each passed resolutions supporting the goal of 100 per cent access to justice and committing to lead, and collaborate with others, to achieve that goal. Every province and territory has an access to justice committee with broad, inclusive membership, and they are actively pursuing concrete A2J activities. A new Access to Justice Research Network (AJRN) makes it easier for a wide range of stakeholders to share research, resources and information on access issues. Innovation hubs have been created at Ryerson University and, in Saskatchewan, both at the College of Law and the Ministry of Justice. Last year, the Action Committee published the first annual status report on the state of A2J in the country, based on the so-called Justice Development Goals.

TC If you could bring about one concrete change in the justice system with a view to improving access to justice, what would it be?

JS — I am tempted to point to several things. Almost all of the work on A2J today is being done off the corner of a desk by volunteers with another day job. The injection of even modest amounts of money would allow much faster progress. Encouraging more innovation is also essential. But, if I have to limit myself to one concrete change, I would urge every provincial and territorial access to justice committee to spell out the concrete results they want to achieve each year, and then to set measurable objectives for attaining those results. This is the best way I know to translate broad nebulous concepts like access to justice into real progress on the ground. It’s very powerful and it works.

The Honourable Thomas Cromwell served 19 years as an appellate judge and chairs the Chief Justice’s Action Committee on Access to Justice in Civil and Family Matters. He retired from the Supreme Court of Canada in September of 2016 and is now senior counsel to the national litigation practice at Borden Ladner Gervais.

Everyday Legal Problems and the Cost of Justice – Age, Gender, Region, Education and Born in Canada

As part of the CFCJ’s national Everyday Legal Problems and the Cost of Justice in Canada study, over 3,000 people in Canada were surveyed about their attitudes towards and experiences with the justice system in Canada. Specifically, they were asked about the kinds of civil and family justice problems they experience, their methods of dealing with them, and the associated costs they incur to resolve them. The CFCJ is thrilled to announce that the resulting survey data has now been broken down based on the following respondent characteristics: “Age,” “Gender,” “Canadian Region,” “Education” and “Born in Canada“.

Court Delays and Inadequate Funding: An Equation for Vulnerability for Refugees and Asylum Seekers in Canada

Through last year’s R v Jordan ruling, the Supreme Court of Canada illuminated what it dubbed a “culture of complacency” within the Canadian courts. This issue revolves around ongoing delays and has been the subject of many discussions on efficiency in the courts and the importance of timely judicial appointments. While most commentary on this issue centers around criminal law, this post will examine why wait times, as relate specifically to the immigration law system and refugee and asylum claims brought before the Immigration and Refugee Board of Canada, are also a pressing issue.

Refugee and asylum claims have been a seminal topic during the summer of 2017. There are several reasons for this prominence, including dwindling funding to help claimants navigate the legal system and the immigration process and, insufficient resources within the legal system to review older, so-called “legacy” cases in a timely manner. Both have contributed to worsening delays. While the Jordan ruling brought to the forefront the problem with delays for those accused in criminal courts, it provided no remedy for the thousands of pre-2012 claimants in the refugee and asylum system who filed before a new law requiring hearings within 60 days. Additionally, these claimants have faced growing inefficiencies in other administrative processes (discussed further below) that are required as a part of their scheduled court time. The cumulative effect of long wait times as well as additional administrative delays can also be problematic where there are language and cultural barriers.

The core of this post will focus on two of the major factors that have caused wait times to drastically rise: an increase in refugee and asylum claimants and a lack of government funding to ensure adequate resources and efficiency in hearings for claimants who go through the formal legal system. I discuss these issues from the perspective of government officials who lack adequate resources and support as well as from the perspective of the individuals seeking access to legal aid.

Canadian refugee and asylum immigration is currently suffering from an immense backlog, with asylum claims up to five years old still waiting to be heard. If these claimants are heard and successful in their applications, they will be granted residency status in Canada. Permanent residency comes with several benefits, including access to healthcare and lower tuition costs. Due to the delay, some claimants spend years living in a state of uncertainty, shying away from taking significant actions or making commitments, like enrolling in full-time education programs, in the hopes that their circumstances will soon change.  A change in immigration status offers a path to additional opportunities for many.

In order to understand the issues within the governmental structure, we need to consider both the increase in the number of claims as well as how claims flow into the court system.

The recent increase in refugee and asylum claimants has placed a significant strain on the court system. Of the cohort of asylum seekers who filed claims in 2012, 5,500 people have not had the opportunity to address their claims in court by 2017. Additionally, crises like the Syrian Civil War continue to drive many from their homes and have forced larger numbers to seek refugee status in Canada. When the number of humanitarian crises around the world increases, the number of refugees and asylum seekers in Canada also often increases. Unfortunately, funding for additional resources has not increased at the level needed to match the growing demands on the immigration law system.

For many refugee and asylum seekers to be heard in Canadian courts, the Canadian Border Services Agency (CBSA) must complete and provide a security screening of the individual. Due to funding and personnel shortfalls, the CBSA has routinely been unable to complete many security clearances. The percentage of scheduled cases that are unable to be heard due to incomplete security clearances has increased from 6% two years ago to 55% this year. What’s more, many of the claimants who will not obtain CBSA security clearances by their scheduled court date only find out about this failure one week before the scheduled date. This short notice period has forced the scheduled court dates for many to go unattended, leading to further delays in the system.

From the second perspective explored in this post, that of an individual seeking access to legal aid, it is important to grasp the necessity of legal aid for many refugees and asylum seekers.

In recent years, asylum and refugee immigration has increased and, as a result, so has the number of immigration claimants that require legal aid assistance. The total amount of asylum claimants increased from 16,115 in 2015 to 23,920 in 2016. This number has continued to grow and, as of August, 2017, there have already been 21,695 claimants. However, the amount of money that both provincial and federal governments allocate to legal aid has not increased in a corresponding manner. This shortfall has caused major legal aid providers, Legal Aid Ontario and the Legal Services Society of British Columbia, to predict a forced suspension of services for refugee claimants due to extensive funding gaps.

Legal Aid Ontario predicts the suspension date of their agency’s services for refugees to be between November, 2017 and March, 2018. For just this agency, the cost of providing refugee and asylum services has increased by more than six-million dollars each year. As a result of mounting increases and stagnant funding, Legal Aid Ontario has racked up significant debt.

The other agency that has predicted a suspension of service is British Columbia’s Legal Services Society (LSS). This Legal Aid provider was originally predicted to suspend operations by August 1, 2017. Just before the projected date, the agency received a $386,000 government funding injection, enabling them to extend their operations until at least mid-November. From 2014 to 2016, the Legal Services Society almost doubled the number of asylum and refugee immigration claims they take on due to the increase.

Since many refugee and asylum claimants have to appear in court, they will continue to access government court services even if Legal Aid is not available to them. With this understanding, it becomes clear that the Legal Aid systems that are set up for refugee and asylum seekers function to help the court in addition to helping these individuals.

Legal Aid is a necessary tool in the alleviation of the current immigration backlog because it helps ensure claimants are heard in an effective manner. Legal Aid helps arrange services such as interpreters, which many refugee and asylum seekers may need. In addition to ensuring efficiency in claims, Legal Aid works to ensure that the many vulnerable individuals do not continue to get passed over in the system due to preventable deficiencies.

Refugee and asylum claimants, unlike most other non-criminal law claimants, may face the most serious repercussions if they are not able to make Canada their home. Canada’s access to justice mandate requires fairness in our legal system. Acknowledging what is on the line for many of these individuals, as well as their precarious situations, ought to illustrate the gravity of ensuring they are heard effectively.

These individuals likely have everything on the line, but continue to be put on hold. Canada has a duty to hear these individuals in a timely manner, which requires more resources in the immigration law system as well as an adequately funded Legal Aid system. If the court system slows down and forces these individuals into a docile state, or the Legal Aid system is inadequately funded, many of these individuals will be put at risk.

Access to Justice: New Book Will Spark Deep Debate about the Meaning, Causes of Injustice

This article originally appeared on The Lawyer’s Daily on August 16, 2017. It is the third article in Thomas Cromwell’s exclusive The Lawyer’s Daily column dedicated to access to civil and family justice.

Will we recognize injustice when we see it? And what is injustice anyway? I suspect that these questions are never far from the thoughts of many of us working in the justice system. We hope that we will not be the police officer who pushes too hard to get a suspect’s statement or the prosecutor who wants to “win” too much, or the defence lawyer who misses a path to acquittal or the judge who fails to intervene when justice requires it.

We all recognize the clear cases of injustice — at least after the fact — but what about the ones that are not so clear, such as where the end result seems to be satisfactory, but the way it was arrived at causes us concern.

In his new book: Broken Scales: Reflections on Injustice (American Bar Association, 2017) Joel Cohen, with the assistance of Dale Degenshein, leads us on a course of reflection about these questions in a collection of interviews that present us with the consequences of clear injustices or challenge us to think more deeply about what injustice is.

In 10 chapters, we meet the overzealous prosecutor; the pro bono lawyer who fought the state’s crusade to establish a precedent at the cost of keeping an innocent man in jail; the suspected terrorist who falsely confessed to save his family; the wrongfully convicted person eventually exonerated; the victim of the “red scare” who has never been exonerated; the wrongfully accused police officer; the lone juror refusing to vote for conviction; the CIA operative convicted of violating the Espionage Act; the judge who was wrongly ordered not to sit on certain cases because she had accepted an invitation to a round table of Iranian-American community leaders at the White House; and, finally, a judge not retained in an election because of intense lobbying by anti- gay marriage activists. We are confronted with situations in which fair process and good intentions nonetheless resulted in wrongful convictions. And cases in which the desire to avoid racism and the appearance of bias perpetrated its own type of injustice. And cases in which we are left wondering whether there was any injustice at all. We hear their stories and their own reflections on injustice in their own voices, gently but adeptly guided by Cohen’s skilful interviewing.

For me, the most successful — and the most moving — part of the book is the interview with Kenneth Ireland, a man wrongly convicted of raping and brutally murdering a mother of four children when he was 17 years old. He was exonerated after spending 21 years in jail. His description of the realities of prison life is heart-rending, especially for those of us whose duty has sometimes required us to put people in jail. Reading his description of his anger, of how he survived in prison and how he has tried to rebuild his life reminds all of us in the justice system of the power we wield and the danger that we will make mistakes.

The authors do not provide answers to the big questions about whether we will recognize injustice and what injustice is. Rather, they hope that the interviews and the questions they raise will “add spark to a continuing and important conversation about injustice in America.”

The same ongoing discussion is needed in Canada, too. We have had more than our share of wrongful convictions. We hope that we have learned from them, but the risk is ever present and we need to be reminded that it is. And we have had our own debates about what constitutes injustice. Is it just or unjust when a suspect is acquitted because illegally obtained evidence is excluded from the record? Is it just or unjust when a suspect does not face trial on the merits because the case took too long? Is the result just or unjust when one equality seeking group clashes with another?

This short and highly readable book does not answer these questions either. But it will make the reader keep them at top of mind. And that in itself is the most important thing.

The Honourable Thomas Cromwell served 19 years as an appellate judge and chairs the Chief Justice’s Action Committee on Access to Justice in Civil and Family Matters. He retired from the Supreme Court of Canada in September of 2016 and is now senior counsel to the national litigation practice at Borden Ladner Gervais.

The Canadian Research Institute for Law and the Family and the Canadian Forum on Civil Justice are Studying the Cost of Resolving Family Law Disputes

The Canadian Research Institute for Law and the Family (CRILF) and the Canadian Forum on Civil Justice are tackling a piece of the access to justice puzzle together by conducting a study on the cost of resolving family law disputes.

“Part of the whole access to justice inquiry has to involve the accessibility of different dispute resolution processes and their relative costs,” said John-Paul Boyd, executive director of the CRILF, adding that this often leads to questions about prioritizing funds.

“For example, we have legal aid programs across Canada since the late ’60s [and] early ’70s and those legal aid programs are by and large directed towards providing legal assistance to people who are litigating. In terms of where we, as a society, spend our dollars in the justice system, we spend it maintaining the courts. And it’s not that anyone is suggesting that the courts have no value or that courts are going the way of the dodo, they’re not. Courts are necessary … but just looking at Canadian funding priorities, honestly it’s a bit perplexing to realize that we spend the lion’s share of our money on justice in the civil context on funding a system, which from my experience, is costly and destructive to families.”

Boyd said the institute is studying the costs of resolving disputes through collaborative processes along with the cost of intermediation and arbitration. He said the study is trying to “paint a better picture” of what costs are to clients as that data in not readily available.

“We’re taking a two-pronged approach,” he said. “First we’re gathering data from lawyers, mediators and anybody who’s a member of the CBA’s family law subsections in Nova Scotia, Ontario, Alberta, and B.C. We’ve sent those members a very lengthy survey that asks questions about lawyers’ preferences in terms of dispute resolution and their perceptions as to the cost of themselves, the cost of third party experts and the cost of third party dispute resolution professionals like mediators and arbitrators.”

He said the survey is trying to gauge whether lawyers believe that collaborative processes are suited for high conflict families and whether litigation is capable of handling extremely complex social issues. He added that the institute’s second approach is to conduct a social return on investment analysis on the four different dispute resolution processes by looking at a small number of families who have gone through these processes themselves.

Boyd said the CRILF and the Canadian Forum on Civil Justice started discussing this study last November and began drafting the survey to send to lawyers in March. He said the institute’s goal is to have the study done by December at which point it will make recommendations to provincial and federal governments.

“We aim our recommendations at different places depending on the context,” he said. “We’ll also be making this information publicly available and speaking about it to governments, to decision-makers, to lawyers and to judges because this is all part of the access to justice puzzle. It’s part of the overall effort that’s being undertaken across Canada to finally collect some data on access to justice and the experience of people who have family law disputes.”

Boyd pointed out that lawyers who take the survey can be assured that the information collected is kept confidential. He said the information provided by legal professionals is important because Canada has very little data on lawyers’ experiences with family law and clients’ observations about dispute resolution processes.

“It’s really only in the last five or six years that efforts have been undertaken to collect actual empirical information about the court and other dispute resolution processes,” he said.

Boyd said that beyond the study and the recommendations it might produce it is important for lawyers to encourage government to spend tax dollars in a “sane and rational manner” on dispute resolution processes that cause the least conflict and result in the most enduring resolutions.

Lawyers interested in taking the survey and contributing to the CRILF study can do so here.

This article was originally published by The Lawyer’s Daily (www.thelawyersdaily.ca)

Making A2J Matter to the Public

The Action Committee on Access to Justice in Civil and Family Matters launched the #justiceforall campaign designed to raise public understanding of accessible justice challenges as a component of a healthy democracy.

A next step in transforming the A2J landscape is to engage the public by raising awareness of the importance of justice issues in Canada.  Building a public understanding of the importance of legal health and the predictability of legal issues throughout one’s life will benefit individuals and will transform the access to justice conversation into an issue relevant to citizens, decision makers, and voters. As long as access to justice challenges are only understood within the justice system, the possible solutions will be limited to the scope of influence, resources and imagination of the justice system.

The Action Committee is asking the A2J leaders in Canada, to help raise the profile of A2J efforts. If you are a leader in A2J, a bencher, a legal academic, a judge or a lawyer with a personal following, we would also welcome your participation in collectively raising this issue. To participate in the social media campaign or add a button on your website, there are links, instructions and graphics available at: www.calibratesolutions.ca/actioncommitteecampaign

Starting a public conversation about access to justice will shift the perception of the issue to a holistic understanding of the law as a part of daily life that can be understood and managed throughout one’s life, often with the help of legal professionals.

Intéresse le public de A2J

Le Comité d’action sur l’accès à la justice en matière civile et familiale a commencé la campagne #justicepourtous vise à faire réaliser au public que l’accès à la justice est, en fait, l’accès aux solutions de leurs problèmes juridiques de tous les jours et un élément d’une saine démocratie.

L’étape suivante dans la transformation du paysage de l’accès à la justice est de mobiliser le public en sensibilisant les gens à l’importance des questions de justice au Canada. Sensibiliser le public à l’importance de la santé juridique et à la prévisibilité des problèmes juridiques au cours de leur vie profitera aux individus et permettra de transformer les discussions sur l’accès à la justice en une question concrète et pertinente pour les citoyens, les décideurs et les électeurs. Tant et aussi longtemps que les défis en matière d’accès à la justice sont seulement compris par le système de justice, les solutions possibles seront limitées au champ d’action, aux ressources et à l’imagination du système de justice.

Le Comité d’Action vous demande, comme un des A2J leaders au Canada, nous aider à faire connaître nos A2J efforts parmi le public. Si vous êtes un leader, un conseiller, un juge ou un avocat avec un personnel suivant, nous accueillerions aussi votre participation soulevant collectivement à cette question. À participer à la campagne de medias sociale ou mettre un bouton sur votre site nous avons des liens et le graphisme sont tout disponibles à: www.calibratesolutions.ca/actioncommitteecampaign

Lancer un dialogue public sur l’accès à la justice changera la perception du problème et amènera une compréhension plus globale de la loi comme étant un élément de la vie quotidienne qui peut être compris et géré tout au long de la vie d’une personne, souvent avec l’aide de professionnels de la justice.

Access to Justice: Justice System Could Learn From Nova Scotia Veterans Outreach Program

This article originally appeared on The Lawyer’s Daily on July 19, 2017. It is the third article in Thomas Cromwell’s exclusive The Lawyer’s Daily column dedicated to access to civil and family justice.

Life isn’t organized like the Canadian Abridgement. The real problems of real people don’t sort themselves into neat categories and they are not contained in watertight compartments. A person’s legal problem is often only one dimension of a much bigger, more complex and multi-faceted problem. And we know that one of the biggest impediments to access to justice results from our justice system failing to respond to these multi-faceted problems in ways that are meaningful and practical.

Our justice system is complex, with lines of authority and responsibility that are often diffuse and unclear. Its components exist in silos — judges, lawyers, court officials — so that co-ordinated work toward a common goal is difficult to achieve. And too often, the justice system is unduly insular so that it is often unable or unwilling to collaborate with other government and community resources, let alone co-ordinate its priorities and approaches with them. In short, making our legal system respond to the real problems of real people is often too big a challenge for it to meet.

That is why the Veterans Justice Outreach featured in Donalee Moulton’s May 15 article is so encouraging. According to the press release announcing the program, it will better identify, track and explore alternatives to incarceration for veterans encountering the criminal justice system. While it is presently focused on criminal justice diversion programs such as Mental Health Courts, the program’s goal is to work toward a standardized model that will include other sectors of justice and correctional systems across the country.

How rarely do we see in the justice system the sort of federal provincial and cross-ministry collaboration and co-ordination that is evident in this program. Veterans Affairs Canada has collaborated with Nova Scotia’s Provincial Court Mental Health Court so that services to veterans are co-ordinated with provincial service providers. The initiative recognizes that at the root of many veterans’ encounters with the criminal justice system are problems of mental health, addictions or substance abuse related to the person’s military service.

Nova Scotia’s Mental Health Court, like its counterparts across the country, is focused on therapeutic and collaborative approaches, with a team made up of professionals from the provincial justice and health care systems. What is new is that a federal Veteran Affairs case worker will work with the team to screen applicants and work with those eligible for the program.

The design of this program has features that should be adopted much more widely in other areas of the justice system. First, the initiative is premised on the belief that we should try to deal with the whole person and recognizes that often the legal aspect of a person’s situations is the result of rather than the cause of the real difficulty. Second, the initiative recognizes that there are already extensive resources available in the community and that what is needed is improved co-ordination of those services. Third, the initiative brings together service providers from a variety of government departments and from different levels of government. Finally, the program is being monitored so that its impact can be assessed and, if successful, its approach adopted elsewhere.

Federal Minister Kent Hehr, Chief Judge Pamela Williams of the Nova Scotia provincial court and everyone else involved in this innovative program should be congratulated. And their collaborative and co-ordinated approach to helping address the needs of the whole person before the court should be emulated everywhere in our justice system. Only then will our justice system move from being what it too often is — part of the problem — to what it ought to be — part of the solution.

 

The Honourable Thomas Cromwell served 19 years as an appellate judge and chairs the Chief Justice’s Action Committee on Access to Justice in Civil and Family Matters. He retired from the Supreme Court of Canada in September of 2016 and is now senior counsel to the national litigation practice at Borden Ladner Gervais.

Judicial Resolutions A Call to Action, But Tough Questions Will Follow

This article originally appeared on The Lawyer’s Daily on June 12, 2017. It is the second article in Thomas Cromwell’s exclusive The Lawyer’s Daily column dedicated to access to civil and family justice.

Sometimes symbolic gestures are meaningful. And sometimes they are even important. The recent resolutions by the leaders of the Canadian judiciary concerning access to justice are both.

In April, at the urging of the Action Committee on Access to Justice in Civil and Family Matters, the Canadian Council of Chief Judges (composed of the leaders of the provincial court judiciary) and the Canadian Judicial Council (composed of the leaders of the federally appointed judiciary) passed resolutions supporting the aspirational goal of 100 per cent  access to justice and calling on all judges to demonstrate leadership and work with all Canadian citizens and justice system stakeholders to achieve that goal.

Here are the two resolutions.

The Canadian Judicial Council Resolution from its April 2017 meeting:

“THAT the Canadian Judicial Council supports the aspirational goal of the public having 100 per cent access to the knowledge, resources, skills and services needed to effectively deal with their civil, family and criminal legal problems. As part of its commitment to promote meaningful access to justice for all, the Council urges all federally appointed judges in Canada to demonstrate leadership and work with all Canadian citizens and justice system stakeholders to achieve that goal.”

The Canadian Council of Chief Judges Resolution from its April 2017 meeting:

“The Canadian Council of Chief Judges supports the aspirational goal of the public having 100 per cent access to the knowledge, resources, skills and services needed to effectively deal with their civil and family legal problems. As part of its commitment to promote meaningful access to justice for all, the council urges all provincially appointed judges in Canada to demonstrate leadership and work with all Canadian citizens and justice system stakeholders to achieve that goal.”

Cynics will say that these resolutions are meaningless gestures. But that would be to judge too quickly. A similar resolution passed by the U.S. Conference of Chief Justices and Conference of Court Administrators in 2015 has been a catalyst for change and a morning star of inspiration for access to justice advocates in that country. I hope we will be able to say the same thing in Canada a year from now.

More importantly, these resolutions provide important advocacy tools for change. They permit us — even invite us — to go back to the councils a year from now and ask what they have done to move beyond these welcome words to much-needed action.

And the reach of these resolutions goes well beyond the work of the two councils. Note that the resolutions call on all judges — not just chief justice and judges — to do two things: to demonstrate leadership and to work with the public and justice system stakeholders to achieve the goal of 100 per cent access to the knowledge, resources, skills and services needed to address their legal problems. The call for judges to work with others to this end sends an important message that collaboration and co-operation are needed, including from judges. And the resolutions’ vision of access to justice as being about more than courts and judges is groundbreaking.

So I am delighted with these resolutions and congratulate the chief justices and chief judges for their leadership. The resolutions are brimming with potential.  But now comes the hard part. The two councils, and the whole Canadian judiciary will need to be ready for a tough question a year from now: how have you moved on from hopeful talk to concrete action?

I hope many in the justice system and beyond will ask and that the Canadian judiciary has some good answers.

The Honourable Thomas Cromwell served 19 years as an appellate judge and chairs the Chief Justice’s Action Committee on Access to Justice in Civil and Family Matters. He retired from the Supreme Court of Canada in September of 2016 and is now senior counsel to the national litigation practice at Borden Ladner Gervais.

Thinking Big about Access to Justice

This article originally appeared on The Lawyer’s Daily on March 3, 2017: https://www.thelawyersdaily.ca/articles/2599. It is the first article in Thomas Cromwell’s exclusive The Lawyer’s Daily column dedicated to access to civil and family justice.

Access to justice is the biggest challenge facing our legal system. And just about every lawyer I know cares deeply about the health of that system and many are trying to help. But do we understand the problem and are we making progress? Those questions will be the jumping off spot for this, and subsequent blogs dedicated to access to civil and family justice.

Let’s start with what we mean by the term “access to justice.” I’m concerned that it can have so many meanings that it loses its meaning entirely. Of course it’s a phrase that is bandied around to mean a lot of very different things. What I mean by access to justice is assuring that people have the knowledge, skills, resources and services to meaningfully address their civil and family legal issues.

In order to meaningfully address their problems, people do not necessarily need to have their “day in court” (let alone their month in court!). Access to justice needs to be understood much more broadly than that. I will never forget the women at one of the many access to justice events that I’ve attended over the past eight years who said that sometimes it’s more about a bus pass or a babysitter than it is about getting into court. So access to justice must be understood in broad terms: do people have what is required to meaningfully address their problem?

This broad understanding of access to justice means that we have to keep fair process and practical outcomes in some reasonable balance. Many would say – and I am one of them – that we in the justice system have tended to be process heavy and outcomes light. We all know that too often a judgment is a meaningless piece of paper; too often, what we call fair process provides a means by which moneyed might can wear out the right. Of course, fair process is important. But so are practical outcomes. How often does our current approach provide both?

Once we understand that access to justice must be understood broadly, we quickly see that the problem is both complex and systemic. Everything in our system is related to everything else and so a “solution” adopted by one part of the system can quickly become a “problem” for another part. We have generally been unwilling or unable to take a tough-minded, systemic view of access to justice. And too rarely have we been able to articulate the specific goals of reform or been able to measure or meaningfully evaluate the effects of particular reforms.

Remember when, in the 1970s and early ’80s, broader rights of discovery were thought to be the cure-all for what ailed the civil justice system? Broader rights of discovery would make for fairer trials and encourage settlement. Fast forward 30 years, and what became enemy No. 1 in civil proceedings? Excessive discovery. The discovery saga is typical. Significant procedural reforms are introduced based on anecdotal  evidence (sometimes called “anecdata”) and effects are “monitored” in the same way. We simply do not take account of foreseeable systemic effects of the changes or bother to measure these effects once the reforms are put in place.

What I hope to do in this series of columns is to invite a broader understanding of what access to justice means and to advocate for a fundamental rethink of what our system of civil and family justice needs to look like to achieve practical outcomes by means of fair process for the people who bring us their legal problems. And I hope to celebrate some of the wonderful work that is being done every day across Canada to improve access to justice. In short, I want to invite readers to think big together about how we can bring about major and beneficial change for the people who look to us for help in addressing their civil and family justice issues.

Fasten your seat belts.

The Honourable Thomas Cromwell served 19 years as an appellate judge and chairs the Chief Justice’s Action Committee on Access to Justice in Civil and Family Matters. He retired from the Supreme Court of Canada in September of 2016 and is now counsel to the national litigation practice at Borden Ladner Gervais.

The Charter and Legal Aid Ontario’s Proposed Refugee Law Cuts

Legal Aid Ontario (LAO) has announced plans for substantial cuts to its immigration and refugee law services. Other legal aid programs across Canada are no doubt watching this closely, and may be considering similar measures. The proposed cuts, however, may be unconstitutional.

Proposed 40% cuts to Refugee Law Services

Currently, refugee claimants in Ontario who meet the test for financial eligibility can obtain legal aid certificates for assistance in putting together their claim, including drafting Basis of Claim narratives (the key document used in refugee determinations). Most financially eligible refugee claimants also receive legal aid certificates for representation at their refugee hearings, with only a small number refused representation due to merit screening. In addition, LAO funds some other types of representation, including appeals to the Refugee Appeal Division, judicial review of certain immigration and refugee matters in Federal Court, Pre-Removal Risk assessments, Humanitarian and Compassionate applications for Permanent Residence, and immigration detention reviews.

Because of budgetary pressures – both in immigration and refugee law and other program areas – LAO has announced that it will be cutting immigration and refugee law services by 40%, starting in July. The proposed cuts include eliminating all immigration law services outside of refugee law, as well as cuts within refugee law services. For the latter, LAO is asking for advice from stakeholders about how the cuts should be made. To help with these consultations, LAO has put forward a few possibilities. These range from prioritizing Basis of Claim narratives and eliminating representation at refugee hearings, to fully funding legal representation for refugees until a set level of funding for that year runs out and then not giving any further certificates for the year.

The refugee advocacy community is up in arms about the cuts. Many have called on LAO’s funders to step up and fully fund immigration and refugee law services. Others have suggested that there are better ways to achieve cost savings at LAO without reducing services for refugees. These include pushing for improvements to the refugee determination system to reduce costs, cutting services in other program areas, finding efficiencies in LAO administration (including salaries), and reducing the hourly rate of pay for lawyers working on certificates across all program areas.

A constitutional right to publicly funded counsel in refugee cases?

One of the reasons that LAO has proposed cuts to its refugee law program – rather than trying to achieve the same savings through its much larger criminal law program – is because publicly funded counsel is constitutionally mandated in many criminal law cases.

This raises the question of whether there is a constitutional right to publicly funded counsel in the refugee law setting that might prohibit the proposed cuts.

In my view, the answer is yes, at least in some circumstances.

The Supreme Court famously held in Singh v Minister of Employment and Immigration, [1985] 1 SCR 177, that the right to life, liberty and security of the person protected by section 7 of the Charter is engaged by the refugee determination process – and thus that the process must comply with principles of fundamental justice.

And in New Brunswick (Minister of Health and Community Services) v G(J), [1999] 3 SCR 46, the Supreme Court established the test for when state funded legal counsel must be provided in connection with legal proceedings where section 7 rights are at stake. The Court found that state funded legal counsel is not required in all legal proceedings where section 7 rights are at stake. Rather, state funded legal counsel is only required where an indigent party has exhausted other means to secure counsel, and where counsel is necessary for the individual to effectively participate in the legal proceedings and to ensure a fair hearing. The Court went on to note that whether counsel is necessary for effective participation in a fair hearing will depend on three factors:

  1. The “seriousness of the interests at stake”;
  2. The “complexity of the proceedings”; and,
  3. The “capacity” of the individual involved.

It seems to me that the refugee law context easily meets this test.

First, it is hard to imagine any legal process where the interests at stake are more serious. Refugee law involves life and death-decision making. If Canada gets these decisions wrong, refugees may be deported (in contravention of international law) to countries where they will face persecution, torture or even death.

Second, refugee proceedings are complex. They require a solid grasp of domestic and international refugee law, administrative law, constitutional law, international human rights, national security law, and criminal law – as all these are understood and applied in Canada, source countries and countries of transit. And, while the rules of evidence in refugee hearings are relaxed, gathering and presenting the evidence can be challenging, and often requires specialized expertise and ready access to various professionals to persuasively substantiate claims. Additionally, in substantiating their claims, refugee claimants frequently deal with adjudicators who approach refugee claimants with a culture of disbelief and who regularly use small inconsistencies in evidence as a reason to deny claims – which means that small errors in preparing claims can be fatal. Even in the best of circumstances, refugee determinations generally involve challenges related to communication across cultures, and cross-cultural miscommunications are common. All this and more has led scholars who study refugee determination processes to argue that “[r]efugee determination is one of the most complex adjudication functions in industrialized societies.”

Third, as a group, refugee claimants are seldom well-placed to successfully navigate these complex processes on their own (with some exceptions, of course). Most refugee claimants are under extreme stress because of the high stakes of the refugee determination process, combined with the unfamiliarity and uncertainty of the process. Many have good reason to be distrustful of state officials, given their experience with such officials in their home countries. Mental health challenges, including post-traumatic stress disorder, are common because of the trauma that prompts refugees to flee. Most refugee claimants do not speak, write, or read in English or French. This may be the first time they are engaging with a legal process – and they are doing so in the context of a foreign legal system.

Indeed, given both the complexity of the process and the difficulty that refugee claimants face in navigating that process, it is perhaps not surprising that social scientific research – both in Canada and elsewhere – regularly finds that access to high quality legal representation significantly influences outcomes in refugee determinations.

As such, in addition to meeting the three aspects of the test from New Brunswick, publicly funded counsel for refugee claimants also fits with the underlying rationale offered by the Court for constitutionally mandated publicly funded counsel in section 7 cases. That is, publicly funded counsel must be available to refugee claimants as a constitutional matter because claimants require the assistance of counsel in order to effectively participate in the process and in order to ensure access to a fair hearing. Unless such publicly funded counsel is made available, outcomes in the refugee determination process – a process that is constitutionally required to comply with principles of fundamental justice – will hinge at least in part on whether claimants can afford to pay for a lawyer.

Moving forward

It remains to be seen whether LAO will, in fact, move forward with the proposed cuts. The proposal may just be a strong-arm negotiating tactic aimed at pressuring the Federal government to cough up additional money. Perhaps that tactic will succeed, and the cuts will not be necessary. Or perhaps, if the money does not come through, LAO will reconsider and will locate savings elsewhere.

But if LAO does proceed with the cuts, we can expect constitutional litigation. Based on the test set out in New Brunswick, I think this litigation has a good prospect of overturning the proposed cuts.

Ironically, this litigation fits perfectly within the criteria for LAO’s test case program, which has identified “equal access to, and effective protection of, Charter rights” for refugees as a priority for the coming years.

Perhaps continuing to offer adequate refugee law services, and avoiding funding both sides of expensive constitutional litigation about access to counsel for refugee claimants would be one way for LAO to achieve some cost savings down the road.

The Cost of Justice (Research)

A number of reports published in recent years have highlighted the lack of research on access to justice in Canada and have called for more. In a Canadian Forum on Civil Justice column published on slaw.ca, Andrew Pilliar discusses the state of access to justice research in Canada and offers insight into how much access to justice research is being funded in Canada.  Read “The Cost of Justice (Research)” here.

Les problèmes juridiques de la vie quotidienne et le coût de la justice au Canada – rapport général

Le forum canadien sur la justice civile est très heureux d’annoncer que << Les problèmes juridiques de la vie quotidienne et le coût de la justice au
Canada : rapport général >> est présentement disponible en français. Ce rapport général fait partie du projet sur les coûts de la justice (2011-2018) qui examine les coûts sociaux et économiques du système de justice canadien.

Les problèmes juridiques de la vie quotidienne et le coût de la justice au Canada : rapport général est disponsible sur notre site web ici.

Engaging the Power of Community to Expand Legal Services for Low‐Income Ontarians

The Legal Health Check-up Project which involved 12 community legal clinics in Southwestern Ontario and 125 partnerships with community organizations and service agencies, was developed as a way to provide information and assistance related to everyday legal problems to disadvantaged people. “Engaging the Power of Community to Expand Legal Services for Low‐Income Ontarians”, the complete report on the Legal Health Check-Up Project was prepared by CFCJ Senior Research Fellow, Dr. Ab Currie, in his capacity as Research Consultant to the Legal Health Check-­up Project and details the development, adoption and expansion of the Legal Health Check-Up Project. “Engaging the Power of Community to Expand Legal Services for Low‐Income Ontarians” is available in full here.

A Changing Role for Lawyers in the Age of Self-Represented Litigants

In recent years, there has been a dramatic increase in the number of individuals who address a legal issue without the assistance of legal representation.  Statistical data generated by the Canadian Forum on Civil Justice (CFCJ) indicates that approximately 11.4 million people in Canada will experience at least one everyday legal problem in a given three-year period.[1]  It is further reported that approximately “50% of people try to resolve their problems on their own with no or minimal legal or authoritative non-legal assistance.”[2]  In statistical terms, another recent report reveals that approximately 40% of civil law litigants represent themselves, and this percentage increases dramatically in certain legal fields, such as family law, where as high as 60-70% of litigants in certain family courts are self-represented.[3]  Moreover, as retainers run out, legal matters are unresolved and clients are unable to pay their mounting legal bills, the percentage of self-represented litigants is likely to increase.[4]  Low and moderate-income individuals have historically been among those most likely to be self-represented.  The combined effect of all of this accumulating data is the building access to justice crisis in the Canadian legal system.[5]  Most recently, a growing funding crisis in Legal Aid Ontario in 2017 points toward even more individuals being unable to obtain legal assistance and as a result, being obligated to enter the justice system as self-represented litigants.[6]

This crisis in access to justice in Canada has resulted in a variety of policy initiatives; many of these have been directed at attempting to assist the growing number of self-represented litigants who continue to enter the civil justice system without traditional legal representation.[7]  One of the practical realities of this data and the initiatives that have arisen in response to this phenomenon (i.e., duty counsel and self-help legal services aimed at providing self-represented litigants with summary legal advice and information) is that lawyers are often operating within a system that no longer resembles the legal system for which they were ostensibly trained.

However, while low and moderate-income individuals have historically been disproportionately self-represented, 50% of the self-represented litigants recently surveyed had a university degree and approximately 40% of those surveyed had an income of over $50,000 per year. [8]  In seeking to better understand the profiles of those who resolve their legal problems through self-help and without legal representation, Ab Currie stated that:

[i]n statistical terms, the relationship between the action taken to resolve problems and most socio-economic characteristics is statistically significant but extremely weak. There appears to be a slight tendency for self-helpers to be older, to have higher incomes, to be somewhat better educated and to be single or married or a couple with no children.  Respondents who are self-helpers were less likely to report that they have a physical or mental health problem.[9]

This signals a shift in the demographic make-up of self-represented litigants; self-representation is expanding to include members of the traditional middle class.[10]  In the American context, this phenomenon was previously observed by Sande Buhai who noted that there was “an increasing number of middle-income individuals choosing to resolve their legal issues without the help of a lawyer.”[11]  The shift in the demographics of the self-represented litigant population is also likely to have an impact on individuals’ perceptions about the role that lawyers play in the legal system and the legal profession more generally.  Historically, many individuals within marginalized communities have experienced a disengagement with respect to the legal profession.  However, a new generation of self-represented litigants not otherwise marginalized within society may view the profession more critically.  In adopting a more critical view of the legal profession’s value, they might challenge the legitimacy and authority of the profession.

Based on results from their nationwide survey, the Canadian Forum on Civil Justice reported that 41% of individuals who spent money to resolve their legal problem (i.e., obtained legal services) thought that the outcome was fair as opposed to 61% of those who did not spend money on legal services and thought that the result was fair.[12]  Moreover, 81% of the group surveyed thought the legal advice that they obtained was helpful however 68% of the group who sought non-legal advice also found that the advice was helpful to them in resolving their legal issue.[13]  While this does not spell the end of lawyers, it does suggest that individuals’ perceptions about the need for legal assistance and the type of assistance that they require may be evolving, such that more direct engagement in their own legal matters will affect how they conceptualize their relationship with members of the legal profession and what they expect from the profession.

In light of these dimensions, a shift in demographics and corresponding growth in the number of self-represented litigants has important implications for how the legal profession both thinks about and interacts with self-represented litigants.  In many respects, the legal profession has historically defined the ‘terms of engagement’ regarding access to justice.  This has had far-reaching effects on how members of the profession view their responsibility to advance access to justice and engage with those individuals attempting to access justice.[14]  To the extent that a broader spectrum of individuals are representing themselves, it is important that the legal profession take serious stock of how it has viewed self-representation, how the emergence of self-representation operates within the adversarial model, and how the legal profession’s traditional professional responsibilities in the adversarial system may be at odds with self-representation.  Historically, it was not unreasonable to suggest that lawyers tended to view self-represented litigants as nuisances in the legal system, ‘career litigants’ or individuals pursuing vexatious claims.[15]  The underlying assumption was that the self-represented litigant was likely to delay the resolution of the matter due to his or her lack of knowledge and experience, increase the costs incurred by paying clients, and pursue claims that were not meritorious.

While attitudes may be slowly changing as more self-represented litigants enter into the legal system, the concern is that those views continue to shape how legal professionals interact with self-represented litigants; and these views are situated within lawyers’ self-perceptions about their duties and responsibilities to both clients and adversaries.  At a minimum, the legal profession’s belief that the goal of access to justice should be legal representation for self-represented litigants raises concerns about how those same legal professionals are likely to respond to self-represented litigants who they believe ‘do not belong in the legal system’ without representation.  This attitudinal challenge must also be examined in the context of the legal profession’s continued adherence to a model of professionalism that focuses on the lawyer as a zealous advocate for whom there is no one else in the world but her client.[16]  Together, historical views about the legitimacy of self-represented litigants and a singular commitment to neutral partisanship serve to undermine the fulfillment of the adversarial system’s objectives; this ultimately risks diminishing the legitimacy of the civil justice system as a means by which members of society might resolve disputes and enforce rights.

The absence of more comprehensive professional guidelines regarding self-represented litigants is in serious need of correction.  Given the influx of self-represented litigants in the civil justice system, it has become necessary to integrate self-represented litigants more directly within the rules of the professional conduct framework. This type of reform cannot involve a ‘mere tinkering.’  Instead, what is required is a more in-depth re-thinking about the condition of the adversarial framework and lawyer’s roles within that framework – what are goals and objectives of the civil justice system?  Answering these questions will entail an inquiry into how the adversarial framework in which lawyers operate may require very different normative rules as well as practices that take better account of self-represented litigants’ legitimate participation within the legal system.[17]

In developing new approaches that might better shape the legal profession’s response to and interaction with self-represented litigants, one option is to explore other adjudicative frameworks that might infuse and alter the existing adversarial model.  The rationale for adopting this approach is, in part, due to a recognition that the existing adversarial system does not operate as it is ideally represented.  Indeed, over time, certain reforms (i.e. comprehensive disclosure requirements) have been undertaken to address inequalities in the existing system.  Thus, as the legal system evolves, albeit at a snail’s pace, so too must the corresponding professional expectations of lawyers in order to reflect the new realities as well as a continued commitment to a fair and just legal system.  An important component of this evolution will be the need for a broader engagement with individuals who are representing themselves in order that the legal profession and its regulators might better understand how the duties and responsibilities held by lawyers play out in this context.  Another part of this analysis will need to engage members of the profession in a more critical and reflective examination of their ethical responsibilities.  In this regard, the data collected by the Canadian Forum with respect to the ways in which individuals attempt to resolve their legal issues provides an important means to explore the changing role of the legal profession in an age of self-representation.

[1] Trevor CW Farrow et al, Everyday Legal Problems and the Costs of Justice in Canada: Overview Report (Toronto: Canadian Forum on Civil Justice, 2016) [Cost of Justice].

[2] Ibid.

[3] Julie MacFarlane, The National Self-Represented Litigants Project: Identifying and Meeting the Needs of Self-Represented Litigants, Treasurer’s Advisory Group on Access to Justice (TAG) Working Group Report (2013) [MacFarlane]. In the American context, the President of the American Bar Association recently commented that approximately “80% of litigants remain unrepresented in all civil matters.” See Victor Li, “William Hubbard Speaks about the Importance of Technology in Expanding Access to Justice”, online: (2016) ABA Journal <http://www.abajournal.com/news/article/william_hubbard_speaks_about_the_importance_of_technology_in_expanding_acce/?utm_source=maestro&utm_medium=email&utm_campaign=techshow_wrapup>.

[4] Ontario Bar Association, ““Getting it Right”: A Report of the Ontario Bar Association Justice Stakeholders Summit” (June 2007), online: Ontario Bar Association <www.OBA.org/en/pdf/Justice%Summit.sml.pdf>.

[5] Cost of Justice, supra note 1.

[6] Alex Robinson, “More Self-Represented Litigants Due to Deficit?” Law Times News (23 January 2017) online: <http://www.lawtimesnews.com/201701235895/headline-news/more-self-represented-litigants-due-to-deficit?utm_term=More%20self-represented%20litigants%20due%20to%20deficit&utm_campaign=CLNewswire_20170123&utm_content=email&utm_source=Act-On+Software&utm_medium=email>.

[7] In her foreword to the Action Committee on Access to Justice in Civil and Family Matters’ Final Report, Chief Justice McLachlin comments “as Canadians celebrated the new millennium, it became clear that we were increasingly failing in our responsibility to provide a justice system that was accessible, responsive and citizen-focused.  Reports told us that cost, delays, long trials, complex procedures and other barriers were making it impossible for more and more Canadians to exercise their legal rights.” See Action Committee on Access to Justice in Civil and Family Matters, “Action Committee, Final Report on Access to Justice in Civil and Family Matters” (2013), online: Canadian Forum on Civil Justice <http://www.cfcj-fcjc.org/sites/default/files/docs/2013/AC_Report_English_Final.pdf>; see also Trevor CW Farrow, Diana Lowe, Bradley Albrecht & Martha E Simmons, “Addressing the Needs of Self-Represented Litigants in the Canadian Justice System”, A White Paper Prepared for the Association of Canadian Court Administrators (27 March 2012), online: Canadian Forum on Civil Justice < http://www.cfcj-fcjc.org/sites/default/files/docs/2012/Addressing%20the%20Needs%20of%20SRLs%20ACCA%20White%20Paper%20March%202012%20Final%20Revised%20Version.pdf>.

[8] MacFarlane, supra note 3 at 8.

[9] Ab Currie, “Self-Helpers Need Help Too” Law for Life (2010), online: Law for Life <http://lawforlife.org.uk/wp-content/uploads/2013/05/self-helpers-need-help-too-ab-currie-2010-283.pdf>. at 8.

[10] There are different ways to define the middle class; if you define it by income earned, it would encompass families that earn between $32,000.00 and $95,000.00 per year (approximately 40% of Canadians meet this criteria.  However, it may also be defined in terms of the amount of discretionary income that a family has to spend on non-essential items or to save.  Research done by Statistics Canada in 1991 suggested that this only constituted 25% of the population. See Tasmin McMahon, “Who Belongs to the Middle Class in Canada?” Maclean’s (26 February 2014), online: Maclean’s <http://www.macleans.ca/economy/who-belongs-to-canadas-middle-class>.

[11] In the American context, this phenomenon was previously observed by Sande Buhai who noted that there was an increasing number of middle-income individuals choosing to resolve their legal issues with out the assistance of legal representation. See Sande L Buhai, “Access to Justice for Unrepresented Litigants: A Comparative Perspective” (2009) 42 Loy LA L Rev 979 at 983; see also Consortium on Legal Services and the Public, Legal Needs and Civil Justice “A Survey of Americans: Major Findings from the Comprehensive Legal Needs Study” (1994), online: American Bar Association < http://www.americanbar.org/content/dam/aba/administrative/legal_aid_indigent_defendants/downloads/legalneedstudy.authcheckdam.pdf>.

[12] Cost of Justice, supra note 1.

[13] Ibid.

[14] Alan Paterson, “Lawyers and the Public Good-Democracy in Action?” in Hamlyn Lectures (Cambridge, UK: Cambridge University Press, 2010).

[15] In one example, a lawyer was quoted as saying, “lawyers don’t like dealing with angry self-represented litigants. That is what articling students are for.” See Linda Perlis, “The Death of a Divorce Lawyer” Globe and Mail (1 December 2015) online: Globe and Mail <http://www.theglobeandmail.com/life/facts-and-arguments/the-tragic-death-of-a-divorce-lawyer-changed-my-life-in-unexpected-ways/article27545237>.

[16] Lord Henry Brougham cited in Caroline Amelia Elizabeth The trial at large of Her Majesty Caroline: Amelia Elizabeth, Queen of Great Britain, in the House of Lords, on charges of adulterous intercourse; containing a full and accurate detail of the evidence of the witnesses, the speeches of counsel, and all other proceedings in this extraordinary trial (London: T. Kelly, 1821).

[17] Carrie Menkel-Meadow, “Is the Adversary System Really Dead?” (2004) 57:1 Curr Leg Probl 85 at 105.

Social Impact Bonds and Access to Justice

There is a new socially innovative initiative, known as Social Impact Bonds (SIBs), whereby the private sector shares in the risk and reward associated with the outcome of social programs. With funding being a challenge for many not-for-profits and stakeholders working to improve access to justice across Canada, SIBs may provide a way forward for many in this area.

SIBs are a “pay-for-success” contract in which the government contracts with a private actor to create a program. The government is only required to pay if the program meets a threshold target. Often, there will be a range of targets with a corresponding payout depending on the level of success. In 2015, the Ontario government committed to piloting SIBs as part of its poverty reduction strategy.

SIBs were first developed in 2014 in Saskatchewan with a program to support at-risk single mothers. The program, a five-year arrangement, was a collaboration between a credit union and a youth centre. To assist with the legal arrangements of the financing – the payment of the bond – a national Canadian law firm was used. The desired outcome of the project is that 22 children and their mothers still be together six months after participating in the program. An independent party will measure the program at the end of the second, fourth, and fifth years. If there were fewer than 17 families still together, investors would receive nothing. If there are 17 families or more still together, investors would then receive their initial investment plus an additional 5%.

SIBs were introduced at the federal level earlier this year through a partnership between the Public Health Agency of Canada and the Heart and Stroke Foundation, with the MaRS Centre for Impact Investing finding the initial funds to support the program.  The Public Health Agency will only be required to pay the Heart and Stroke Foundation if the program meets the desired outcome – a reduction in blood pressure levels for a group of 7,000 seniors on the verge of developing hypertension. If the program stops or the target isn’t met, investors, made up of individuals, businesses and charitable foundations will receive a return of 6.7%. If the program is better than expected, and blood pressure decreases further, the investors will receive 8.8%. None of the $3.4 million will be paid out if the program fails.

The process could be said to be a type of public-private partnership (P3). In Ontario, P3 projects have been used to build and finance universities, highways, hospitals, courthouses, light-rail transit, etc. This model is effective because the private sector is often in a better position to take on a significant portion of the risks involved with overseeing a project. Critics complain that this sort of design is more expensive, and to a degree they are right in the sense that private interest rates are higher than government interest rates.

However, in an era when the ability for programs such as legal aid to help clients is directly tied to their funding, there is an opportunity for SIBs to help provide access to legal services and legal professionals to many with limited resources. There is some evidence in the United Kingdom that this sort of investment may work. When programs for newly released inmates were failing to provide support, resulting in more individuals re-offending, an SIB program was developed with the goal of reducing the likelihood of prisoners re-offending.

In the case of this UK project, reoffending rates fell 8.4% but a reduction of 10% was required for investors to be paid out. Still, the results are hardly a failure; the outcome provided a social benefit for the participants as well as the broader community. It appears the UK government is planning to push forward with new initiatives for investment that will target homelessness. The UK government has begun introducing tax relief for people who invest in SIBs.

There are other advantages to Social Impact Bond programs. They also lend themselves to addressing issues that are multi-dimensional. For example, homeless individuals sometimes face substance abuse problems, mental and physical health issues, joblessness, etc. For some individuals experiencing some types of legal problems, many of the same manifestations may occur. Day after day in court can impair the ability of litigants to maintain consistent work hours, volunteer, attend medical appointments, and many other important day-to-day activities. This can lead to tremendous costs, job loss, and immense stress. Organizations and programs like legal aid are only able to address one problem, while collaborative initiatives may not have the resources to support clients for extended periods. SIB programs can offer various programs within the initiative to address the various factors that contribute to the ultimate outcome, e.g. employment, education, and counselling. .

Collaborative law is one area where SIBs could be applied in the law. Collaborative law is a variation of alternative dispute resolution that can take a holistic approach to various legal issues in a dispute, e.g. employment, insurance, divorce, etc. Collaborative processes begin by having the parties sign an agreement to participate completely in the process. The process usually ends with a binding agreement. Typically, facilitators of collaborative law can suggest other forms of aid such as mental health therapy. There are several possible benchmarks for determining the success of this type of program including non-binding agreements, divorce rates for couples.

For access to justice solutions to work they require flexibility and the ability to address a multitude of client needs – collaborative law is a great option for access-to-justice oriented investing in Canada. Social Impact Bonds offer a unique opportunity for private sector businesses and individuals to invest in socially beneficial causes. At the same time, these programs can be managed by groups or organizations that are in the best position to address the particular needs of the clients.

 

Quin Gilbert-Walters is a third-year law student at Osgoode Hall Law School in Toronto. He has been a research and communications assistant with the Canadian Forum on Civil Justice since 2015. Upon graduating from Osgoode, Quin will return to Infrastructure Ontario, where he spent last summer as a summer associate, to article. Infrastructure Ontario is a Crown agency devoted primarily to improving Ontario’s infrastructure. In particular, IO often uses a special alternative finance and procurement model to complete public-private-partnership (P3) projects.

One Problem, Many Responses? – A Multidisciplinary Approach to Access to Justice

An increasing amount of research and data point to the value of using both legal and non-legal services to address civil justice problems. For members of society who experience social exclusion, the ability to jointly access these resources bears additional significance. Canadian Forum on Civil Justice Senior Research Fellow, Dr. Jennifer Leitch discusses the merits of a multidisciplinary approach to access to justice, and the Cost of Justice research study that she has begun on this theme, in a paper that is published on the CFCJ website here.

Dr. Leitch explains that the goal of this study is ultimately to explore what services, information or support might help people to address the broader scope of challenges they face related to their legal problems and, what benefits might be attributed to the provision of a broader scope of services that offers an expanded concept of access to justice.

Access to Justice Advocate – Sarah McCoubrey

Much of the work that is being done to improve access to justice for Canadians comes down to access to justice advocates. As a part of our efforts to highlight the diverse range of individuals working across the access to justice arena, the Canadian Forum on Civil Justice was thrilled to recently speak with Sarah McCoubrey for our Access to Justice Advocates series.

Sarah McCoubrey, a lawyer and a founding partner at Calibrate Solutions, is well-known in the access to justice community. She has been integral to several provincial and national campaigns that have sought to disseminate information, research and resources pertaining to a number of access to justice issues. We recently sat down with Sarah for our Access to Justice Advocate series to talk about her work, shifts in the access to justice landscape and what needs to be done to improve the accessibility of our civil justice system. The interview with Sarah was conducted by CFCJ Research Assistant, Lucas Gindin and can be viewed in full here.

Tracking Legal Need in Very Small Areas with the Legal Health Check-Up

The Legal Health Check-Up (LHC) is a uniquely valuable tool for documenting unmet legal need at a very fine-grained, local level. The LHC questionnaire is administered by community groups and service agencies to people seeking their services. Individuals who require service from the legal clinic are referred to the clinic. The LHC form becomes the basis for a dialogue between the clinic staff and the individual, laying the groundwork for a more holistic and integrated service that would otherwise not have occurred with an intake process focussing on addressing only one problem that is presented. The larger number of LHC forms, which may or may not include requests for help from other services, can provide useful insight and, can  be included in a database that comprises all the individuals who complete the forms and report the problems they are currently experiencing.

The LHC used for data collection does not constitute a random and representative survey. The scope of the data depends on factors such as the number of groups in the community that have LHC partnership arrangements with the legal clinic. The reliability of the data is subject to the manner in which each agency has people complete the forms.

However, the form does record the everyday legal problems that occur in the lives of the people who complete them. The problems can be aggregated for all the community agencies that have partnerships with the legal clinic and the data can be cumulated over time. The LHC is highly flexible. Changes can be made to the problem types presented in the survey in response to social changes in the community. Problems that apply uniquely to certain groups such as Aboriginal peoples or refugee claimants can be included. Acknowledging the limitations of LHC data for describing the landscape of legal problems, these data have a level of specificity for small areas that cannot be achieved by sample surveys even with extremely large samples. The LHC data documents legal problems directly and, to that end, is superior to inferences about legal need using proxy measures derived from census or other official data that are collected for other purposes.

As an outreach strategy, it is important to understand that the LHC approach is more than just the check-up questionnaire that is used to identify inconspicuous legal need.  The LHC also necessitates a relationship between the legal clinic and community organizations that provides a pathway to legal help.

The form itself is a valuable source of information to better understand unmet legal need. As a resource that is used in the course of providing service, the form also provides useful data that is not easily accessible by other means.  Legal service providers using the LHC approach should bear this in mind in the way they use the LHC form.  Decision-makers in government and legal aid commission bureaucracies who are responsible for encouraging and funding promising approaches for expanding access to justice should also pay close attention to this important feature of the legal health check-up approach.

Discussing Ways to Improve the Economic Efficiency and Accessibility of the Civil Justice System – Reflections from the Civil Justice and Economics Conference

A couple months ago, I had the privilege of attending a conference centered on the theme of Civil Justice and Economics. This conference, presented by the Canadian Institute for the Administration of Justice (CIAJ) in partnership with the Canadian Forum on Civil Justice (CFCJ), featured presentations by a number of prominent researchers, academics, judges, legal practitioners, and government and non-profit stakeholders, all devoted to the common goal of improving the economic efficiency and accessibility of our civil justice system. While the Canadian justice system has been touted internationally as fundamentally fair, rule abiding, and open, it has received mediocre rankings on scales of efficiency and accessibility, particularly in the realm of civil justice.[1] This is no secret when considering the extent to which some of the highest members of our judiciary have bemoaned the current state of access to justice in Canada.[2] As a leader among nations, Canada is a country that has the capacity to do better and must do better.

While there is still a tremendous amount of work to be done, the CIAJ/CFCJ conference offered a reassuring glimpse into some new developments that are helping pave the way for increased accessibility and efficiency. Chair of the Civil Resolution Tribunal (CRT), Shannon Salter, for example, spoke about the work that the CRT has been doing in leveraging technology to create Canada’s first fully integrated online tribunal. The CRT has jurisdiction over strata property disputes in British Columbia, and uses a solution explorer that enables users to resolve their disputes from the convenience of their own homes. Speaking to a different development, 2016 Gonthier Fellowship recipients Heather Heavin and Michaela Keet presented the results of their research project, which proposes using legal analytics to enhance the capacity of counsel to provide litigants with competent advice at an early stage in the litigation process. By using hard data to inform a particular action’s prospects of success, Heavin and Keet’s methodological approach allows lawyers to be more accountable to clients, and allows clients to make better informed decisions about settling versus litigating.

The work of the CRT and of professors Heavin and Keet are just two examples of some of the up-and-coming developments that are helping to improve the provision of legal services within our borders. Other presenters also spoke to ongoing or potential initiatives in the realms of data sharing, class actions and alternative legal services (ex: “unbundling” of legal services, “limited scope retainers”). Moving forward, it will also be important to observe the extent to which provincial regulators implement the recommendations set out in the CBA’s Futures Report. If Canada is to make substantial gains on the accessibility front, provincial regulators need to be open to the possibility of allowing for Alternative Business Structures (ABS’s), non-lawyer fee sharing, and Multi-Disciplinary Practices (MDP’s). These three things in particular, can have a profound effect in both improving the quality of legal services and in driving down costs for consumers.

[1] See for example Canada’s ranking re: World Justice Project: Rule of law Index 2016

[2] See for example Chief Justice McLaughlin’s “Foreword” and Justice Cromwell’s “Introduction” in the Action Committee on Access to Justice in Civil and Family Matter’s 2013 report, entitled “Access to Civil & Family Justice: A Roadmap for Change”

Justice Development Goals Website Launch / Lancement du site Web sur les objectifs de développement en matière de justice

The Action Committee on Access to Justice in Civil and Family Matters is pleased to announce the launch of its new Justice Development Goals website (www.justicedevelopmentgoals.ca).

The Action Committee was convened in 2008 by the Rt. Honourable Beverley McLachlin, Chief Justice of Canada, in order to develop consensus and priorities around improving access to civil and family justice in Canada, while also encouraging cooperation and collaboration between all stakeholders in the justice system. In 2013, the Action Committee published Access to Civil & Family Justice: A Roadmap for Change, which contains 9 Justice Development Goals that, if accomplished, will help to address the large and growing access to justice gap in Canada.

The new Justice Development Goals website presents the 9 Justice Development Goals in plain language so that the most important justice stakeholders – the public – can join us in our journey towards meeting these goals.

The website is only the first step in a broader public engagement process to be conducted over the winter and the early spring of 2017.

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Le Comité d’action sur l’accès à la justice en matière civile et familiale est heureux d’annoncer le lancement de son nouveau site Web sur les objectifs de développement en matière de justice (www.justicedevelopmentgoals.ca).

Le Comité d’action a été formé en 2008 par la très honorable Beverley McLachlin, juge en chef du Canada, pour établir un consensus et des priorités concernant l’amélioration de l’accès à la justice en matière civile et familiale au Canada, tout en encourageant également la coopération et la collaboration entre tous les intervenants du système de justice. En 2013, le Comité d’action a publié le document intitulé L’accès à la justice en matière civile et familiale : Une feuille de route pour le changement, lequel contient 9 objectifs de développement en matière de justice qui, s’ils sont atteints, aideront à combler l’écart important et grandissant en ce qui concerne l’accès à la justice au Canada.

Le nouveau site Web présente les neuf objectifs de développement en matière de justice en langage clair afin que les plus importants intervenants du système de justice – les membres du public – puissent nous accompagner dans notre parcours vers l’atteinte de ces objectifs.

Le site Web n’est que la première étape d’un grand processus d’engagement du public qui se déroulera à l’hiver et au début du printemps 2017.

Launch of a major project to develop and publish a Status Report on the State of Access to Justice in Canada

As work to improve access to justice in civil and family matters continues to gain momentum across Canada, the Action Committee on Access to Justice in Civil and Family Matters is pleased to announce the launch of a major project to develop and publish a Status Report on the State of Access to Justice in Canada. The project will be carried out by the Canadian Forum on Civil Justice.

The Action Committee was convened in 2008 by the Rt. Honourable Beverley McLachlin, Chief Justice of Canada, in order to develop consensus and priorities around improving access to civil and family justice in Canada, while also encouraging cooperation and collaboration between all stakeholders in the justice system. In 2013, the Action Committee published Access to Civil & Family Justice: A Roadmap for Change, which contains 9 Justice Development Goals that, if accomplished, will help to address the large and growing access to justice gap in Canada.

The first step in the project is to do an in-depth survey of organizations working to improve access to justice. The survey instrument, which is now available, is built around the Justice Development Goals. The survey can be completed on-line by any organization, institution or body that defines itself as engaging in activities designed to improve access to justice.

The next step will be to compile and publish the survey results. This will occur in time for the Action Committee’s next annual meeting in March of 2017.

I urge every organization working to improve access to civil and family justice to complete and return the survey and to encourage other organizations in your network to do the same. The value of the status report depends on the response level and I hope that you will support this ground-breaking project.

 

This article is also published here:
http://www.justicedevelopmentgoals.ca/blog/2016/11/23/survey

Lancement d’un grand projet visant à rédiger et à publier un rapport d’étape sur l’état de l’accès à la justice au Canada

Alors que les efforts pour améliorer l’accès à la justice en matière civile et familiale se multiplient partout au Canada, le Comité d’action sur l’accès à la justice en matière civile et familiale est heureux d’annoncer le lancement d’un grand projet visant à rédiger et à publier un rapport d’étape sur l’état de l’accès à la justice au Canada. Le projet sera mené par le Forum canadien sur la justice civile.

Le Comité d’action a été formé en 2008 par la très honorable Beverley McLachlin, juge en chef du Canada, pour établir un consensus et des priorités concernant l’amélioration de l’accès à la justice en matière civile et familiale au Canada, tout en encourageant également la coopération et la collaboration entre tous les intervenants du système de justice. En 2013, le Comité d’action a publié le document intitulé L’accès à la justice en matière civile et familiale : Une feuille de route pour le changement, lequel contient 9 objectifs de développement en matière de justice qui, s’ils sont atteints, aideront à combler l’écart important et grandissant en ce qui concerne l’accès à la justice au Canada.

La première étape du projet consiste à mener un sondage approfondi auprès des organisations qui travaillent à l’amélioration de l’accès à la justice. Le questionnaire du sondage, qui est maintenant accessible, repose sur les objectifs de développement en matière de justice. Le sondage peut être rempli en ligne par toute organisation, toute institution ou tout organisme qui se définit comme un participant à des activités conçues pour améliorer l’accès à la justice.

L’étape suivante consistera à compiler et à publier les résultats du sondage avant la prochaine réunion annuelle du Comité d’action qui aura lieu au mois de mars 2017.

J’incite fortement toutes les organisations qui travaillent à l’amélioration de l’accès à la justice en matière civile et familiale ainsi que les autres organisations faisant partie de leur réseau à répondre au sondage. La valeur du rapport d’étape dépend du taux de réponse au sondage et j’espère que vous appuierez ce projet novateur.

 

Cet article a été publié pour la première fois sur:
http://www.justicedevelopmentgoals.ca/blog/2016/11/23/sondage

Everyday Legal Problems and the Cost of Justice in Canada Fact Sheets

The CFCJ’s Everyday Legal Problems and the Cost of Justice in Canada: Overview Report discusses the frequency of seventeen different civil and family justice problems experienced by Canadians, as well as the costs to Canadians and to the State of having an everyday legal problem.

We are thrilled to announce the publication of several Everyday Legal Problems and the Cost of Justice in Canada fact sheets, aimed at providing further detail on the incidences of the seventeen problem categories discussed in the Overview Report. The data in these fact sheets was gathered from our Everyday Legal Problems and the Cost of Justice in Canada Survey. The fact sheets offer information on the following problem types: Consumer, Debt, Employment, Neighbour, Discrimination, Family (Relationship Breakdown), Wills and Incapacity, Medical Treatment, Housing, Personal Injury, Treatment by Police (and Criminal Charges), Family (Other), Disability Assistance, Threat of Legal Action, Social Assistance and Immigration.

For information on other outputs from the CFCJ’s Everyday Legal Problems and the Cost of Justice in Canada study, visit the CFCJ website at: www.cfcj-fcjc.org/cost-of-justice

Everyday Legal Problems and the Cost of Justice in Canada Infographic

Our most recent infographic provides an overview of some of the key concepts presented in our “Everyday Legal Problems and the Cost of Justice in Canada: Overview Report“. Essentially all of us will experience at least one significant everyday legal problem over the course of our lifetime. Experiencing and trying to resolve these problems can be costly. View our Everyday Legal Problems and the Cost of Justice in Canada infographic here for an outline of why this presents a serious problem for the public, the State and access to justice in Canada. An animated version of this infographic is forthcoming.

Nudging the Paradigm Shift, Everyday Legal Problems

How do we define a legal problem? What is meant by justice and access to justice? What ought to be encompassed within the concept of a justice system? In “Nudging the Paradigm Shift, Everyday Legal Problems in Canada”, Dr. Ab Currie, Senior Research Fellow at the Canadian Forum on Civil Justice, discusses the responses to these questions in the context of legal need and frequently occurring everyday legal problems. He highlights a methodological approach that moves beyond problem resolution solely through the formal justice system and instead invites a more holistic way of viewing and delivering access to justice that considers both social and legal needs. What is needed for this paradigm shift to occur? Read Dr. Currie’s paper in full here.

Civil Justice and Economics: A Matter of Value / La Justice civile et économie : une question de valeur

The Canadian Forum on Civil Justice is thrilled to partner with the Canadian Institute for the Administration of Justice (CIAJ) for the upcoming Civil Justice and Economics: A Matter of Value conference. The conference will take place from October 5-7 at the Fairmont Château Laurier in Ottawa and will include a series of panels and presentations centred on the way that economic concepts can help us to understand and assess the effectiveness of the decisions stakeholders and key players make in the administration of justice. We look forward to discussing our Cost of Justice project, hearing from other expert panels and sharing in conversations around this theme.

To view the full conference program or to register, visit the conference page here.

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Le Forum canadien sur la justice civile (FCJC) est heureux de travailler en partenariat avec L’Institut canadien d’administration de la justice (ICAJ) pour la conférence << Justice civile et économie : une question de valeur >>. La conférence aura lieu du 5 au 7 octobre au Fairmont Château Laurier à Ottawa. Cette conférence part du principe que les concepts économiques pourraient les aider à mieux évaluer les conséquences de leurs actions et l’efficacité de leurs choix et décisions, tant sur le plan économique que social. Nous avons hâte d’en discuter notre projet sur le thème des coûts de la justice au Canada et d’échanger avec divers intervenants pour la justice sur le sujet de la justice civile et économie.

Pour télécharger le programme de la conférence ou pour s’inscrire, cliquez ici.

Thank You For Your Donation

The Canadian Forum on Civil Justice would like to express our sincere gratitude to the following for supporting our 2016 fundraising campaign:

The Yukon Department of Justice
The Nova Scotia Department of Justice
The Alberta Ministry of Justice and Solicitor General
The Ontario Ministry of the Attorney General
The Saskatchewan Ministry of Justice and Attorney General

Your support is vital to our access to justice research efforts and it also allows us to disemminate information that highlights opportunities for a more inclusive justice system.

We are immensely grateful.

 

Problèmes juridiques quotidiens et les coûts de la justice au Canada – Fact Sheet

Le forum canadien sur la justice civile est très heureux d’annoncer que notre fiche descriptive sur les problèmes juridiques quotidiens et les coûts de la justice au Canada est présentement disponible en français! Cette fiche descriptive fait partie du projet sur les coûts de la justice (2011-2017) qui examine les coûts sociaux et économiques du système de justice canadien.

Les faits qui sont présentés au document sont des constatations clés de « Everyday Legal Problems and the Cost of Justice in Canada: Overview Report » rédigé par Trevor C.W. Farrow, Ab Currie, Nicole Aylwin, Les Jacobs, David Northrup et Lisa Moore.

Le projet sur les coûts de la justice est financé par une subvention du Conseil de recherches en sciences humaines.

Cost of Justice Project Presentations

Members of the Canadian Forum on Civil Justice staff and research alliance presented research and findings from the SSHRC-funded Cost of Justice project at several conferences in Spring, 2016. Here are the links to the slides from some of those presentations:

Law and Society 2016 Annual Conference : Discussing the Future of Access to Justice Research

The Access to Social Justice Symposium, Building A2SJ: An Interdisciplinary Conversation About Problems and Soutions : The Economics of Justice and Injustice

International Development Research Centre and the Open Society Justice Initiative : Accesible Justice: Cost and Research Issues

 

We Are Here to Help: the changing culture of legal aid in Nova Scotia

The traditional legal aid model has focused on providing legal solutions to a series of problems that have been narrowly defined as “legal.” The reality, however, is that strictly legal problems are often embedded within a cluster of non-legal problems. Therefore, in order to effectively respond to the growing legal need in this country the legal aid model must reorient its approach to client service. This type of “culture shift” is something that the National Action Committee on Access to Justice in Civil and Family Matters has advocated for in its 2013 white paper entitled “Access to Civil and Family Justice: A Roadmap for Change.”

In his recent piece on the changing culture of legal aid in Nova Scotia, CFCJ researcher Ab Currie highlights four service areas where the Nova Scotia Legal Aid program (NSLA) has responded to the National Action Committee’s call for change. The four service areas are as follows:

1)    Criminal legal aid in Halifax
2)    Family law services in Dartmouth
3)    Social justice program in Kentville
4)    Aboriginal justice program in the Province

As a means of illustrating this culture shift, Currie provides a “snapshot” picture into the lives of four individuals who have made important contributions to Nova Scotia’s changing legal aid landscape. While their stories may be different, the common thread between these four NSLA support workers is that they have all forged partnerships with community organizations to deliver legal aid service that is holistic, innovative, and collaborative.

To view the stories and contributions of these four NSLA staff to Nova Scotia’s pioneering legal aid program and Dr. Currie’s paper, click here.

Human-Centered Design and the Justice System: Lessons from the Field

The best way to improve any system is to work with and receive feedback from the individuals who are engaged in that system. In her recent trip to the Yukon, CFJC Research Fellow and Winkler Institute Assistant Director Nicole Aylwin met with the Yukon Courts, Department of Justice, and other justice stakeholders to discuss the benefits of a “Human-Centered Design” (HCD) approach to civil justice reform. This approach has led to several recommended improvements in the civil justice system, including the complete redesign of the family law statement of claim as part of the Yukon Simplified Form Innovation Project. To read about Nicole’s reflections from the Yukon summit and her work using the HCD approach to civil justice reform click here.

**Nicole Aylwin’s article, Human-Centered Design and the Justice System: Lessons from the Field, was written for, and originally published on www.slaw.ca**

Research Update: Paralegals, the Cost of Justice and Access to Justice: A Case Study of Residential Tenancy Disputes in Ottawa

A further and final year of data gathered for this case study has reinforced the message that paralegals, who purportedly offer more affordable and accessible legal services than lawyers, are continuing to make a significant contribution to the resolution of residential tenancy disputes in Ottawa, but only for landlords and, largely, for corporate landlords.  The reinforcement of this message across a data set now spanning five years of residential tenancy dispute cases for the Eastern Region of the Landlord and Tenant Board of Ontario further solidifies a conclusion that who provides more affordable and accessible legal services can have an impact on whose legal needs are serviced.  This, in turn, raises more fundamental questions about   whether access to justice is really being improved in this context at all.

As introduced in a previous CFCJ Newsletter, this research project aims to identify the role of paralegals in the Ontario residential tenancy dispute resolution system and to analyze their impact on the cost of justice and access to justice, especially for low-income tenants.  The impetus for this study is two-fold.  First, in the face of a perceived ongoing crisis in access to justice, increasing emphasis is being placed on the potential of paralegals to offer affordable, efficient and effective legal assistance to people with unmet legal needs.  In other words, paralegals may provide a means for re-configuring the costs of justice and thereby improving access to justice.  Second, anecdotally-reported experiences of participants in the Housing Justice Project, a joint-initiative of the Faculty of Law at the University of Ottawa and ACORN Ottawa that provides assistance to low-income tenants, indicated that paralegals are playing a significant role in the residential tenancy dispute system, but more for landlords than for tenants.

Against this background, this research project initially gathered and preliminarily analyzed all reported decisions (on CanLII) of the Ontario Landlord and Tenant Board for the Eastern Region (which includes hearings in Ottawa, as well as in Kingston, Brockville and other smaller communities) for the four years preceding commencement of the research (mid-2009 to mid-2013).  Since many claims do not reach the decision stage, and since only a modest proportion of decisions are reported, the total number of decisions gathered is only a small sub-set of the total number of claims filed with, and resolved through, the LTB for the Eastern Region.  The decisions included claims filed by both landlords (typically for eviction) and tenants (typically for maintenance and, relatedly, rent abatements).

An interim research update, provided in an earlier CFCJ Newsletter, provided preliminary results of the ongoing analysis of the data set.  That interim update compared the set of cases for 2009-10 and 2012-13 in terms of the prevalence of the different types of representatives that are permitted to appear before the LTB, as well as self-representation, for landlords and tenants.   The preliminary analysis revealed that, for tenants, the prevalence of the different types of representatives remained similar as between the two years, with a generally high rate of self-representation among tenants (>60%) and with paralegals playing only a very marginal role (≤1%).   For landlords, a key difference in prevalence of the different types of representatives was the seemingly significant increase in the role of paralegals, from 20% to 28%, as between the two periods.  This appeared to have come about through a matching decrease in reliance on non-legal representatives (falling from 29% to 20%).  Since non-legal representatives are typically employees or agents of corporate landlord entities, this suggested that corporate landlords are the main beneficiaries of the increased prevalence of paralegals in the residential tenancy dispute system.

Subsequently, a further set of cases was gathered from CanLII for the years 2013-14 and 2014-15.  Unfortunately, the number of cases reported through CanLII for the Eastern Region of the LTB for 2014-15 was unusually small (n=24) and so, although not revealing any meaningful inconsistency with the rest of the data set, that year of cases has been excluded from the project.  This research update reports on the further and final year of cases for 2013-14, while also revisiting the earlier and overall data set in an attempt to elicit more fine-grained information on types of representatives and to begin sketching the resultant landscape of head-to-head representation dynamics.

Prevalence of Different Types of Representation

The tables and charts below report the prevalence of different types of tenant and landlord representation for each of the five years from 2009-10 to 2013-14.  It should be noted that these annual data sets are generally not large enough, compared to the total annual number of cases for the region (which are typically in the range of 8000 applications) to be treated as representative samples.  But these cases are all that is publically available and analysis of them at least indicates potentially significant attributes that, if representative, would warrant consideration.

The first table reports on tenant representation and includes a newly developed distinction within the category of ‘Lawyer’ between those who could be identified as practicing either at a community legal clinic or the Ottawa Housing Help community non-governmental organization, labeled ‘public’, and those who could not be so-identified, labeled ‘private’.  It should be noted, however, that some of the Lawyers designated as ‘private’ may be appearing on the basis of legal aid certificates and so would be better counted as ‘public’.  It is also important to note that the category of ‘Duty Counsel’ representation captures only a portion of the representation assistance, and none of the other types of assistance, provided by publicly-funded duty counsel lawyers to tenants.  Specifically, casework statistics on the Eastern Region duty counsel program provided by the Advocacy Center for Tenants of Ontario show that duty counsel, who usually assist around 25% to 30% of total tenants, provide summary advice to around 90% of the tenants they assist but provide representation services to only 30% to 50% of assisted tenants.  Moreover, not all representation services are necessarily identifiable in the written decisions and orders that constitute the data set.

chart1/chart1.jpg

As can be seen, the further and final year of data reflects the earlier analysis of tenant representation, in that over 60% of tenants self-represented.  In terms of paralegals, their previously very marginal level of prevalence declined to non-existent.   The relative prevalence of the different types of representatives over the 5 years is visually depicted in the following chart.

chart1/chart2.jpg

In terms of the specific research question of the extent to which paralegals play a role in tenant representation and access to justice in the Eastern Region of the LTB, analysis of this data continues to indicate that paralegals play virtually no role.

As for landlords, the next table reports on landlord representation over the 5 years and, again, the fifth and final year of data reflects the relative prevalence of the different types of representation established from the second year in the series.  Throughout the 5-year period, landlord self-representation has remained constant at around 30%.  The second year (2010-11) is noteworthy for indicating a significant switch from the use of non-legal representatives (who are typically employees or agents of corporate landlords) to paralegals.  The use of paralegals rose from 21% in 2009-10 to 28% in 2010-11, and has remained at around that level since, whereas the use of non-legal representations declined from 30% in 2009-10 to 15% in 2010-11, and has remained well below 30%, although fluctuating significantly, in subsequent years.

chart1/chart3.jpg

In terms of the specific research question then, analysis of this data continues to indicate that paralegals have established a significant role in landlord representation and access to justice in the Eastern Region of the LTB.  Since non-legal representatives are typically employees or agents of corporate landlord entities, this suggests that corporate landlords are the main beneficiaries of the increased prevalence of paralegals in the residential tenancy dispute system

The following chart offers a visual depiction of the relative prevalence of the different types of landlord representation over the period.

chart1/chart4.jpg

While it is still important to emphasize that this analysis is preliminary, the extra year of data appears only to reinforce the troubling tentative conclusions about the relationship between paralegals and access to justice, at least in the context of residential tenancy disputes, that were offered in the interim research update. Specifically:

  • It would appear that paralegals are not sufficiently affordable or accessible to be a viable option for tenants and so offer no direct access to justice improvements to tenants;
  • It would appear that paralegals are sufficiently affordable or accessible and, presumably, are also sufficiently effective, to be an increasingly attractive option for meeting the legal needs of corporate landlords BUT it is not clear that this counts as a meaningful improvement in access to justice, because it might be doubted whether corporate landlords were suffering any particular deficits in access to justice or, at least, whether they were suffering any particularly pressing deficits;
  • To the extent that corporate landlords may be benefitting from increased use of paralegals, there is the danger that this may be coming at the direct cost of tenants who, whether represented or not, may be facing more effective opponents.  Any such detriment to tenants may amount to a decrease in their access to justice.

Prevalence of Different Head-to-Head Representation Dynamics

One way to begin to investigate the concern about a detrimental impact on tenants from the one-sided prevalence of paralegals is to analyze the prevalence of the different types of head-to-head representation dynamics that are produced across the data set.  A preliminary analysis to that end (which, for this purpose, includes the small set of cases available for 2014-15) has now been conducted and reveals the following selected results.

The most prevalent head-to-head representation dynamic is when both the landlord and tenant are self-representing, which occurred in 22.5% of cases.  The next most prevalent, at 15.5%, was when the landlord is represented by a paralegal and the tenant is self-represented.   That was followed by non-legal representation for the landlord against a self-represented tenant, at 11.8%, and then lawyer-for-landlord v self-represented tenant, at 8.1%.   All told, 65% of self-represented tenants faced a represented landlord.  In contrast, only 39% of self-representing landlords faced a represented tenant.  By the same token, of the situations where self-represented landlords faced represented tenants, 71% of the tenant representatives were lawyers (including duty counsel).  In contrast, of the situations where self-represented tenants faced a represented landlord, only 20% of the representatives were lawyers (with 39% being paralegals, 30% being non-legal and 10% being agents).

Given that the general prevalence of self-representation among tenants (around 60%) is consistently twice that of landlords (around 30%), it is not surprising that tenants more often find themselves in a one-sided representation dynamic where they are self-representing against a represented landlord.  The information provided in the case decisions that constitute the data set is not sufficient to make a meaningful assessment of the particular relationship between one-sided representation and fairness of process or outcome, but it seems reasonable to say that there is at least a possibility the mere fact of being on the unrepresented side of a one-sided representation dynamic is an unfair disadvantage and that, in turn, tenants are bearing a heavier burden of that disadvantage.

One basis for a potential disadvantage of a one-sided lack of representation is a difference in capacity to effectively manage and participate in the hearing itself. But another potential disadvantage exists in the recognition that, generally speaking, it could be expected that a represented party will be better prepared for a dispute resolution process than a self-represented party.   Moreover, relative differences in degrees of preparation may also be a factor in other types of head-to-head representation dynamics that, on their face, do not seem so potentially unfair to tenants.  For instance, the data reveals that, of the 70% of cases where a landlord was represented, 20% of tenants were represented by duty counsel. On its face, the presence of duty counsel would be expected to contribute to leveling the playing field for the tenant.  However, it is important to recognize that duty counsel is often only involved at the 11th hour of disputation.  The last-minute involvement of duty counsel is no doubt significant and valuable, but there is only so much that duty counsel can do to compensate for any lack of preparation by tenants who, until the day of their hearing (and contact with duty counsel), will often have been managing the matter, for better or worse, on their own.

By the same token, it must be acknowledged that there are other forms of assistance available to tenants aside from day-of-hearing representation.  In particular, community legal clinics in the Eastern Region, as well as other community-oriented organizations like Ottawa Housing Help and the Housing Justice Project, regularly provide summary advice to tenants on residential tenancy disputes and so a proportion of tenants who are self-represented at the LTB, as well as some who have duty counsel assistance, will nevertheless have had the benefit of a certain level of pre-hearing advice.  In turn, that advice may enable some tenants to more meaningfully prepare for and participate in a hearing (and related processes, such as mediation).

Next Steps

This preliminary analysis, now spanning a fifth year of data, and the tentative conclusions it suggests, raise concerns about the broader impact of paralegals and the emphasis on access to justice associated with them.   As stated in the interim research update, to the extent that paralegals are presented as a means for access to justice in residential tenancy disputes, this preliminary analysis indicates a need to more fully explore and assess who provides legal services, whose legal needs are met by those services, and whether, or to what extent, meeting those needs counts as meaningfully improving access to justice.

At this point, this research project is focusing on a deeper analysis of the data and to consideration of other sources of information that can assist in developing as clear a picture as possible of not only the role of paralegals but also other aspects of access to justice in the residential tenancy dispute system.   This further analysis includes an exploration of the results of the Cost of Justice project survey of everyday legal problems.

David Wiseman is a Cost of Justice Research Alliance member and an Assistant Professor in the Faculty of Law, University of Ottawa.  Find out more about the Cost of Justice Project here: http://www.cfcj-fcjc.org/cost-of-justice

Everyday Legal Problems and the Cost of Justice in Canada

The Canadian Forum on Civil Justice (CFCJ) is thrilled to annouce the publication of three papers from our SSHRC-funded “Cost of Justice” research project. These papers are based on findings from the CFCJ’s Everyday Legal Problems and the Cost of Justice in Canada survey, the first national survey in almost ten years to measure the frequency and ways in which members of the Canadian public experience everyday legal problems. It is also the first survey of its kind to explore what these problems cost, not only in dollars, but also to the state and to the physical and mental health of the public who use our justice system.

These papers — Everyday Legal Problems and the Cost of Justice in Canada: Overview Report by Trevor C.W. Farrow, Ab Currie, Nicole Aylwin, Les Jacobs, David Northrup and Lisa Moore, Design and Conduct of the Cost of Justice Survey and the Everyday Legal Problems and Cost of Justice: Survey (Cost of Justice Survey) are available on the CFCJ website here.

The Resolution of Legal Problems in Ontario

Results from the CFCJ’s 2014 study on the civil legal needs of Canadians indicate that most Ontarians do not obtain formal legal advice when faced with a legal problem. One might conclude that this is because the cost of obtaining lawyers has become too expensive, yet the research findings suggest otherwise. In “The Resolution of Legal Problems in Ontario”, Mathew Dylag indicates that perception and an understanding of what is at stake may be more likely indicators of whether individuals will seek out formal legal advice. To learn more about the legal consumer habits of Ontarians, read Matthew’s paper here.

The Data Deficit: The Case for Improving Court Records for Future Access to Justice Research Fact Sheet

In 2015, as part of the SSHRC-funded “Cost of Justice” project, the CFCJ conducted a study of 495 civil, non-family cases filed in the BC Supreme Court that appeared to lack resolution through court processes. The resulting “Civil Non-Family Cases Filed in the Supreme Court of BC, Research Results and Lessons Learned” report highlights several challenges related to this type of access to justice research including, the inability to contact claimants, limitations related to the currency and completeness of court records and difficulties extracting an appropriate sample of cases. As a follow-up to the findings in this report, the CFCJ has produced a fact sheet that provides an overview of some of these challenges and recommendations for  improvements. “The Data Deficit: The Case for Improving Court Records for Future Access to Justice Research” fact sheet is posted on the CFCJ website here.

Rural and Remote Access to Justice Infographic

The Canadian Forum on Civil Justice, in consultation with the Rural and Remote Access to Justice Boldness Project, has created an infographic based on some of the key findings from the Rural and Remote Access to Justice Literature Review. This infographic provides an overview of the unique access to justice challenges experienced by Canadians in rural and remote settings and presents several recommendations for improving access to legal services and information in rural and remote areas. The Rural and Remote Access to Justice infographic is published here.

Paths to Justice and the Resolution of Consumer Problems

As a part of the CFCJ’s SSHRC-funded Cost of Justice project, Dr. Les Jacobs, David Kryszajtys and Matthew McManus examined the ways that Canadians try to resolve their consumer problems. In particular, their research looks at patterns in the decision to access the formal legal system to resolve one or more consumer problem, based on ethnicity, level of education and income. The data used for this study comes from the CFCJ’s nationwide Everyday Legal Problems and The Cost of Justice in Canada survey. Read Paths to Justice and the Resolution of Consumer Problems: Findings from the 2014 Everyday Legal Problems and the Costs of Civil Justice in Canada National Survey in full here and view slides from a recent presentation on Everyday Consumer Legal Problems, posted on the CFCJ website here.

Access to Justice Advocate – Marian MacGregor

Much of the work that is being done to improve access to justice for Canadians comes down to access to justice advocates. As a part of our efforts to highlight the diverse range of individuals working across the access to justice landscape, the Canadian Forum on Civil Justice is resuming our Access to Justice Advocates series, a vlog that presents profiles of people who bring unique perspectives and make valuable contributions to the issue of access to justice in Canada.

We are thrilled to resume our Access to Justice Advocates series with Marian MacGregor, Adjunct Faculty Member at Osgoode Hall Law School and Clinic Director at the Community & Legal Aid Services Programme (CLASP).

CLASP is a legal clinic located at Osgoode Hall Law School that provides free legal assistance to persons with legal problems who cannot afford a lawyer. CLASP was established in the 1960s and since then, they have helped myriad low income Torontonians with problems related to Family Law, Criminal Law, Employment, Human Rights, Criminal Injuries, Compensation and Disability. As Clinic Director at CLASP, Marian MacGregor sees firsthand the access to justice challenges that many Ontarians face. She is very passionate about her work in the community legal clinics system and recently, we sat down with Marian to discuss her motivation, her work at CLASP and, some of the pervasive access to justice issues that she’s encountered.

View our full interview with Marian MacGregor here.

The Legal Health Check-Up Project Is Growing

The Legal Health Check-Up (LHC) project that was developed by the Halton Community Legal Service (HCLS) is expanding to an additional twelve community legal clinics in southwestern Ontario.  The new clinics include: the Chatham-Kent Legal Clinic, Community Legal Assistance Sarnia, Elgin-Oxford Legal Clinic, Huron-Perth Community Legal Clinic, Justice Niagara, Legal Assistance of Windsor, Neighbourhood Legal Services (London and Middlesex) Inc, Waterloo Region Community Legal Services, Windsor-Essex Bilingual Legal Clinic, Hamilton Community Legal Clinic, Legal Clinic of Guelph and the Brant Haldimand and Norfolk Community Legal Clinic. The clinics in Hamilton, Brant and Guelph have been developing their own LHC projects since late summer 2015. These three early adopters have made great progress in establishing partnerships with intermediary groups and in developing collaborative arrangements with them.  The other nine began their work with an ‘innovation lab’ meeting on January 29, held at the McMaster Innovation Park in Hamilton. Participants from the Halton, Hamilton, Guelph and Brant legal clinics shared their experiences with the nine new adopters. Some of the main topics of discussion included: recruiting intermediaries, monitoring and data collection and using the LHC questionnaire.

The expansion of the LHC is part of the LAO Transformation Process which is designed to strengthen the capacity of community legal clinics. It is also anticipated that the expansion of the LHC approach will create an exciting learning environment over the coming year. The LHC approach that was developed by the HCLS is not a template to be replicated as is but, rather, a model to be adapted to the service delivery environment in each of the individual clinics. The expansion should encourage innovation and creativity rather than imitation. Each of the twelve adopting clinics will develop their own approach within the goals that define the fundamentals of the LHC approach, which can be summarized as: achieving greater outreach, increasing the numbers of people served and, devising holistic and integrated approaches to meeting the legal needs of the poor. The implementation process in the adopting clinics and the continuing work in Halton will create a wealth of comparative information. This body of knowledge will address the different ways in which the clinics produce broadly similar outcomes, including the serendipitous discoveries and unanticipated consequences that arise from any implementation process. Giving credit where it is due, this is a wise investment in innovation by Legal Aid Ontario which will enrich the LAO community clinic system and legal aid in general.

Checking In on the Halton Legal Health Check-Up Project: Internal and Collateral Developments

The Legal Health Check-Up Project (LHC) developed by Halton Community Legal Services (HCLS) is pioneering an intermediary partnerships approach to legal aid delivery. The LHC form is a tool for Halton’s community-based intermediaries to identify and respond to everyday legal problems experienced by their clientele.

Legal problems are identified during the course of standard interactions between intermediary partners and the people they provide service to as a part of their professional mandate. These exchanges may occur in a variety of settings, for example, a church carrying out its pastoral work, a regional family health service, an employment service or a multicultural services agency.  In addition to problem spotting, intermediaries also refer clients with justiciable problems to legal clinics. During the pilot phase of the LHC Project the roles of intermediaries developed to also include a variety of tasks with HCLS aimed at addressing clusters of multiple legal and non-legal problems.

There is a natural and logical basis for the partnerships between intermediaries and HCLS.  Through discussions with clinic management and staff, and community residents, intermediaries gain exposure, understanding and a greater perspective of everyday legal problems, in particular as relates to the ways that legal problems derive from life’s everyday problems. Conversations surrounding these types of problems often arise during encounters with intermediary organizations.

Additionally there is increased awareness of problem clusters and the manner in which non-legal and legal problems combine in seemingly intractable ways.  On a practical level, there is an understanding that there is help available for the intermediary/service provider from the clinic when there are legal aspects to the problems that they are trying to solve for their clients.  Intermediaries often come to the realization as well that legal problems are not exclusive to the domain of courts and lawyers but rather, they are a part of daily life and, by extension, the areas in which they work and provide assistance. The intermediary partnership approach is a means of outreach t that assists with legal aid delivery.

Outreach has increasingly become recognized as an important tool that contributes to identifying legal problems experienced by the general public, and for addressing legal needs. This approach is based on findings from present-day legal problems research that indicates a high prevalence of serious legal problems among the public that are often not recognized as legal in nature, and for which individuals do not seek help until the situation escalates.

The partnership approach also contributes to the integrated and holistic nature of the HCLS delivery model, two facets of legal aid delivery that are now recognized as essential for the legal needs of the public to be met effectively. Achieving this means that clinic lawyers and community legal workers have to become what one intermediary described as “a new kind of lawyer,” one who is prepared to go beyond the law to understand the complexity of poverty and deal with the reality of the lives of the disadvantaged.  Intermediaries, particularly bureaucratic service providers, have to move beyond the single mandated service orientation with which the poor are constantly confronted, toward an openness to address a wider breadth of problems, and to offer help.

Following the pilot phase of the project, the LHC is moving in both internal and collateral directions. Internally, more intermediary partners are being brought into the network of access to justice services that are increasingly available through the LHC project. In addition, a web-based, supported self-help approach is being developed to assist both intermediaries and the larger numbers of clients requesting assistance.

The HCLS model is being adopted by three neighbouring clinics: in Hamilton, Guelph Wellington and Brant Haldimand Norfolk.  Rather than simply replicating the model developed by the Halton clinic, these three clinics recognize that innovation necessitates more than simply adopting the Legal Health Check-Up in a box. Instead they are adapting the project to their respective communities and needs.  The key is not the LHC tool but rather the conversation that the tool initiates between intermediaries and clients.

The Legal Aid Clinic of Guelph and Wellington County is concentrating on developing intermediary partnerships in the more rural parts of the service delivery area. This is an important challenge. Developing partners in less resource-rich rural areas is a critical aspect of extending the reach of legal aid. An initial idea is to build supported partnerships with well-connected individuals in the area as well as with service organizations. In Guelph and Wellington the focus is also on developing a seamless approach that allows for the exploration of different avenues to combat poverty and effect real change. In addition, the Hamilton Community Legal Clinic is working on establishing more community relationships with intermediary partners as a means for smoother and more consistent service delivery. Hamilton has also emphasized the need to develop more integration among intermediaries. This move lends itself to a strong network of access to justice services and, better access to these services overall, a primary goal of other clinics. The Brant Haldimand Norfolk Community Clinic, like the other clinics, is developing relationships with community-based intermediaries. They describe the ideal approach as one that entails being with the client from the initial point of contact to a point where they have made significant steps toward getting the assistance that they need – the essence of a different kind of lawyer.

The expansion to the three neighbouring clinics promises an important new step in the learning process.  As mentioned above, HCLS will continue to develop and refine their model. The Hamilton, Guelph Wellington and Brant Haldimand Norfolk legal aid clinics will undoubtedly develop a wealth of knowledge as they explore legal needs and community capacity in their respective communities. The exchange of information and the lessons learned among the four legal aid clinics will add an important dimension to the development of the intermediary partnership/legal health check-up approach and expanding access to justice.

Rural and Remote Access to Justice A Literature Review

The Canadian Forum on Civil Justice is thrilled to have partnered with the Rural and Remote Access to Justice Boldness Project to produce “Rural and Remote Access to Justice A Literature Review”. This seminal document presents an extensive look at the current trends, gaps in research, and promising practices in legal service delivery related to rural and remote areas. Additionally, this review explores how “rural and remote” is understood, the access to justice challenges and opportunities in rural and remote areas, compared with their urban counterparts, and the types of issues experienced in rural and remote communities in different provinces and countries.

The Rural and Remote Access to Justice Literature Review is accessible in full here.

The Organisation for Economic Co-operation and Development and Access to Justice

The Organisation for Economic Co-operation and Development (OECD) has begun examining the potential of legal aid to help reduce poverty and, more broadly, its impact on economic development. The OECD recently convened two expert roundtables on equal access to justice— the first meeting focused on research and literature relating to various aspects of the cost of justice and the costs of inaccessibility to legal aid and services. CFCJ Chair, Dr. Trevor Farrow gave an access to justice presentation at the first roundtable on October 7, 2015; the details of Dr. Farrow’s presentation were included in the CFCJ’s October Newsletter The second meeting, held on December 1, 2015, focused on the reach of legal aid in different countries, its impact and  other factors affecting  the role of access to justice in poverty reduction.  Dr. Ab Currie, Senior Research Fellow at the Canadian Forum on Civil Justice, attended the expert roundtable held in December. The December meeting was also attended by Canadian Forum on Civil Justice Board member, Dr. Melina Buckley, who was representing the Canadian Bar Association. Below, see some thoughts from our Senior Research Fellow, Ab Currie, on the OECD meetings and their approach to access to justice.

This new level of discourse on access to justice by the OECD, and a potential move towards increased support for programs that improve access to justice is very encouraging to the global A2J community There is a large body of empirical evidence that demonstrates that disadvantaged and poor members of society benefit from legal assistance., Nonetheless, as Alan Houseman and Eliza Minoff point out (The Anti-Poverty Effects of Legal Aid, Public Welfare Foundation, 2014), research must go beyond studying case outcomes in order to understand the impact of legal services on the poor. Many current discussions about access to justice propose a shift in our collective thinking about how people access legal information and the way in which legal services are delivered so that they can offer more and wider-reaching benefits for disadvantaged people. This means that building a business case for legal aid is not a straightforward process. Additional research will be needed to determine the impacts and reach of new forms of legal aid, in particular as affect the poor and broader economic growth. . Proponents of access to justice will have to build the political case as well as the business case. With the OECD’s increased involvement in the global discourse on access to justice, it is anticipated that they will be able to play a role in the development of the innovations in legal aid that will be required.

The OECD has embraced a people-centred approach and narrative in addressing access to justice problems and services. They are primarily focused on the point of view of people experiencing problems and interacting with justice systems rather than the point of view of the justice system itself. This approach to understanding legal need will provide organizations such as the OECD, that are taking a fresh look at the problem, with a framework that underscores the essential  role of innovation for expanding access to justice services.

2 Days in #a2j Innovation Bootcamp: Family Justice Design Workshop in Whitehorse, YT

Last month, the Winkler Institute for Dispute Resolution, the Canadian Forum on Civil Justice, Yukon Courts, and the Yukon Department of Justice collaborated to host an innovative family justice design workshop in Whitehorse, YT.

Drawing on social lab theory, design thinking, and communications theory, a2j dynamo Nicole Aylwin led a diverse group of family-justice-system stakeholders through 2 days of brainstorming and prototyping, all with minds set on improving the experiences of clients in the family justice system through strengthening the networks between service providers.

By the end of the workshop, we had identified 2 promising pathways for further work.

The paths themselves are not unique to our jurisdiction: over the course of 2 days, family-justice-system stakeholders agreed that we have #advicemaze problems and #courtformsproblems.

What 2 days of #a2jInnovationBootcamp with Nicole shifted was our perspective on how to approach #a2jproblems TOGETHER. Our biggest take homes:

  • A 1-way street approach (i.e. 1 solution developed mainly with service provider needs in mind) isn’t the only approach;
  • A 2-way street approach (i.e. solutions – plural – that are developed by incorporating the perspectives and input of users of the system throughout each step of the process, including testing!) can be more useful when it comes to #a2jproblems;
  • It is important to give small solutions a go; and
  • Failure is a-okay, and potentially even a useful learning tool.

We are grateful to Nicole, and to all of the individuals who took time out of their busy schedules to attend our  lab, especially to our former-family-justice-system user who bravely joined our group and very generously and openly shared her knowledge and experiences. We are also grateful to the Yukon Department of Justice, Court Services branch for supporting this experimental and experiential learning event!

Guest A2J Blog: Law Students Tackle Access to Justice Crisis from Small Business Perspective

The Law Society of British Columbia, the Canadian Bar Association, and the Chief Justice of Canada all agree – there are serious deficiencies with access to justice in this country. Nearly 12-million Canadians will experience a legal issue within the next three years, and approximately half of them will attempt to solve these problems on their own, with little or no legal assistance.

The implications of this for Canadians form the basis of studies like the Canadian Forum on Civil Justice’s Cost of Justice Project. Nonetheless, in the national conversation about access to justice, we tend to focus on the limited availability of legal aid for criminal and family litigants. This is indeed a serious problem, but it is surprising how little attention is focused on business law, an area where (at least in British Columbia) there is no legal aid at all.

Small businesses will, almost by definition, experience some legal issues in getting off the ground. Business owners, however, tend to get less sympathy than other individuals. Those who are in business, we assume, will have sufficient income to cover their legal expenses. Sadly, this assumption is often incorrect. Many aspiring businesspeople are living in poverty, and the complex web of rules and regulations imposed upon new startups can prevent talented people from going into business in the first place.

Fortunately, there is an opening for law students to become part of the solution.

“There is no question that now is the time to look to Canada’s law students to help meet the growing gaps in access to legal services,” wrote Nikki Gershbain, the national director of Pro Bono Students Canada. “Law student pro bono not only helps ordinary Canadians access the legal system, it trains law students to be more sensitive, compassionate lawyers and creates a generation of lawyers primed to using their legal skills to make a difference in their community.”

At the University of Victoria, the Business Law Clinic provides a legal assistance program specifically for small businesses. Although the students themselves are located in Victoria, the Clinic accepts inquiries from around British Columbia. In many cases, the inquiries are simple yet crucial, and a few hours of general research by a law student can mean the difference between success and failure for a new business.

Law students and prospective law students who are interested in being part of the solution can visit the Business Law Clinic’s website, or contact its director, Michael Litchfield, by email at thinklab@uvic.ca.

Jeremy Maddock is a law student at the University of Victoria, and publisher of CharterCases.com, a legal information resource. He can be reached by email at jeremymaddock@hotmail.com.

LawMatters at Your Local Public Library; A History of BC’s Program for Public Legal Information and Education in Public Libraries

This article, written by Janet Freeman, Courthouse Libraries BC LawMatters Program Coordinator and Nancy Hannum, LawMatters Program Consultant, charts the growing role of public libraries and public librarians as partners in access to justice. It includes a timeline of recommendations for an increase in legal information materials in public libraries and more training for public librarians, that subsequently shaped the current public legal education and information service in BC’s libraries. This history references the 1975 Law Commission Report, the 1974 British Columbia Justice Development Commission Report, the 1975 Legal information Services Program (LISP), the Public Library Program (PLP) and the Legal Resource Centre (LRC). Read about the success of this unique program and how British Columbia became the first jurisdiction in Canada (and possibly the English-speaking world) to develop an ongoing program to help public libraries provide legal information to the public from Janet Freeman’s and Nancy Hannum’s LawMatters article.

LawMatters at Your Local Public Library; A History of BC’s Program for Public Legal Information and Education in Public Libraries was published in November, 2015 by the Canadian Forum on Civil Justice and is accessible on the Forum’s website here: http://cfcj-fcjc.org/clearinghouse/public-legal-education-and-information-plei

Integrating Innovation from Other Jurisdictions: Thoughts From the Innovation and Access to Justice Conference

The A2J debate in Canada and the U.S. includes many perspectives on the challenges of accessing a range of legal services and aid, and offers any number of potential solutions. While my role as Communications and Research Assistant with the Canadian Forum on Civil Justice has, in many ways, provided me with an online platform to discuss issues surrounding A2J in Canada and the U.S., and to learn about the many challenges to legal aid service delivery, on October 1st and 2nd, the inaugural Innovation and Access to Justice Conference provided me with an entirely different platform to engage in conversations surrounding A2J issues: social labs, workshops, panel discussions and one-on-one, in-person dialogues.

Of the many burning questions I sought answers to, one in particular stood out. Before leaving for the conference, a man at the subway station asked me for directions. Normally, I respond with the best directions that I can and go on my way. This time, however, I struck up a conversation with him. I soon learned that he was traveling from Toronto to Barrie to support a friend in court. By way of justification for his travel, he added, “what are you going to do? He’s a friend.” The question at the forefront of my mind as the Innovation and Access to Justice Conference got underway stemmed from this conversation at the subway station: why is going to court so stressful that someone would require support from a friend? I wanted to know how the dispute resolution system can be changed so that Canadians engaged in disputes might be able to resolve their problems before going to court. And, in circumstances where court is necessary, how can the process be made less stressful and more informative?

The Innovation and Access to Justice Conference provided an opportunity for lawyers, researchers and A2J stakeholders from all over the country to share information about initiatives aimed at resolving access to justice issues. The conference was also a forum for discussion, and a source of inspiration stemming from A2J practices being used by other jurisdictions, provinces and countries. The message was clear: organizations are designing creative and user-focused ways of implementing new ideas in the Canadian legal landscape. Over the span of two days in Montreal, I learned first-hand how Canadian organizations are incorporating innovation in their respective provinces and into the justice system.

Two organizations in particular, MyLawBC and the Legal Information Society of Nova Scotia (LISNS), have looked to inspiration outside of Canada and successfully integrated it into their respective provinces.

Recently, MyLawBC, a website funded by the BC Legal Services Society and designed to help individuals work through their legal issues, partnered with the Hague Institute for the Internationalization of Law (HiiL) to create their own version of the Dutch Rechtwijzer (“Signposts to Justice”). The purpose of the website is to create a guided pathway for users— a roadmap for diagnosing a legal problem and determining an appropriate solution by answering a series of questions.

The website, to be released early next year, is designed the same way as Rechtwijzer – users can create their own separation agreements and communicate with other parties through an online chat function while they do so. Rechtwijzer currently offers mediation and adjudication for a fee if users get stuck on an issue. MyLawBC won’t offer mediation and adjudication services at the outset but it could be implemented later on if the website is successful.

The first round of user testing for this new initiative took place in February of this year followed by a second round of testing this past summer. Although MyLawBC has learned from Rechtwijzer that a guided pathways website for family law disputes does work, the user testing was completed to ensure that the website would function in the same way in British Columbia. Taking that into consideration, it remains to be seen how British Columbians will react to MyLawBC’s new website. People have different preferences with regards to how they receive and access legal information. This initiative by MyLawBC provides a viable alternative in the online world. By centralizing the information and resolution process, MyLawBC has created a stress-free system for users. If parties are able to determine their own legal solutions, then there will be little need for them, let alone their support persons, to resolve the issue in the courts. For the man traveling to Barrie, this could mean that he might not have to make the trek to support his friend in court at all.

Similarly, the LISNS has looked abroad for innovative strategies that can be adopted to help to increase its influence in Nova Scotia. They have drawn inspiration from English legal practice, McKenzie Friends, as well as the Court Navigator Program in New York State courthouses.

LISNS has taken a different approach to improving the dispute resolution process. Unlike MyLawBC, the programs being implemented in Nova Scotia assist people who will be going to court. In this way, the LISNS addresses the difficulty with which people resolve their legal problems through the legal system. For LISNS, it has not gone unnoticed that there is an increasing number of people representing themselves in court, for whom a support person can provide emotional support, if not, some minimal legal support.

Courts are often inaccessible both physically and due to a number of barriers, ranging from language to cost. MyLawBC and the LISNS have seen some success at adopting and adapting innovative foreign practices into the Canadian justice system landscape, which have provided important benefits for Canadians. These successes offer proof that there are ways that the dispute resolution system can be changed to become less stressful, more informative, and also offer alternatives to going to court.

The Global Study on Legal Aid

The United Nations Development Program and the United Nations Program on Drugs and Crime recently launched a worldwide study on legal aid. The study recognizes the significant role legal aid can play in securing people’s rights and entitlements, obtaining redress for grievances and ensuring proper criminal defense. The importance of legal aid was recognized by the member states of the United Nations in 2012 with the release of the United Nations Principles and Guidelines on Access to Legal Aid in Criminal Justice Systems in 2012 and, more broadly, by the right to equal access to justice for all in the Declaration of the High-level Meeting of the General Assembly on the Rule of Law at the National and International Levels, also in 2012. The Declaration focused on providing access to justice for all, including legal aid.

The global legal aid study will collect information by means of a general questionnaire that is structured to accommodate for significant differences in the social environments and justice systems of countries, and the differences among jurisdictions, within federal states such as Canada. Further, the focus is more on how legal aid supports access to justice than on a descriptive account of operations and services. Ab Currie, Senior Research Fellow at the Canadian Forum on Civil Justice, was invited to be one of the respondents for Canada.  The results of the global legal aid study will be summarized on the CFCJ website when they become available.

Need a Divorce? Wevorce will help you do it online!

We all know someone who is divorced, divorcing or thinking about it. For most, it is a profoundly unpleasant emotional experience. While it is important to recognize that a divorce is a complex process involving a vortex of emotions, a divorce is also a legal process. For couples looking to “uncouple,” the traditional legal dissolution of a marriage presents many difficulties including high costs and time-consuming procedures. Fortunately, the recent emergence of online divorce services such as Wevorce, indicate that the process of obtaining a legal document which declares an end to one’s marriage may be more difficult than necessary.

Before delving deeper into the philosophy behind Wevorce, it is worth noting that this upsurge in online divorce services has come at a time during which there has been a call for reform in legal services and accessible justice. In Canada, the Final Report of the Action Committee on Access to Justice in Civil and Family Matters has brought attention to the need to implement change in the area of family law. The report makes several specific recommendations for improving the family justice system such as employing less adversarial resolutions and taking more holistic approaches to legal issues. In response to these calls for reform, several innovative projects are attempting to rethink the family justice system in a way that puts the user at the heart of the experience. For example, the Winkler Institute’s Family Justice and Mental Health Social Lab aims to develop a prototype that will benefit clients in the family justice system who have low incomes and mental health issues. Against this backdrop, Wevorce –a San Francisco-based company that is a leader in the online divorce services industry— offers an interesting and innovative model that rethinks the way family justice can be provided in divorces.

Wevorce was launched in 2013 with the purpose of settling divorces without hefty legal fees and custody battles. The site uses computer software to engage couples in online alternative dispute resolution with lawyers and other professionals to promote more amicable divorces. Wevorce primarily uses technology to make the process more convenient. Instead of meeting for negotiations and planning, spouses can simply log on to their iPads, computers or smart phones to virtually interact with their Wevorce team. These arrangements are particularly geared towards spouses who are living in different areas. With this unique platform, Wevorce situates itself, and is able to compete with four prominent divorce service websites in the United States. It is one of the least expensive options. The following information was taken from the Wevorce website:

  • $ DIY Divorce. This option is the cheapest way to divorce. If you have been married for a very short time, perhaps fewer than four years, have no children, do not own any property, have very few marital assets and agree with your spouse on pretty much every aspect of your divorce, you can probably get away with a do-it-yourself divorce and pay only the filing fees. Typical costs are less than $500 per couple. Some courts have inexpensive DIY packets you can purchase that include detailed “how to” instructions from how to fill out the paperwork with your agreements to waiting periods to the process necessary to finalize the divorce, though many people find the number and scope of forms dizzying.
  • $$ Mediated Divorce. Professional mediators charge an average of $300 per hour, per couple. If you and your spouse have only a few issues to hammer out, you may need only one or two mediation sessions. Couples with more complicated estates or child residential schedule issues will need more time with their mediator and will pay more. Typical costs are $2,500 to $5,000 per couple.
  • $$ Wevorce Divorce. Wevorce couples pay an upfront fee and receive a shared attorney-mediator and access to a team of professionals, including financial and parenting experts. Depending on your situation — the length of your marriage, your parenting situation, the size of your marital estate, the number of sticking points between you and your spouse — you will pay between $3,000 and $15,000 per couple, for a Wevorce divorce. The typical cost is $4,500 per couple.
  • $$$ Collaborative Divorce. Cheaper than a traditional litigated divorce, the collaborative divorce still includes two attorneys and allied team professionals, so it is a more expensive option than a mediated or Wevorce divorce. Typical costs are $15,000 to $25,000 per couple.
  • $$$$ Adversarial (Litigated) Divorce. Typically, this divorce is the most expensive. The average adversarial divorce in the U.S. costs between $20,000 and $40,000 per couple. However, these costs can rise dramatically for couples with high levels of conflict. Consider that each attorney will charge an average of $350 per hour and then factor in the time it takes each attorney to prepare for the initial hearings, conduct a formal discovery process, attend meetings with the other lawyers, gather expert opinions, draw up a settlement and come to a formal agreement (Read the full text from the site here).

In the article, New Website ‘Wevorce’ Eases Grueling Divorce Process, ABC News explains that “[although Wevorce]… can’t save your marriage, they can save you time and money” – a message clearly relayed by these comparisons.  The company’s co-founders, Michelle Crosby, a former lawyer, and Jeff Reynolds, a marketing executive, created a 5-step process which make this a reality.

In the Wevorce model, divorcing couples come together under the direction of a lawyer-mediator, known as a “Wevorce Lead Architect.” The Architect is responsible for organizing meetings with financial, mental health and parenting experts. This process is generally tailored to each couple’s individual needs. For instance, couples with children will be guided through a process of developing their own estimate of how much each aspect of childcare will cost. In “Foundation Building Meetings,” couples are paired with specialists to learn how to communicate better and maintain peaceful interactions In “Parenting Planning Meetings” couples learn about creating a healthy family environment for children and, in “Financial Mapping Meetings” couples assess and separate family assets. For those with special circumstances for example, couples going through a divorce while one partner is in the military, or parents of children with special needs, there are separate programs, guides and experts available to assist with overcoming case-specific challenges. At the program’s end, couples are involved in “Document Prepping” to ensure that the final agreement is up to legal standards and they are also assisted with the filing of any court papers, if needed.

From an access to justice standpoint, there are clear benefits to using Wevorce. As aforementioned, Wevorce’s technology component saves time and money which is significant bonus for busy or middle-class families. Moreover, Wevorce enables individuals to take more control of their divorce which would normally be a largely lawyer-controlled process. Participants are more aware of where their case stands, where it is stuck and what steps remain. Finally, the ability to involve other professionals is the perfect example of the multi-dimensional approach to delivering access to justice, suggested by the Action Committee on Access to Justice in Civil and Family Matters. Instead of segregating the legally relevant matters, other unavoidable aspects of a divorce are simultaneously dealt with, including concerns about parenting and sustainability.

The Wevorce solution is not flawless. For example, the cost of divorce is going to vary depending on each marital situation and as such, Wevorce cannot be a solution for everyone, particularly given that, as previously mentioned, the average cost of a “wevorce” is $4500. Additionally, the program requires couples’ willing participation and would be inappropriate for victims of domestic violence or those who do not feel safe in the presence of their spouse and need the protection of the legal system.

Nonetheless, Wevorce still brings accessible justice one step closer and stands as a paradigm of change. Wevorce may have its shortcomings but its founder leaves great advice for any justice stakeholders looking to implement new ideas and change the landscape of legal services: “Swing for the fences.”

Research Update: Paralegals, the Cost of Justice and Access to Justice: A Case Study of Residential Tenancy Disputes in Ottawa

Paralegals, who purportedly offer more affordable and accessible legal services than lawyers, are making a significant contribution to the resolution of residential tenancy disputes in Ottawa, but only for landlords and, increasingly, for corporate landlords.  That is the conclusion indicated by a preliminary quantitative analysis of a sub-set of residential tenancy disputes. This tentative conclusion suggests not only that who provides more affordable/accessible legal services can have an impact on whose legal needs are serviced but also, and more fundamentally, whether access to justice is really being improved in this context at all.

As introduced in a previous CFCJ blog post, this research project aims to identify the role of paralegals in the Ontario residential tenancy dispute resolution system and to analyze their impact on the cost of justice and access to justice, especially for low-income tenants.  The impetus for this study is two-fold.  First, in the face of a perceived ongoing crisis in access to justice, increasing emphasis is being placed on the potential of paralegals to offer affordable, efficient and effective legal assistance to people with unmet legal needs.  In other words, paralegals may provide a means for re-configuring the costs of justice and thereby improving access to justice.  Second, anecdotally-reported experiences of participants in a Housing Justice Project, a joint-initiative of the Faculty of Law at the University of Ottawa and ACORN Ottawa that provides assistance to low-income tenants, indicated that paralegals are playing a significant role in the residential tenancy dispute system, but more for landlords than for tenants.

Against this background, this research project has gathered and begun analyzing all reported decisions (on CanLII) of the Ontario Landlord and Tenant Board for the Eastern Region (which includes hearings in Ottawa, as well as in Kingston, Brockville and other smaller communities) for the four years preceding commencement of the research (mid-2009 to mid-2013).  Since many claims do not reach the decision stage, and since only a modest proportion of decisions are reported, the total number of decisions gathered is only a small sub-set of the total number of claims filed with, and resolved through, the LTB for the Eastern Region.  The decisions included claims filed by both landlords (typically for eviction) and tenants (typically for maintenance and, relatedly, rent abatements).

While analysis of the decisions is ongoing, the following tables provide comparative data (2009-10 and 2012-13) on the prevalence of the different types of representatives that are permitted to appear before the LTB, as well as self-representation, for landlords and tenants.

As can be seen, for tenants, the prevalence of the different types of representatives remained similar as between the two years, with paralegals playing only a marginal role (≤1%).  It is worth noting though that self-representation is high among tenants (>60) and, perhaps troublingly, there are indications of an increase in self-representation (from 62% to 69%) that corresponds to decreases in prevalence of duty counsel (19% to 13%) and lawyers (11% to 8.5%).

For landlords, a key difference in prevalence of the different types of representatives is the seemingly significant increase in the role of paralegals, from 20% to 28%, as between the two periods.  This appears to have come about through a matching decrease in reliance on non-legal representatives (from 29% to 20%).  Since non-legal representatives are typically employees or agents of corporate landlord entities, this suggests that corporate landlords are the main beneficiaries of the increased prevalence of paralegals in the residential tenancy dispute system.

While it must be emphasized that this analysis is preliminary, it suggests some troubling tentative conclusions about the relationship between paralegals and access to justice, at least in the context of residential tenancy disputes.  To begin with, it would appear that paralegals are not sufficiently affordable or accessible to be a viable option for tenants and so offer no direct access to justice improvements to tenants.  Next, while it would appear that paralegals are sufficiently affordable or accessible and, presumably, are also sufficiently effective, to be an increasingly attractive option for meeting the legal needs of corporate landlords, it is not clear that this counts as an improvement in access to justice, because it might be doubted whether corporate landlords were suffering any particular deficits in access to justice.  Or, even if this counts as an access to justice improvement to some degree, it may not be the only nor the most pressing improvement to deliver in this context. Moreover, and finally, to the extent that corporate landlords are benefitting from increased use of paralegals, there is the danger that this may be coming at the direct cost of tenants who, whether represented or not, may be facing more effective opponents.  Any such detriment to tenants may amount to a decrease in their access to justice.

All told, this preliminary analysis and the tentative conclusions it suggests raise concerns about the impact of paralegals and the emphasis on access to justice associated with them.   To the extent that paralegals are presented as a means for access to justice in residential tenancy disputes, this preliminary analysis indicates a need to more fully explore and assess who provides legal services, whose legal needs are met by those services, and whether, or to what extent, meeting those needs counts as improving access to justice.  As this research project continues, these issues will remain a key focus.

David Wiseman is a Cost of Justice Research Alliance member and an Assistant Professor in the Faculty of Law, University of Ottawa.  Find out more about the Cost of Justice Project here: http://www.cfcj-fcjc.org/cost-of-justice

 

Access to Justice Projects at The Law Commission of Ontario

From our inception in 2007, the Law Commission of Ontario has committed to bringing both multidisciplinary experiences and perspectives and those of different communities to bear on our work. Although our mandate is about law, we believe it is important to understand how law affects and is affected by a range of expertise, academic and experiential, depending on the particular project. In many projects, which we call “law in context” or “social justice” projects, law remains at the core of the work, but is informed by what we hear from those bringing their own skills, knowledge and experiences to our analysis and recommendations in whatever area we’re studying.

In our completed projects, we heard the voices of organizations and individuals representing older adults, persons with disabilities African-Canadians and the LGBTQ communities (in our older adults (http://lco-cdo.org/en/content/older-adults) or persons with disabilities (http://lco-cdo.org/en/content/persons-disabilities) projects or both.

The input of Spanish speakers, Chinese Canadians, people of Southeast and South Asian descent, and organizations such as OCASI representing a range of different ethnicities and cultures, contributed to our appreciation of the impact of precarious work on racialized workers, women and the intersection of the two in our vulnerable workers project (http://www.lco-cdo.org/en/vulnerable-workers-final-report), and comments from Aboriginal s, francophone, African-Canadians and Muslim women’s organizatins were among those who helped us develop our final report in family law, Increasing Access to Family Justice through Comprehensive Entry Points and Inclusivity (http://www.lco-cdo.org/family-law-reform-final-report.pdf). These are just a sample of the views we integrated into our analysis and recommendations in our completed reports, along with those of government, academics, employers, labour, service organizations, the judiciary, financial institutions, and other cultural communities, depending on the project.

In our current capacity and decision-making project (http://www.lco-cdo.org/en/capacity-guardianship), our advisory group includes experts from the College of Audiologists and Speech-Language Pathologists and the Joint Centre for Bioethics, among others representing seniors and disabilities organizations, government, the private bar and academics. And we’ll hear more diverse views, we hope, once the interim report in this project is released later this year.

Let me look to the future a bit here, too. The Board of Governors approved five new projects to begin as our current projects near completion. These projects, too, will look to various disciplines and to those who are most directly affected by the particular area of law for insights into what law requires for effective implementation or the diverse impacts it can have on different communities.

We’ve just started our project on improving the last stages of life (this isn’t about assisted death, although it may overlap as developments on that front occur), but about issues such as not treating terminally ill patients, if that is what they wish, even if death is not likely to be imminent and how palliative care is integrated into our health care system, among other issues  (http://www.lco-cdo.org/en/node/2878). This project will require the input of ethicists, health care professionals – doctors, nurses and others –, sociologists, psychologists and no doubt other specialists, as well as those who may bring their own cultural expectations about how to live this last stage of life in a way that is dignified and most meets their needs.

Also on the agenda is a project on defamation and the internet (see my blog at http://www.lco-cdo.org/en/node/2808), which while likely to be our most law-focused project, will require us to hear, for example, from the media, technology experts, those with different views about privacy and people who have been the target of defamatory comments. For a large project on the regulation of public space, we’ll want to hear from urban planners, designers, architects, among others, and those whose experience of public space raises questions of exclusion, intentionally or otherwise. Our community safety project is all about multidisciplinary or comprehensive approaches to promoting safe communities; we’ll be looking for input from youth, members of different communities, law enforcement, educators, sociologists and community organizations, for example. For redefining parentage (http://www.lco-cdo.org/en/node/2914), in addition to experts, we’ll want to hear from those who have had the greatest difficulty in forming families recognized by law, such as same sex individuals and couples.

The Law Commission of Ontario is a generalist law reform body, intended to review any area of law. Our researchers rarely begin a project with expertise in the area, whether dealing with class actions or last stages of life, and clearly have not had the experiences that many members of society will have had with the wording, implementation or application of any particular area of the law or, more broadly, with the way the law is structured. Our expertise evolves as we hear from the members of our advisory groups, learn from our commissioned research papers, consider what we hear in focus groups or read the feedback to our documents. This is an iterative process. Our interaction with a wide range of communities and expertise enriches our work and we’ll continue to improve this process in all our projects.

Access to Justice Advocate – Fiona MacCool

Recent reports have underscored the importance of innovation and imagination to the pursuit of access to justice. At the Canadian Forum on Civil Justice, we understand that such efforts come down to people – to advocates.  In an effort to spotlight the diverse range of individuals working across the access to justice landscape, we are pleased to present the Access to Justice Advocates blog series. Each month we will profile someone who brings a unique perspective and makes a valuable contribution to the issue of access to justice. Do you know an access to justice advocate? Let us know at communications@cfcj-fcjc.org.   

Fiona MacCool is the Project Manager of Your Legal Rights, an online resource produced by Community Legal Education Ontario (CLEO) to provide free legal information for people in Ontario. Fiona was previously the Project Manager of CLEONet, a precursor to Your Legal Rights. For over 10 years, she has worked as an IT project manager, software trainer, and web content developer. Fiona is passionate about helping non-profit organizations take advantage of the cost-efficient and time-saving power of the Internet to support community partnerships, share resources, and make a difference.

The Canadian Forum on Civil Justice visited the CLEO offices to speak to Fiona MacCool about her work on Your Legal Rights.

The website, which is funded by the Law Foundation of Ontario, provides practical, easy-to-find legal information produced by approximately 300 organizations across the province. Fiona discussed the importance of the Internet as a tool for getting information into the hands of people who need it the most in a tradition of transparency and justice. Your Legal Rights has become the hub for legal information in Ontario, not just service providers – demonstrating the power of the Internet in providing greater access to justice.

The full length version of the interview can be found here.

The Rule of Law in Canada: Highlights from the World Justice Project 2014 Rule of Law Index

The rule of law is a legal principle that States should be governed by law alone, and that every individual, private entity and public entity must be held accountable by the law, including the government.  The World Justice Project (WJP) – an independent, multidisciplinary organization – defines the rule of law as a system which,

  • Ensures accountability under the law
  • Embodies laws that are clear, publicized, stable and just, and which are created by a process that is efficient, accessible and fair
  • And delivers justice that is timely by competent, ethical and independent representatives.

Since 2008, the WJP has annually published a Rule of Law Index, which offers a detailed and multidimensional view of the extent to which countries around the world adhere to the rule of law principle in practice. The 2014 WJP Rule of Law Index ranks 99 countries throughout the world on 9 components of the rule of law comprised of 47 separate measures. In Canada, data is gathered by means of on-line surveys of individuals in Toronto, Vancouver and Montreal, as well as interviews with academics and other justice system specialists.

The value of the WJP rule of law index is that it makes the concept of the rule of law concrete and shows us where we might look to make improvements.  It does this, first, by defining a set of common constituent elements – factors relevant to the rule of law– and, second, by ranking countries, which score higher than Canada on comparable measures. A defining feature of the index is that it “puts people at its core by looking at a nation’s adherence to the rule of law from the perspective of ordinary individuals who are directly affected by the degree of adherence to the rule of law in those societies.”

Canada has an overall score of 0.78 out of 1.00. We rank 11th out of 99 countries included in the survey worldwide, 11th among 30 high income countries, and 8th among 24 North American and Western European countries – behind Denmark, Norway, Sweden, Finland, Netherlands, Austria and Germany. Canada ranks above the U.K., which sits at the 13th position within the regional group, and the U.S. in 19th position.

1. Constraints on Powers

Rule of Law Dimension: measures the extent to which those who govern are bound by law. It comprises the means by which government power is limited, including non-governmental checks, such as free and independent press.

Canada’s Rank: 13th

Top 3 Countries: Denmark, Norway and Sweden

2. Absence of Corruption

Rule of Law Dimension: measures three forms of corruption – bribery, improper influence by public or private interest, and misappropriation of public funds or other resources.

Canada’s Rank: 14

Top 3 Countries: Denmark, Norway, and New Zealand

3. Open Government

Rule of Law Dimension: measures the extent to which society has clear, publicized, accessible and stable laws, including whether administrative proceedings and official information is available to the public.

Canada’s Rank: 3rd

Top 3 Countries: Sweden, Denmark, and Norway

4. Fundamental Rights

Rule of Law Dimension: includes effective enforcement of laws that ensure equal protection; the right to life, liberty and security of the person; due process of law and rights of the accused; freedom of opinion and expression; freedom of belief and religion; the right of privacy; freedom of assembly and association; and fundamental labour rights.

Canada’s Rank: 16th

Top 3 Countries: Sweden, Denmark, and Norway

5. Order and Security

Rule of Law Dimension: includes three dimensions covering the various threats to order and security – crime, political violence, and violence as a socially acceptable means to redress grievances.

Canada’s Rank: 15th

Top 3 Countries: Japan, Singapore, and Denmark

6. Regulatory Enforcement

Rule of Law Dimension: measures whether regulations and administrative provisions are enforced effectively, and are applied and enforced without improper influence of public officials or private interests.

Canada’s Rank: 9th

Top 3 Countries: Norway, Denmark, and Sweden

7. Civil Justice

Rule of Law Dimension: measures whether the system is accessible and affordable, free of discrimination, and free of corruption and improper influence of public officials. Court proceedings must be conducted efficiently and may not be subject to unreasonable delays.

Canada’s Rank: 13th

Top 3 Countries: Norway, Netherlands, and Germany

8. Criminal Justice

Rule of Law Dimension: measures whether the criminal justice system is capable of investigating and adjudicating criminal offenses successfully and in a timely manner through a system that is impartial, non-discriminatory, and free of corruption and improper government influence.

Canada’s Rank: 15th<

Top 3 Countries: Finland, Singapore, and Denmark

*Factor 9, informal justice, was not ranked.

Where Canada stands in the world with regard to civil justice is of special interest. There are several factors affecting Canada’s performance in protecting and strengthening civil justice. The table below gives the scores for Canada in relation to seven components for the civil justice factor.

Table gives the scores for Canada in relation to seven components for the civil justice factor

According to the WJP index, accessibility and affordability and unreasonable delays are the most problematic aspects of civil justice in Canada. Among Western European and North American Countries the average score is 0.60 on accessibility and affordability and 0.51 on absence of unreasonable delays. Canada ranks considerably lower than Norway, the top ranking country on civil justice, with a score of 0.76 for accessibility and affordability and 0.84 for absence of unreasonable delays.

Canadian Forum on Civil Justice launches the Access to Justice Research Network

The CFCJ is pleased to announce the launch of the national Access to Justice Research Network (AJRN), an interactive and participatory online network of access to justice researchers in Canada. Coordinated by the CFCJ and supported by a generous grant from the Law Foundation of BC/Legal Services Society Research Fund, the AJRN creates a vibrant space for discussion, collaboration, and coordination of research related to access to justice (A2J).

Combining a listserv and website, the AJRN allows users to easily exchange resources, including scholarly articles, key research findings, case commentaries, best practices, policy reports, etc., while also creating an active online space for discussion and debate on A2J issues. ARJN members are invited to circulate and discuss A2J resources and research via the AJRN listserv (see below for how you can join the listserv), this material will then be posted to the AJRN website where it is organized by topic, region, and type of resource. Using this two-pronged approach the AJRN aims to create a “clearinghouse” of research, reports, policy documents, and news items, making the latest research in A2J easy to find.

Although only launched in its prototype form last month, the network already has over 40 members, and the website already contains materials related to technology and online dispute resolution, family justice, innovation, legal services delivery and alternative business structures.

Over the next several months the CFCJ will be working with partners from across the country to improve the network and increase the ability of users to share resources and coordinate with one another. We will also be working with the national Action Committee on Access to Justice in Civil and Family Matters to develop ways to use the platform to encourage collaboration and exchange among the emerging local A2J groups, and other justice stakeholders.

The AJRN responds to a growing need for a national online information sharing platform that allows justice stakeholders to quickly and easily share their knowledge of the exciting new access to justice work happening across the country. It will stimulate dialogue and knowledge exchange helping to build ties among access to justice researchers across the country and boost the impact of access to justice resources and initiatives underway in Canada.

To join the access to justice conversation, sign up for the AJRN listserv by sending an email to communications@cfcj-fcjc.org with “AJRN subscribe” indicated in the subject line. Or visit the website at www.ajrn.org.

The Action Committee on Access to Justice in Civil and Family Matters Convenes a Meeting of Provincial and Territorial A2J Groups

On March 13, 2015 the Action Committee on Access to Justice in Civil and Family Matters convened a meeting in Toronto for provincial and territorial access to justice groups. The groups, many of which were formed in response to recommendation 5.1 of the Action Committee’s Final Report (Fall 2013), met to discuss access to justice initiatives in their jurisdictions, highlight promising developments, and consider how to further collaborations and cooperation among justice stakeholders.

The meeting highlighted key issues of relationship building between local and national access to justice groups, public education and engagement, and innovation with the justice system. Discussions also included examining existing and potential groups structures, as well as the development of inclusive communication platforms and approaches to system wide A2J collaboration amongst the groups and with the public.

In preparation for the meeting, the provincial and territorial groups responded to a questionnaire prepared by the Action Committee. Some examples of the questionnaire responses include the following from: Quebec, Newfoundland & Labrador, and Nova Scotia. We anticipate posting more provincial and territorial updates as they become publicly available.

A full report on the meeting will be released this spring.

For more information on the Action Committee, visit: www.cfcj-fcjc.org/action-committee.

Everyday Legal Problems and the Cost of Justice in Canada

We are pleased to release the first fact sheet from our national legal problems survey, “Everyday Legal Problems and the Cost of Justice in Canada”.

“Everyday Legal Problems and the Cost of Justice in Canada” is a national legal-problems survey which assesses the frequency and multi-dimensional costs of everyday legal problems faced by Canadians aged 18 years and older. It is an initiative of the Cost of Justice project.

Completed in 2014 with over 3000 respondents, the survey, led by a research team including Trevor Farrow, Nicole Aylwin, Ab Currie, Sabreena Delhon, Les Jacobs and David Northrup, finds that everyday legal problems are ubiquitous in the lives of adult Canadians. These problems typically have a negative effect on the social and economic wellbeing of individuals and their families, which can potentially lead to lost productivity and considerable expense to publicly funded services and programs.

“Everyday Legal Problems and the Cost of Justice in Canada” provides critical, measurable insights about the cost of access to justice challenges in Canada. It is the first Canadian study of its kind to explore what everyday legal problems cost Canadians – not just in dollars, but in time and opportunity costs, costs to their physical and mental health, and costs to their livelihood.

The survey is part of the larger 5 year Cost of Justice project, which examines the social and economic costs of Canada’s justice system. It is guided by two questions: What is the cost of delivering access to justice? And, what is the cost of not delivering access to justice? Comprised of leading access to justice researchers investigating the various dimensions of cost across the country, the Cost of Justice project is producing empirical data that will inform the future of access to justice in Canada and abroad.

The Cost of Justice project is funded by a $1 million grant from the Social Sciences and Humanities Research Council of Canada. For more details please visit www.cfcj-fcjc.org/cost-of-justice.

 

 

 

Access to Justice Advocate – Nat Paul

Recent reports have underscored the importance of innovation and imagination to the pursuit of access to justice. At the Canadian Forum on Civil Justice, we understand that such efforts come down to people – to advocates.  In an effort to spotlight the diverse range of individuals working across the access to justice landscape, we are pleased to present the Access to Justice Advocates blog series. Each month we will profile someone who brings a unique perspective and makes a valuable contribution to the issue of access to justice. Do you know an access to justice advocate? Let us know at communications@cfcj-fcjc.org.   

Nat Paul is an Ontario Certified Teacher specializing in Inner-City Education and holds a Masters of Arts in sociology and education. He has six years of experience in social justice teaching in secondary, community college and university classrooms, where he has emphasized personal and social transformation through student engagement and empowerment. Nat is currently a Program Manager at Ontario Justice Education Network (OJEN), where he has a special interest in helping teachers create effective, thought-provoking and relevant learning experiences for their students.

The Canadian Forum on Civil Justice visited the OJEN offices to speak to Nat about his work with Ontario secondary school students, and how access to justice issues have influenced his career. Nat highlighted how education can narrow the gaps in access to justice by challenging students on their misconceptions about the legal system and teaching them to recognize the legal dimensions of problems in everyday life. At OJEN, Nat plays a key role in developing educational resources that equip students with the ability to recognize legal problems and their related possible solutions. Most recently OJEN released an Access to Justice game, which featured our very own Advice Maze infographic.

The full length version of the interview can be found here. 

 

Access to Justice, Access to Clients: Methodological Challenges in Civil Justice Research

Janet Currie is Co-Director and Principal of Focus Consultants, a Victoria-based firm that specializes in evaluation and research of PLEI initiatives and projects. She is a researcher on the Cost of Civil Justice Attrition in British Columbia’s Courts, a Cost of Justice subproject.  

High quality research is essential for the planning and implementation of effective civil justice services and programs. There is an ever-growing demand from funders for research data on questions about access to justice in civil cases, costs, timeliness, whether cases are ultimately settled and the most effective approaches for special groups like high conflict parents and self-represented litigants.

At the same time,   doing high quality research is more challenging than ever. Dillman describes some of the new barriers to engaging service users in survey research and the limitations of online methods. The telephone survey, once the gold standard, is increasingly problematic because of the difficulties involved in identifying and contacting clients who only use cell phones.

Conducting civil justice research has its own unique challenges. These involve the effective use of court records and the difficulties involved in identifying and contacting justice service users. A recent experience illustrates some of the challenges encountered when conducting a court record review and survey of claimants in civil (non-family) cases in Supreme Court in one provincial jurisdiction. The project is looking at the reasons why civil cases drop out of court, to what degree they reach out-of-court settlements and client satisfaction. Electronic court records and paper files were the primary source of data for case and claimant information.

In order to use court records, researchers have to undertake an access process which can be lengthy and time-consuming. Although these processes require the researcher to identify the types of data required for the research, in most cases this is based on a general overview with no actual knowledge of what actually exists in the electronic or paper records. In our case, it was only after research access had been approved and the paper files were in hand that we discovered how limited the data was for our purposes. There are almost no data on the claims made or the activities and outcomes of the cases – many seemed to have stopped in mid-air.  Although we expected there to be only minimal claimant contact information, there was only one file in over 500 that had this data, making it impossible to identify claimants for the survey arm of the research.

Like all administrative databases, court records are set up to meet the needs of the institution rather than the requirements of researchers. At the same time shouldn’t government-funded services have an interest in facilitating evaluation research that improves the effectiveness of practices and client outcomes? In my view, a system needs to be in place that can provide some real time “mock” data and access to expert opinion to advise researchers on what is actually going to be found in the electronic and paper records prior to starting the access application procedures. This would save the time of researchers, court staff and research access committees!

Research involving the users of justice services and programs is sorely lacking in Canada in comparison to other jurisdictions. What is the impact on long delays on access to justice and on the personal lives of individuals and families? What is the trajectory of service use and what is the most efficient delivery of services?  What is the level of settlement in family and non-family cases, what kinds of settlements are achieved and what are the determinants? Does mediation work? Why do cases drop out? Are their mixes of programs and mechanisms that lead to settlement? What about high conflict couples, self-represented litigants or those with limited resources? How do they navigate the justice system and what are the best and most cost-effective approaches to reduce cost and other burdens on clients and the courts?

All of these questions need to include the experiences and perspectives of clients themselves. Since the majority of people with justice issues pass through the courts, finding ways to collect research consent forms when people use court services or justice programs makes sense. When court rule reforms were being evaluated in the UK, some court jurisdictions collected client consent forms at rotating courts but only for a few months at a time.  This reduced the workload on court staff but still provided a solid basis upon which to evaluate the reforms.

Stable justice services that are widely delivered are also a good place to collect research consent forms from clients on a routine basis.  Recently, the federal government used a widely-delivered justice program to collect research consents to facilitate national research on separated parents. And in B.C., a longitudinal study on the impacts of mediation collected consent forms with the assistance of family justice centres. Some legal service agencies in Canada collect research consent forms from their clients on an ongoing basis, allowing them to implement a wide range of outcomes based research.

It is not enough to put a pile of research consent forms on a counter outside of a court-based program as were done for one program for self-represented litigants a number of years ago.  Needless to say, there weren’t many takers!  It does take some effort and time to communicate with court or program users so that they can discuss the purpose and the limitations of consent forms with clients. Signing a client consent form is helpful to researchers when contact is made because clients remember a process that they have already been part of.

With the limited resources we now have available to conduct research on civil justice matters, it is important to address challenges related to data sources and access to clients in order to make the most of the research dollars we have.

Thoughts on Family Law for Family Day

In 2013, British Columbia’s Premier Christy Clark established the province’s Family Day holiday with a throne speech that celebrated the diversity of Canadian families, “large and small; same sex; culturally diverse; foster families and adopted children; new Canadians coming to a new world; a single mother caring for her young daughter; a son caring for his aging father.” As we approach Family Day it is important to reflect on the push and pull inherent in family life, on the reality that with diverse families comes the need for informed supports that appreciate and reflect that diversity.

Whether an individual is dealing with separation, child custody and support, issues regarding property shared with their partner, or violence in the home, various organizations exist to not only provide social and psychological support, but also supports for the derivative legal issues that arise. Familial issues are part of everyday life and often have a legal aspect that isn’t always apparent to most Canadians.

Community Legal Education Ontario (CLEO) is working to help Ontarians recognize and respond to the legal dimensions of family based problems with their resource rich website Your Legal Rights. The site coordinates practical and easy-to-find legal information produced by hundreds of organizations across Canada. In addition to family law matters, the website features information on potentially related topics including criminal law, education law, employment law, housing law and human rights. Your Legal Rights also features news, events announcements and details about upcoming public education webinars.

Ontario’s Ministry of the Attorney General (MAG) also provides free and accessible legal information. MAG’s clear language resources focus on family justice services such as family arbitration and processes for separation and divorce. There is also up to date information about how to access support from Family Law Information Centres and organizations such as the Canadian Paediatric Society.

Legal Aid Ontario provides details about numerous specialized legal clinics. These clinics provide legal information, counseling and legal representation to low-income individuals in need of particular services. These clinics work to reflect the diversity of Ontario’s families by providing services such as multilingual interpretation.

The creation of a more accessible family law system is a work in progress but this Family Day let’s reflect on the great strides that have been made in our province and across the country to reflect the diversity of our families.

 

 

 

The Power of Bilingualism in the Legal Profession – Event Recap

On January 28th, 2015, I was glad to partner with the CFCJ to host a panel event titled “The Power of Bilingualism in the Legal Profession.” Osgoode Hall Law School opened its doors to an esteemed group of panelists:

I was inspired to promote bilingualism in the legal profession after trying out and then being accepted for the position of French Language Oralist for the Laskin Bilingual Moot. During this process, I was made aware of the difficulties that the law school had faced in terms of finding French-speaking students to fill this role. A shortage of French-speaking law students translates into a shortage of French-speaking legal professionals. This is unacceptable in a province where the citizens have broad rights to access justice in French (for more on French language rights in Ontario, see the 2012 Access to Justice in French report from the Ontario Ministry of the Attorney General.)

In addition to improving access to justice, in Canada, bilingualism opens many doors for legal professionals. One of my goals for this event was to inspire law students to develop or improve their French language skills, which would in turn improve access to French legal services in the legal profession in the future.

The panel offered invaluable insights for law students who hope to practice in French. It began with a discussion regarding how to fulfill the lawyer’s duty to advise clients of their French language rights. Baril reminded students that the ability to present evidence in the client’s preferred language leads to good results and a tactical advantage; Rouleau reinforced this point by emphasizing that testifying in one language above another can shape perceived credibility. When a client whose first language is French is forced to testify in English, this may compromise the testimony and reflect poorly on the client. Unfortunately, requesting a French trial may result in delays, so clients often choose to testify in English to expedite the process.

While Baril warned that practicing in French is difficult, all of the panelists encouraged students to not be intimidated to proceed in French. Although keeping terminology up to date is a challenge, it is well worth it. Baril explained that being a French speaking litigator broadened his exposure and experiences, providing him with major opportunities in Washington and China. Justice Rouleau spoke to the demand to French language skills in the common law market, asserting that his skills gave him cross practice experience and made his career. Burke addressed public practice, stating that French language opportunities are plentiful. By leveraging her skills, she was able to advance and inform French language services. Bouchard emphasized the importance of links to the Francophone community in terms of networking opportunities that open up for French-speaking lawyers.

The panel event concluded with some practical advice for students, including a personal anecdote from Justice Rouleau that gave students a good reason to resist using Google Translate: the judge reminisced about receiving a document from a lawyer with his name listed as “Justice Roll”, a literal translation of his name from French to English. He was thoroughly unimpressed.

Bilingual skills are in demand in Ontario’s legal profession and having the skills to fill this demand will not only improve access to justice but will also enrich your legal career. For more information about pursuing bilingualism in your practice, be sure to check out the many resources mentioned during the panel discussion including: AJEFO, the Law Society’s numerous student oriented events and French Professional Development Programs as well as the various ongoing programs,  events and crown counsel evaluation available through the Ontario Ministry of the Attorney General.

Natalie Livshitz is currently a student in her last year of the joint JD/MBA program at Osgoode Hall Law School.

 

Homelessness and Access to Justice

In November, The Homeless Hub, a web-based research library and information centre at York University, released The State of Homelessness in Canada 2013. This report details how factors such as declining wages, reduced benefits, and shrinking availability of affordable housing are driving an increase in homelessness in Canada. Some of the statistics are shocking:

  • 35,000 Canadians are homeless on a given night;
  • 13,000 – 33,000 Canadians are chronically or episodically homeless;
  • Over 235,000 Canadians experience homelessness in a given year.

Access to adequate housing is a necessity of life that many people in Canada are lacking. The report emphasizes the need for “housing first” and moves to address the links between homelessness and related hardships. The report also discusses how homelessness does not discriminate – it does not exclusively affect particular types of individuals or families, though people with mental or physical disabilities are disproportionately affected.

Surprisingly, almost 1 in 5 households will experience housing affordability problems. Over the past 25 years, federal spending on low-income housing has decreased while rates of homelessness have risen by nearly 30%. The report estimates that in the last 20 years, construction of 100,000 housing units were cancelled due to funding cuts to key building programs. Many families that could have been helped have been left on the streets.

Homelessness propels individuals through a range of public systems with typically unsatisfactory outcomes making it a social as well as an access to justice issue. According to The State of Homelessness, “we are failing low- and middle-income earners who are unable to purchase a home. What we do not pay in housing costs we pay for in health care, social services, child welfare, corrections, etc.” Early investment or social investment benefits individuals and public systems alike (for more information about social investment please see this paper from our 2012 roundtable series which featured Homeless Hub Director, Professor Stephen Gaetz). Front-end support ideally enables an individual to solve the problems of everyday life – many of which, as we know, are legal in nature.

According to The State of Homelessness, every $10 spent on housing and support results in $21.72 in savings related to health care, social supports, and involvement in the justice system. Put another way, an additional 88 cents per capita would secure 8,800 new units of affordable housing and would very likely decelerate the momentum of justiciable, social and health problems associated with life on margins.

In a piece for Slaw from 2013, Kari D. Boyle also underscored the importance of prevention or early, socially oriented investment. Boyle examined triage; a method widely used at legal clinics to sort clients based on their circumstances and needs. Drawing from the David I. Shulman et al. article, Boyle discussed how legal professionals were working in the community to help people identify their legal risks. Through collaboration with other non-legal professionals, a proactive approach to problem prevention was being advanced.

The State of Homelessness in Canada 2013 gives a comprehensive picture of a national crisis while underscoring the key principle of prevention. The report emphasizes that if and when homelessness occurs, we must move quickly to ensure housing along with necessary support. By linking housing with other, varied forms of social supports the report advances a sustainable response to a critical and multifaceted issue that intersects with Canada’s access to justice discourse.

The full report can be viewed here, also be sure to check out the Canadian Housing First Tool Kit.

 

Event Announcement – The Power of Bilingualism in the Legal Profession

Do you want to improve or develop French language skills that you can use in your legal career? Are you interested in finding out how leveraging language skills can improve access to justice and enrich your legal career? Join us for a panel discussion on how bilingualism opens doors in the legal profession.
Wednesday, January 28 from 12:45-2:30 pm in the Moot Court (room 1005). A light lunch will be provided.
Our esteemed panelists include:

Access to Justice Advocate – Janet Mosher

Recent reports have underscored the importance of innovation and imagination to the pursuit of access to justice. At the Canadian Forum on Civil Justice, we understand that such efforts come down to people – to advocates.  In an effort to spotlight the diverse range of individuals working across the access to justice landscape, we are pleased to present the Access to Justice Advocates blog series. Each month we will profile someone who brings a unique perspective and makes a valuable contribution to the issue of access to justice. Do you know an access to justice advocate? Let us know at communications@cfcj-fcjc.org.   

Professor Mosher joined the faculty of Osgoode Hall Law School in 2001 after teaching at the Faculties of Law and Social Work at the University of Toronto, where she was also the Director of the Combined LLB/MSW program. Between 2001 to 2005 and 2011 to 2013 she was the Academic Director of Osgoode’s Intensive Program in Poverty Law at Parkdale Community Legal Services. She is presently the Director of Clinical Legal Education at Osgoode and has formerly served as the Associate Dean. Her research has focused on gender violence and legal interventions, access to justice for marginalized populations, welfare policy (welfare fraud in particular), poverty law, homelessness, legal aid, and clinical legal education. Professor Mosher is a member of the Canadian Homelessness Research Network and the Canadian Observatory on Homelessness. She is also a member of the Group Applications and Test Case Committee of Legal Aid Ontario, and formerly served on its Clinic Law Advisory Committee. Professor Mosher is co-editor, with Professor Joan Brockman, of Constructing Crime: Contemporary Processes of Criminalization (2010), and with Professor Joe Hermer, of Disorderly People: Law and the Politics of Exclusion in Ontario (Halifax: Fernwood Press, 2002). She is the co-author of a number of reports including: “Take the Story, Take the Needs, and DO Something: Grassroots Women’s Priorities for Community-Based Participatory Research and Action on Homelessness” (with Emily Paradis, 2012); No Cherries Grow On Our Trees: A Brief by the Take Action Project, A Public Policy Initiative to Address Women’s Poverty and Violence Against Women (with Nora Currie and METRAC, 2008); Welfare Fraud: The Constitution of Social Assistance as Crime (with  Professor Joe Hermer, 2005); and Walking on Eggshells, Abused Women’s Experiences of Ontario’s Welfare System (with Professors Pat Evans and Margaret Little, 2004).  Recent articles include “Accessing justice amid threats of contagion,” (2014) Osgoode Hall Law Journal,  “Human Capital and the Post-scripting of Women’s Poverty,” in Beth Goldblatt and Lucie Lamarche (eds.), Women’s Rights to Social Security and Social Protection (Hart Publishing, 2014), and “Lessons in Access to Justice: Racialized Youths and Ontario’s Safe Schools,” (2008) Osgoode Hall Law Journal.

The Canadian Forum on Civil Justice had the wonderful opportunity to meet Professor Mosher at Osgoode Hall Law School to discuss her work in access to justice. As a researcher and teacher, Professor Mosher spoke to us about conceptualizations of access to justice that stimulate her work, as well as the ways in which the intersection between research and frontline advocacy can play a unique role on the access to justice landscape. Her conceptualization of access to justice redirects access to justice advocacy away from courts and towards broader understandings of justice, power and inequality.

The full length version of the interview can be found here. 

Access to Justice Advocate – Dianne Wintermute

Recent reports have underscored the importance of innovation and imagination to the pursuit of access to justice. At the Canadian Forum on Civil Justice, we understand that such efforts come down to people – to advocates.  In an effort to spotlight the diverse range of individuals working across the access to justice landscape, we are pleased to present the Access to Justice Advocates blog series. Each month we will profile someone who brings a unique perspective and makes a valuable contribution to the issue of access to justice. Do you know an access to justice advocate? Let us know at communications@cfcj-fcjc.org.   

Dianne Wintermute has been working in the community legal clinic system for over 25 years. Called to the bar in 1986, Dianne has extensive litigation experience representing individuals and disability organizations in cases involving the advancement of the rights of people with disabilities and people living in poverty. She has advocated in various tribunals and all levels of the court, including the Supreme Court of Canada. Dianne joined ARCH Disability Law Centre as a staff lawyer in 2009. Prior to ARCH, she was the Executive Director of East Toronto Community Legal Services from 1991 – 2009. The Canadian Forum on Civil Justice had the exciting opportunity to visit the ARCH offices to chat with Dianne about her work in disability law and her continued dedication to access to justice issues. Dianne brought a unique perspective to our A2J discussion with her extensive experience in dealing with the intersection of law and mental health. Dianne spoke to CFCJ about the changes she believes needs to be made both in and outside of the legal field to target impediments to access to justice, including increasing client capacity, autonomy and decision-making power.

Unified family courts: an established mechanism for improving access to justice

Lawyers practicing in jurisdictions with multiple trial courts and no unified family court will be aware of the challenges facing litigants without counsel. First there’s choosing the right law, because of the overlapping federal and provincial legislative jurisdiction in family law matters. Then there’s choosing the right court, because of the trial courts’ simultaneous but asymmetric subject matter jurisdiction. And then there’s the question of the courts’ relative degrees of complexity, expense and  accessibility, and the extent to which corollary social and legal support services are or are not embedded in the court process.

One obvious solution might lie in amalgamating the trial courts to provide litigants with one court, with easy to understand rules and processes that are proportionate to the nature of the dispute and specific to family law, that is integrated with the relevant social services. This is more or less the approach taken in parts of Manitoba, New Brunswick, Newfoundland and Labrador, Nova Scotia, Prince Edward Island, Ontario and Saskatchewan, where there is a single court for the resolution of family law disputes, but it seems to be off the menu in Alberta and British Columbia for reasons that escape me.

The unified family court concept is not a new one. British Columbia initiated a short-lived project in 1974, Manitoba, Ontario and Saskatchewan each launched pilot projects in 1977, and a committee of the Alberta Law Society recommended the establishment of a unified family court in that province in 1968. In fact, the 35th anniversary of the Hamilton Family Court, the first unified family court in Ontario, was celebrated just two years ago.

In essence, unified family courts recognize the special nature of family matters as a distinct area of the civil law and are meant to provide litigants with one-stop shopping, avoid a piecemeal approach to a family’s legal issues, and reduce the likelihood of duplication, delay and harassment through a multiplicity of proceedings. Ideally, a unified family court would have:

  • limited judicial rotation between other courts, resulting in a dedicated bench with highly developed skills and expertise;
  • specialized rules that create a simplified process, that provide for only those procedures that are necessary for family law matters, that can adapt to the complexity and importance of an issue, and that can evolve independent of the ordinary civil rules;
  • both adversarial and non-adversarial dispute resolution processes; and,
  • social and educational services related to family breakdown integrated into the court system and its dispute resolution processes.

Such a court should improve access to family justice and related social services, and produce outcomes that are better tailored to the needs of the users of the system and their children.

Makes sense, doesn’t it? Here’s the rationale for a unified family court given in Alberta in 1976 by a special committee composed of the province’s Chief Justice, judges from the superior and provincial courts, with representatives from the Law Society of Alberta and what was then known as the Department of the Attorney General:

Family law deals with the problems of husbands and wives arising from the breakdown of marriages. It deals with problems of the protection and support of children arising from the breakdown or lack of family relationships, and the problems arising from the unlawful conduct of children and juveniles. These are among the most numerous and the most serious and important problems with which society must deal, and it is imperative that society provide strong courts and efficient social services in order to deal with them.

The Committee is concerned that the numerous and varied problems affecting families are not being satisfactorily dealt with under the present divided court structure. The fragmented jurisdiction makes improvement very difficult. The Committee is convinced that the time has come when important changes and solutions can be implemented only if a Family Court is created with original exclusive jurisdiction over the entire field of matters affecting the family.

 

And yet here’s how one commentator, lawyer and academic Michelle Christopher, described the state of the family justice system and the rationale for a unified family court in 2004:

Access to justice has long been a concern to the public, particularly in family law disputes, where parties lack the deep pockets to provide funds to sustain the type of prolonged and costly litigation that is common in corporate and commercial law contexts. … [It] has been argued that family law litigants are at a distinct disadvantage in trying to proceed without legal counsel, because the jurisdiction for family law problems is not limited to one level of court, or in Calgary, even to one court building! The public has long complained, and with good reason, that it is difficult to know whether their matters will be heard in Provincial Court or in the Court of Queen’s Bench. …

The public is not expected to be entirely conversant with issues of legislative jurisdiction, which require federal matters such as divorce to be heard in the first instance in the Court of Queen’s Bench. The Provincial Court of Alberta has jurisdiction to hear all matters of “purely local and provincial concern,” including child welfare and domestic relations (non-divorce, guardianship, custody and access) matters relating to the children of unmarried or never-married parents, or separated parents who are not yet divorcing, except if the proceedings are to establish paternity, in which case the Court of Queen’s Bench has jurisdiction. If you are a grandparent seeking access to your grandchild, your matter will be heard in the Provincial Court. In the case of child support, matters are also heard in the Court of Queen’s Bench, unless you are bringing an application for the reciprocal enforcement of a child support order from another province, in which case you will be heard in the Provincial Court, and so on. You get the picture. Except that it’s totally confusing to members of the public, and does affect access to justice.

 

Sadly, the complexity of the family justice system has a direct impact on the ability of litigants to proceed without counsel. In a 2014 survey of 167 judges and family law lawyers conducted by the Canadian Research Institute for Law and the Family and two prominent academics, all Alberta respondents said that special challenges always or usually arise because of unrepresented litigants’ unfamiliarity with the rules of court and the law of evidence, and 96.9% said that challenges always or usually arise because of litigants’ unfamiliarity with court processes.

You can read about how these issues compound the other challenges faced by litigants without counsel elsewhere in this blog. 

Interestingly enough, although unified family courts are far from perfect, they do in fact generate the results expected of them. According to a 2006 report prepared by the Institute and Nicholas Bala for the federal Department of Justice, most family law lawyers practicing in regions with unified family courts said that they have simplified court procedures, provide easy access to family justice services and produce outcomes tailored to individual needs. What they’re less good at is providing a speedy resolution to family law disputes. This is what the 164 lawyers surveyed said about four key performance benchmarks:

There are, of course, two main difficulties with implementing a unified family court in Alberta and British Columbia. First, both the provincial governments and the federal government need to cooperate with each other to set up the new court and address the jurisdictional issues arising from the merger of a court with statutory jurisdiction and a court with inherent jurisdiction. Second, it can’t cost too much. None of the governments in question are going to be keen about spending money on a family law court even though the national divorce rate is 40.7% and 21.5% of Canadian children live in lone-parent families. Neither problem is, in my view, insurmountable.

In 1978, the Alberta Law Reform Institute published two papers that address the constitutional issues and continues to be relevant, a paper expressing legal opinions on the question of jurisdiction (PDF) and a paper laying out the structure of a proposed unified family court (PDF). In the jurisdiction paper, one of the authors concludes that the provincial Governors General may grant limited appointments to provincial judges to enable them to undertake the functions of federally-appointed judge; this, however, carries with it the concern that the federal government would be responsible for their salaries which is, presumably, a non starter. In the proposal paper, the authors discuss the possibility of the federal government giving provincial judges special limited warrants to exercise some of the powers of a federal judge.

This second idea may be the better solution, as it would preserve the expertise of the provincial court judges who already are partial specialists in family law matters, incorporate them as members of a new court with their federally-appointed peers, and leave their salaries paid by the provincial government. In the current atmosphere of fiscal restraint, I cannot imagine either level of government being asked to commit significant new resources, much less absorb the burden of a boatload of judges currently paid by the other!

Both of the ALRI papers need to be read to get a thorough handle on the constitutional issues. I note, however, the provisions of s. 25 of the Divorce Act, which allow the provinces to “make rules applicable to any proceedings” under the act, including rules:

(a) regulating the practice and procedure in the court …

(e) prescribing and regulating the duties of officers of the court …

(g) prescribing and regulating any other matter considered expedient to attain the ends of justice and carry into effect the purposes and provisions of this Act.

These provisions were introduced with the 1985 act and seem to me to extend an authority to the provincial governments that was not available when ALRI’s reports were published in 1978 and may offer further options.

Back to the cost issue for one moment. I strongly suspect that a unified family court will ultimately save more money than what is expended under the current system, even with the costs of an expanded court administration which incorporates a broader range of dispute resolution options and social services added in. If a unified family court promotes the rational, reasonable settlement of family law disputes, it will reduce the number of files headed to trial and the resulting savings over the existing litigation-focussed system will be significant.

At the end of the day, report (PDF) after report (PDF) has commented on the barriers that inhibit access to justice, and prominent among them is the labyrinthine complexity of a judicial system involving two courts with concurrent but incongruent jurisdiction, with different rules, processes and forms. This barrier assumes a new significance in light of the ever-increasing numbers of litigants involved in civil court proceedings without counsel, numbers which represent anywhere from 50% to 80% of the court docket depending on the jurisdiction you’re looking at. A simpler, more streamlined process, with a new and heightened emphasis on integrated social services, managed by a bench of specialist judges, may not be the only or the best answer for family law litigants, but it’s a concept that has proven to work elsewhere and surely deserves to be considered.

This post is based on an article originally written for and published by LawNow Magazine. It is reposted from the Access to Justice Canada Blog.

Lives on Simmer! Early Intervention For People Living on the Margins

This is the third post in a series following the developments of the Halton Community Legal Clinic’s Legal Health Check-Up Project. Previous posts can be found here and here. 
The Legal Health Check-Up Project developed by the Halton Community Legal Clinic has been running for about three months through the early phase of implementation, monitoring and course correction.  Project experience is a good teacher and the very early data and project experience is teaching the project team some interesting lessons. One of the main concepts underlying the Legal Health Check-Up Project was that the partnerships between the legal aid clinic and the intermediary groups would allow early intervention and the ability to prevent problems from becoming more complex and difficult to deal with.

These are early days and the data are very preliminary but here is some of the story the data are telling so far.  About half the people who requested follow-up by an intake worker at the Clinic and who have received a follow-up interview said a problem they were experiencing began within the previous two months. That is hopeful for being able to deal with problems early. Also, many clients experience multiple problems. About 40% of people who completed the Check-Up forms reported three or more problems. This is two to three times the percentage identified in legal problems surveys. Importantly, there is a very high correspondence between the clinically assessed legal problems at intake and the everyday legal problems identified on the Legal Health Check-Up forms. This tells us that the check-up form is a good tool for identifying unmet legal need.  As the project team pondered what the early data might be telling us we realized we had probably not framed the early intervention objective entirely correctly. The early thinking was not wrong but it had to be refined.

The need for early intervention is an idea that is based on the trigger and cascade effect that has emerged from the legal problems research. Legal problems trigger other legal problems. Legal problems trigger, and are triggered by, a range of non-legal problems. This presents a linear idea of problems occurring over time, suggesting that problems might be prevented or at least managed if they are identified and help provided early enough in the process. This concept is based on large-scale surveys of the public and may adequately characterize the way in which problem sequences emerge for members of the public generally. However, a linear trigger and cascade concept of experiencing legal problems may not be the best way to characterize the way the marginalized groups making up the population served by legal aid experience multiple problems. Rather than a linear concept, it may be that the lives of the poor are on a constant simmer of multiple inter-connected problems that occasionally erupt into crisis situations.

This early project experience suggests that extending the reach of legal aid may not prevent legal problems among the marginalized people making up the legal aid client base. Lives kept in a constant state of simmer by scarcity may not allow that to occur. However, extending the reach of legal aid by partnering with intermediary groups may increase the capacity of legal aid to prevent problems on a constant simmer from ‘boiling over’. Borrowing the metaphor made famous by Richard Susskind in The End of Lawyers, depicting the choice between the fence at the top of the cliff, or, the ambulance at the bottom, the poor are crowded close to the fence and relocating them very far up the path away from the fence is difficult. Legal aid may, however, be able to catch them before they tumble over the cliff.  That is a refinement of early intervention tailored more realistically to the lives of people living on the margins. Early indications are that the partnership between the Halton Legal Aid Clinic and trusted intermediaries who are closer to the lives of the poor can accomplish this objective. The Legal Health Check-Up is proving to be an effective tool in a proactive process where intermediaries can reach out and identify people with everyday legal problems and guide them towards the help they may need.

 

British Columbia’s Civil Resolution Tribunal Launches Implementation Website

This week British Columbia’s Civil Resolution Tribunal (CRT) launched an implementation website that will provide BC residents with information about the progress and development of the CRT’s work. 

According to the website, “the CRT is going to be very different from other dispute resolution options that been available in British Columbia. The CRT will give you choices about how, when and where you resolve small claims and strata property (condominium) disputes.” The CRT is motivated to empower “people to become actively engaged participants in their justice system.” 

Beyond merely providing information, the implementation website will allow the public to ask questions and provide comments to the CRT team. The CRT is committed to making the tribunal as easy-to-use and accessible as possible, and encourages the public to get in touch with them through the website.  Not only will the site offer updates on the CRT it will also feature expert guest posts – so be sure to check back often.  

To learn more about this important work check out this paper from CRT Chair, Shannon Salter. The paper was presented last month at the Osgoode Forum on Administrative Law and Practice in Toronto and the CLEBC Administrative Law Conference in Vancouver.

 

 

The Cyberjustice Laboratory: where justice processes are modeled and re-imagined.

The scope of the research being conducted by the Cyberjustice Laboratory is extensive. According to the website, there are over 33 projects underway by various researchers affiliated with the Laboratory. The Laboratory’s projects range from the development of new online dispute resolution platforms (more on this project below) to the development of a framework to assess e-justice systems.  Each research project falls within one of three broad research clusters, each of which are guided by interrelated, yet distinct, research questions. The first cluster examines digitalization of justice to determine the degree to which it can increase efficiency in the justice system and facilitate access to justice. The second identifies restrictions on digitalization of justice caused by the traditions and practices in place in the justice setting. The third puts the first two into practice by developing new procedural models that combine information and communications technologies while ensuring respect for fundamental rights.

Bachar Daher, an articling student at the Laboratory, was happy to share his experience with me to help shed light on the types of problems that the Laboratory is working to solve. Bachar recalls his early days at the Laboratory, explaining that this was the first time that he was able to practically implement the law and apply it to areas such as technology, psychology, sociology and economics. He explains that the Laboratory’s mission is to improve access to justice in Quebec, in Canada, and internationally, using technology as a facilitator. Bachar describes the Laboratory as an environment where he was granted the freedom, confidence, and autonomy to think outside the box, to experiment, to voice his opinion, and to explore new methods of approaching issues.

The Laboratory’s mission transcends national boundaries and its innovations, advances, and the determination of its team position it on the world stage; it works closely with international organizations, government departments at national and international levels, professional bodies, NGOs, partners and research centers on all continents, as well as the private sector. Altogether, the Laboratory consists of 36 full-time researchers, 70 research students, 20 universities and research centers, and 9 partners.

One example of the Laboratory’s global reach is its project with the World Bank that aims to improve access to justice in Latin American countries. The objective of this project is to examine and implement potential solutions with the end goal of creating an effective network, using technology to improve individuals’ ability to access their respective justice systems. Essentially, the Laboratory uses advances in research and technology developed in Montreal to improve access to justice not only in Canada, but globally as well.

Bachar describes the Laboratory as being a space for reflection and creation where justice processes are modeled and redesigned to better meet the needs of individuals. The team analyzes the impact of technology on justice and develops practical systems adapted to the realities of judicial systems. In other words, the Laboratory is a place of convergence where different actors come together to discuss and challenge proposals, to experiment with solutions, to propose strategies, and to work collaboratively.

The Laboratory’s creation was based on several premises, the primary one being that technological advancements have become increasingly prevalent while the use of computers and networking is not yet fully integrated into the judiciary. Two prime examples are the persistent attachment to paper and the physical presence of all stakeholders at trials. The justice system is also hampered by costs and delays caused by lengthy court proceedings. Fortunately, the rapid arrival and adoption of smartphones and tablets during the end of the last decade helped ease many players in the legal world into the idea of using technology.

When I asked Bachar about barriers to innovation that he has experienced, I was inspired by his response. He explained that he prefers to look at what others may call barriers as being no more than challenges. “Laboratory challenges abound,” he explains. “A very concrete example I can give is that… today, most users expect to use tools that are similar to the gadgets used in their daily lives.” He went on to explain that it is very difficult to conduct ergonomic and behavioural research on the techno-legal and socio-legal impacts of a user interface when gadgets change so rapidly. The Laboratory must be proactive enough to follow the changing trends in technology as they happen.

I find the Lab’s Online Dispute Resolution (“ODR”)initiative, PARLe, to be particularly compelling. This initiative differs from other ODR platforms because it is open source; PARLe is openly available for use, integration, and improvement, to all organizations either already involved in, or hoping to become involved in, online mediation. This type of platform has significant benefits for its users, such as cost savings and convenience. However, there are also important drawbacks, such as the fact that, at the moment, these types of platforms only apply to a limited range of disputes and may be inaccessible to certain individuals. Bachar explains that the Laboratory aims to build an online mediation tool that is tailored to the needs of the judiciary, the litigant, and the legislator. However, he concedes that an online mediation platform should not be viewed as a solution to the challenges of the justice system in itself. Rather, online mediation is a tool that contributes to the creation of a solution.

Bachar illustrates this distinction by analogizing it to the invention of the printing press: “The printing press contributed to the advancement of knowledge because writing became a powerful tool for knowledge transfer. However, writing would lose its power in the context of an illiterate society. Similarly, the success of a platform for online mediation depends on the ability of the broader environment to adopt and use this tool.”

In conclusion, leading organizations such as the Cyberjustice Laboratory introduce effective innovations that allow the broader community to address some of the shortcomings of judicial systems and to improve access to justice. To learn more about the Cyberjustice Laboratory and its exciting initiatives, click here.

 

This piece originally appeared on the Winkler Institute for Dispute Resolution Justice Innovation Blog. 

How lawyers resolve family law disputes

This past July I was able to sample the views of 167 lawyers and judges attending the Federation of Law Societies of Canada‘s National Family Law Program in Whistler, British Columbia through a survey designed and implemented by two prominent academics and the Canadian Research Institute for Law and the Family. The survey asked questions about participants’ views on shared parenting and shared custody, litigants without counsel, and dispute resolution.

In the course of digesting the resulting data for a report, I noticed something very interesting about the information we’d collected on dispute resolution. We had asked lawyers to tell us the percentage of their family law cases which are ultimately resolved by: arrangements made by the parties themselves; negotiation involving lawyers; mediation; collaborative settlement processes; arbitration; through court with the assistance of a judge at an interim hearing or a judicial conference; or, through court at trial. Here’s what the numbers told us:

As you can see, the lion’s share of cases are resolved through negotiation, primarily negotiation involving lawyers. (If you click on the image, you’ll get a larger, clearer version of this chart.) By region, lawyers reported that their family law cases were settled through lawyer-involved negotiation as follows:

  • North (Northwest Territories, Yukon): 23.3%
  • British Columbia: 41.1%
  • Prairies (Alberta, Manitoba, Saskatchewan): 37.4%
  • Ontario: 38.7%
  • Maritimes (New Brunswick, Newfoundland and Labrador, Nova Scotia): 50.6%

The rate of resolution by negotiation in the maritimes is astonishing at more than half of lawyers’ files. British Columbia sits in second place with two out of five files resolved through negotiation, followed closely by Ontario.

Mediation is popular in British Columbia and Ontario, but less so in the north, the prairies and the maritimes, perhaps because of smaller populations or a smaller number of trained mediators:

  • North: 10.0%
  • British Columbia: 25.5%
  • Prairies: 17.9%
  • Ontario: 24.8%
  • Maritimes: 10.0%

I was surprised to see relatively low rates of resolution through collaborative settlement processes, as it seemed to me that collaborative processes are more widely used in British Columbia and Alberta, but I wasn’t terribly surprised to see the low rate of resolution through arbitration. Arbitration has been widely accepted by the Ontario family law bar, and is becoming more accepted in British Columbia as a result of it’s new family law legislation; in other provinces arbitration isn’t used at all.

The relatively high rate of settlement through pretrial court processes, however, reflects my own experience as a family law lawyer. Quite often litigation is commenced not because a trial is anticipated but in order to deal with urgent problems, compel document disclosure, signal a party’s sincerity and commitment to a particular position, or move settlement discussions along. Judicial settlement processes, such as Judicial Case Conferences and Settlement Conferences in British Columbia or Judicial Dispute Resolution hearings in Alberta, are extraordinarily effective ways of getting past the stumbling blocks to settlement. Quite often the judge’s considered opinion of the likely outcome or of the merit of a party’s case is enough to modify unreasonable positions and encourage settlement.

By region, lawyers reported that their family law cases were settled by pretrial court processes involving a judge as follows:

  • North: 33.0%
  • British Columbia: 25.8%
  • Prairies: 21.1%
  • Ontario: 28.2%
  • Maritimes: 21.6%

Finally, the rates of resolution by trial, which I, and I believe most lawyers, view as an option of last resort, were wonderfully low. The rate of resolution by trial was higher than resolution by arbitration but about the same as resolution through collaborative processes, and only a fraction of the rates of resolution by lawyer-involved negotiation and pretrial conferences. By region, lawyers reported that their family law cases were settled at trial as follows:

  • North: 4.4%
  • British Columbia: 10.0%
  • Prairies: 5.4%
  • Ontario: 7.6%
  • Maritimes: 5.9%

Here British Columbia is a surprising outlier with a rate of resolution by trial significantly higher than everywhere else except perhaps Ontario, which had the next highest rate of resolution by trial. However, bearing in mind that the people who need to hire a lawyer to deal with their family law dispute generally have fairly complex and sometimes intractable problems, an overall rate of resolution by trial of 10.0% and 7.6% isn’t bad. Breaking things out by province, however, Alberta had the lowest rate of resolution by trial at 3.8% (what an incredibly low number; that’s less than 1 in 25 of lawyers’ family law files!) and Saskatchewan the highest at 12.9%.

These numbers are very reassuring. They suggest that family law lawyers emphasize dispute resolution processes other than trial in their practices, and tend to resolve their files primarily through lawyer-involved negotiation, judicial conferences and mediation. The relatively low rates of resolution through collaborative processes are explained, I think, by the facts that collaborative practice is well established in some provinces but is still developing in others and that not all family law disputes are amenable to this sort of intensive, dialogue-based process. The low rates of resolution through arbitration are explained by the different legislative treatment of non-commercial arbitration across Canada and the legal cultures that have developed as a result. In Ontario, arbitration is widely accepted and entrenched in family justice; in British Columbia, however, arbitration has just moved onto the scene as a result of its new family law legislation.

From an access to justice perspective, these numbers suggest that people are better able to afford counsel to manage their cases from start to finish as so few cases wind up being resolved through costly trials. However, you have to be able to afford counsel to begin with to enjoy the luxury of resolution other than by trial, and, as we know from research previously published by the Institute, settlement short of trial is significantly less likely in cases where one or more parties are without counsel than if all parties are represented by counsel.

At the end of the day, these data reflect very well on lawyers’ approach to their clients’ cases. However, clients must still be able to afford the services of counsel or they will, more likely than not, face the trial counsel would have helped them avoid.

A note about the data

The greatest number of responses to this question were received from Alberta (about 28 on average), British Columbia (about 38) and Ontario (about 13); all other provinces and territories yielded 10 or fewer responses. As a result, I have lumped the data together by region in an effort to produce more meaningful numbers, giving responses as follows:

  • North: range of 5 to 6 respondents
  • British Columbia: range of 5 to 41
  • Prairies: range of 35 to 44
  • Ontario: range of 11 to 15
  • Maritimes: range of 13 to 16

The survey received no responses from judges and lawyers practicing in Nunavut or Prince Edward Island. A small number of responses were received from Quebec practitioners; I have excluded these responses on the ground that Quebec’s civil law system is not readily comparable with the common law system used throughout the rest of Canada.
This piece originally appeared on Access to Justice in Canada.

Politically smart and locally-led justice programming

We are pleased to re-post this piece by Sam Muller which originally appeared on the Hague Institute for the Internationalisation of Law (HiiL) Innovating Justice Forum website on October 2, 2014.

A few weeks ago I attended a fascinating meeting with this provocative title at the Overseas Development Institute (ODI) in London. It implies that most justice programming is politically dumb, top-down, internationally-led and that it is not a good thing.

Having experienced rule of law programming closely in Yemen and Mali over the past year, I would be inclined to say that there is much truth to that. Let’s start with the politically dumb. Rule of law development is often positioned as merely technical: ‘generally accepted rules we all agree on – it’s only a matter of implementing them.’ That’s never the case: rule of law is about mitigating power and justice change is an inherently political process. We should admit that. Somebody will lose and somebody will gain power. Losing generally hurts. What about the top-down bit? Despite all the talk of involving locals and adapting to local circumstances, I have mostly seen that in the end, the donor’s agenda and politics dominate. International donors are rarely capable of listening, and if they do, they are rarely able to act on what they’ve heard. None of the women I interviewed for our Justice Needs and Satisfaction Survey in Mali this year said they believe the formal justice system should be strengthened to help them deal with the heart breaking separation and child custody challenges. They all thought and acted in relation to the informal justice system they knew and trusted and wanted that improved. But which donor would be willing and able to support imams, griots, and elders to deal more effectively with such cases, knowing that they support mechanisms that have a slightly different view towards gender equality than the one in the West? Which Western Parliamentarian would vote for that budget or resist the temptation to criticize his/her minister on having spent money supporting this?

So, much seems to be aligned towards continuing down the politically dumb and top-down road.

Matt Andrews – one of the participants at the meeting – has written one of the best and useful books I have read in many years for people working on programming justice change (The Limits of Institutional Reform in Development – 2012). Based on thorough empirical research, he concludes that ‘grand design’ programming does not really work. Sounds familiar? That detailed five-year plan worth 50 million dollars with an awesome list of objectives and results caught in an impressive logframe? His thorough empirical work confirms what HiiL’s research on justice innovation also shows: programming and strategy making that starts from problems that begin small with developing prototypes, and then tests them, and use iterative learning to slowly scale-up based on success, is much more effective. Matt Andrews calls it ‘purposeful muddling’ (or, more chique: PDIA – Problem-Driven Iterative Adaptation).

At ODI we all saw the failure of grand design and the value of purposeful muddling. But then what? How do you do it? My main take-aways include many contradictions:.

  • Donors want Big Programmes. It is said to save administrative costs. In addition: at the international level there is a tendency to lock into Big Targets (the MDG’s. Legal Empowerment for the Poor, etc.). Perspectives are not aligned;
  • Locally- led is the opposite of donor- driven. The challenge is how to support locally embedded actors to find solutions without being driven to solutions by the way money is being organised;
  • We don’t really have the budget rules, tender processes, logframes, and evaluation mechanisms to work in this way.
  • Justice is a risky sector to engage in. There is always the potential of doing harm. There are many actors. There are formal and informal ecosystems. All this limits the room for experimentation, which – at the same time – we need to muddle effectively and purposefully.
  • A key word in this approach is learning. This means: assure you can learn and communicate the learning;
  • Data is highly important for learning and taking action. This includes, but is not limited to, surveys. Radio shows and social media activity are also important sources of information-these are not really used;
  • ‘Locally-led’ is often an empty phrase. In fact, one participant stated: “There is no such thing as country owned. The country does not exist as a thing.” In his words: “You have to be in there all the time to find out who is allied with who and who wants what.” ‘Locally-led’ means more than building ‘buy in’ or teaching CSOs to ‘hold government institutions to account’. Good local leaders are brokers who are also able to bring in government institutions. They connect and organise and drive multi-stakeholder conversations. They build constituencies for change;
  • And, paramount to everything: always be guided by problems, not institutions. Focus on problems on which there is some consensus. Build a clever business case for your problem. But be careful. You can lose the original focus as you build the business case. So keep in touch with the problem.

Fascinating. Fresh, new thinking that can help get better outcomes in justice development. One thing kept nagging me, however. Why are we all so eager to ‘programme’? Behind that word lays a whole paradigm: rich countries that ‘programme’ to help other, poorer countries. I would not argue against that or against helping. But perhaps another seminar could be on politically smart, locally-led justice business models, without the programming bit.

Video material on some of presentations and panels can be found here.

The Halton Legal Health Check-Up Project is About to Go into the Field

The Legal Health Check-Up project, being developed by the Halton Community Legal Clinic, is moving out of the planning phase and into the field. Now that training for the seven intermediary partners in the use of the Check-up tool has been completed and the research instruments have been developed, the project is entering a preliminary phase in which data will be collected for three months or until three hundred Check-up forms have been completed with the assistance of intermediaries and submitted to the clinic for intake. The three hundred completed forms should provide sufficient data to assess the implementation phase of the project, to detect unanticipated issues and to make course corrections. That number of clients flowing in through the check-ups administered by intermediaries is intended to be small enough so that service can be provided to all new clients without undue strain on the capacity of the clinic while providing sufficient data to assess the early implementation of the project. It was decided early on in the planning that no part of the project would be for research only.

This phase of the research will allow the project team to collect data and carry out analysis to address several critical questions. How effective is the legal health check-up tool in identifying everyday legal problems? How closely do the everyday legal problems identified by people through the Check-Ups translate into actionable legal problems assessed at intake? Does the Check-Up process allow the Halton clinic to move the service “upstream”, identifying problems before situations become critical? How will the different intermediaries interact with clients and how will this affect problem identification? To what extent will the Check-Up tool allow the Halton clinic to extend its reach beyond its current clientele, into the hidden need of people marginally above current legal aid eligibility but still experiencing legal need with the same urgency as existing clients?

The Halton Legal Health Check-Up project is responding to the unmet need documented in the legal problems research and long experienced by service providers. By partnering with intermediaries to extend the reach of legal aid the Legal Health Check-Up project is moving from being reactive to the expressed demand that manifests as requests for service to proactively identifying unmet need, the Halton Legal Health Check-Up project is responding to the unmet need legal problems research has documented and has long been the experience of service providers.  Following the preliminary phase, the Halton pilot will continue to gather a larger body of data that will provide conclusive evidence. Importantly, following the preliminary assessment phase in Halton, several LAO legal aid clinics in the Southwest Region will then come on stream with versions of the legal health check-up approach that suit their situations.

These are exciting times for legal aid in the Halton region and in Ontario, responding to the unmet need now well-documented in the research literature with a new and exciting approach. At the same time, long time observers of legal aid will notice that the Halton Legal Health Check-Up project reaches back to the enduring ideals of the legal aid movement from the early days in the 1960’s, especially in the U.S when legal aid was conceived as part of a social justice movement and a key part of an attack on poverty. However, everything old is not new again without the commitment and the energy to continue making it happen, applying new knowledge about the access to justice problem and new ways of addressing it.

When Access Isn’t Enough: Examining the Intersection Between Social Inequality and Access to Justice

In her recently published book, On the Run: Fugitive Life in an American City, sociologist Alice Goffman follows the lives of several young men living in an inner-city community in Philadelphia. Through immersive fieldwork and rich ethnographic detail she illustrates “how fear of confinement has transformed work, health, and family life, causing men to disengage from the very mainstream institutions that might put them on a better path”. While Goffman’s work focuses on important questions relating to the United States penal system, it raises issues that relate to current access to justice initiatives.  In particular, it evinces a broader consideration of the links between social inequality, discrimination and legal problems and the effects it has not only on encountering legal problems, but also in resolving them.

In the realm of access to justice work, it is little secret that access to legal representation is a significant barrier.  To combat this, many initiatives across Canada have focused on empowering the public to understand the legal aspects of everyday problems and to increase access to legal representation.  But as we move forward, it is important to understand the full scope of what these initiatives can bring.   In communities that have historically experienced greater police presence or with individuals that have had previous interactions in the justice system, there may be less inclination to engage the legal system in the resolution of their legal disputes.  As Goffman noted, distrust and perceptions of unfairness are significant barriers to resolving disputes through the legal justice system.  For instance, the existence of a criminal record or being from a socio-economically disadvantaged community was enough to cause many to shy away from navigating their problems within the civil justice system.

Similar sentiments were noted in the Canadian Bar Association’s Access to Justice Metrics discussion paper. The paper was the result of a series of consultations that took place between November 2012 and February 2013 with marginalized communities and individuals most affected by a lack of access to justice.  When asked, “what happens when access to justice is denied?” participants spoke about fundamental problems with the system itself – it being “untrustworthy, corrupt and broken.”

In another study that focused on racialized youth in Toronto, participants held that “the law [was] not something that generates entitlements or protections; rather it [was] invoked by those with power against those without.” As a result, many did not even consider using the legal system to resolve their disputes because of the deep feeling of distrust.

So while we focus much of our attention on making it easier to engage with the legal system, it is clear that it must be done concurrently with increasing trust in its processes. Part of this means understanding the lived realities of those encountering the system.  As participants in the CBA study noted, the lack of recognition or understanding of the social and personal realities of the marginalized people moving through the legal system results in two problems: “First, the system and its actions actually perpetuates or aggravates the problem that got the community member initially involved in the system. The second problem created by the system’s seeming ignorance of social and personal realities is that the legal problem has a “spiraling and multiplying” effect into other areas of their lives, worsening them significantly.”

Interestingly, the issue of access to justice by people living in poverty was discussed at length by the former Special Rapporteur on extreme poverty and human rights, Magdalena Sepúlveda, in her 2012 report to the UN General Assembly.  While the report pointed to the cost of legal advice and lack of information as some causes for access to justice problems, others related to social exclusion and the lack of recognition or prioritization of the abuses regularly suffered by persons living in poverty.   As was stated in the report overview, “the lack of remedies for the negative impacts of social policy in the areas of health, housing, education and social security, or for administrative decisions relating to welfare benefits or asylum proceedings, often results in inability to seek redress in cases of violations of key human rights, such as the right to equality and non-discrimination and the right to social security.”  Although the report encompasses a vast array of social contexts, it offers an interesting analysis of the intersection between access to justice and social inequality that can inform future initiatives.

As we move forward, it is worthwhile to consider such barriers to accessing justice.  Beyond providing legal services, there are many other issues that can impede ones engagement in the legal system.  While this is merely a scratch on the surface, such inquiries force us to examine the form of justice we are trying to achieve and the quality or equality of services therein.

 

 

 

 

Connecting Ottawa

In December 2008, the Law Foundation of Ontario tasked Karen Cohl and George Thomson with the responsibility of finding durable solutions for individuals facing linguistic and rural barriers to accessing justice. In response to their findings, a pilot project funded by the Law Foundation and Connecting Ottawa was born.  I had the opportunity to intern with the organization this past winter. Having always thought of myself as a social justice law student, I naturally gravitated towards Connecting Ottawa for its simple but powerful mandate: to break down all linguistic barriers to accessing justice.

Armed with a firm (and somewhat naive) resolve to combat social injustice, I arrived to my first day of training with Natalie Drolet, senior counsel in charge of the day-to-day operations for the project.  I quickly discovered that my idea of social justice needed revamping. I had always thought of access to justice issues as being purely legal problems, to be solved by lawyers and law-makers alone. Connecting Ottawa changed my perception of this by introducing me to one of the most powerful access to justice tools: collaboration between legal and non-legal service providers.

Located at the Vanier Community Service Centre, and sharing facilities with the Francophone Legal Clinic of Ottawa East, Connecting Ottawa is a truly collaborative project. During my time there, I was able to observe the various partnerships that Connecting Ottawa has developed with legal clinics, community service organizations, and other trusted intermediaries. Being on the front lines of access to justice work meant that I was interacting directly with vulnerable clients in an effort to maximize the resources available to them.

My work most often involved brainstorming different organizations that might be able to assist individual clients, and then contacting those organizations to facilitate referrals. During my time with Connecting Ottawa, it was clear to me that one of the most important functions the organization serves is to help vulnerable people with legal problems navigate the complex maze of resources to find the ones most relevant to them.

That’s the short-term goal. The long-term goal is more difficult, and brings us back to the work of Karen Cohl and George Thomson. Their report to the Law Foundation of Ontario surveyed the deficiencies in the way that the current justice system was addressing barriers to access, and ways that it could improve. The most salient point that grew out of the report was the need for a fundamental paradigm shift in the way that we think of solutions to access to justice problems. The solution to the problem is, indeed, to think about the issues in a different way. The solution to the problem is building a system.

In Ontario now, there is some innovation and promising, isolated experiments to improve linguistic and rural access to justice. Apart from some notable exceptions in particular areas, however, there is no harmonized sense of direction, and no collective decision-making about areas of priority. — “Connecting Across Language & Distance” (2008), Cohl and Thomson.

Cohl and Thomson looked at the current system and saw a plethora of organizations, some legal and some non-legal, who were working independently to improve access to justice. These organizations often did not communicate with one another to ensure that they were not duplicating services, or to identify any gaps in the services that were being provided.  Cohl and Thomson also highlighted a schism between what were traditionally identified as legal service providers and non-legal service providers.

The old system was predicated on the idea that individual organizations should be designed to address problems in a narrow way. The old system also created a false dichotomy between legal and non-legal problems, without leaving room for intersection or convergence.

The old system ignored the fact that legal problems often come with non-legal problems, and vice versa. For example: a dispute with your spouse may bring with it emotional unrest as well as property and child custody disputes; a criminal law issue may bring with it issues of mental health and economic instability. It is not surprising that no one organization can resolve all of these problems. It is also not surprising that individual organizations addressing issues in isolation cannot contribute towards the solution when they do not communicate with one another.

Connecting Ottawa represents a much-needed paradigm shift in the way legal services are organized, facilitated, and operated. It offers a move away from isolationist policies, and a move towards providing a holistic solution to legal problems. We take a holistic approach and draw upon strengths that already exist within our network of over 40 community health, legal, immigration, disability, and social services agencies.

Connecting Ottawa re-imagines the solution to legal problems. Collaboration between legal and non-legal service providers is at the centre of all of the work that the organization undertakes. Building effective and long-lasting solutions to access to justice problems is about fostering connections in the community and building a fluid network of people and organizations which guide people through their legal dilemmas.

I was fortunate enough to have attended the 2nd Annual Connecting Ottawa Conference, where lawyers, community legal workers, settlement conference workers, policy makers, scholars and other members of the community came together to build connections and strengthen their network. Moving forward, I hope to see Connecting Ottawa continue to foster an interconnected community within Ottawa, and serve as a model for the change we so desperately need.

To find out more about Connecting Ottawa please visit www.connectingottawa.com or follow @connectingottawa on Twitter.

 

Extending the Reach of Legal Aid – The Halton Legal Health Check-Up Project

In an effort to overcome the realties of unmet legal needs in South Western Ontario, the Halton Community Legal Services (HCLS) has created the Legal Health Check-Up project. Primarily funded by Legal Aid Ontario’s Fund to Strengthen Capacity of Community and Legal Clinics, this initiative maintains that the key to effective resolution of legal problems lies in early and holistic intervention.

The Legal Health Check-Up project combines two main components. The first is a series of partnerships between intermediaries and the clinic which are facilitated by HCLS standing within Ontario’s community clinic system. The second element is a tool to assist the intermediaries in carrying out two “gateway” roles of problem spotting and making legal referrals. This component is crucial given that people often do not recognize the legal aspects of the problems they face in their day-to-day lives. They typically do not know where to go for help and do not think anything can be done. Consequently, many people will not seek help until the situation is desperate.

Over the past several months HCLS has developed and tested a responsively designed, online Legal Health Check-Up form. This form asks people about the everyday legal problems they may be facing in five areas: income, housing, education, employment and supports (family, social and health).  Each section of the form concludes with an open-ended question that allows people to provide additional details about their situation. The questions are written in plain language, refer to the normal activities of everyday life and make no explicit reference to legal matters or the need for legal help.

In order to pilot the use of the tool, the clinic has formed multi-disciplinary partnerships with seven intermediary organizations in the area. These include:  Employment Halton, Halton Hills Family Health Team, Halton Multicultural Council, Links2Care, Anglican Church of the Incarnation Oakville, Voices for Change Halton and the Society of St. Vincent De Paul, Mary Mother of God Parish, Oakville. The intermediaries extend the reach of the legal clinic by providing a direct connection to various groups that are often difficult to reach – primarily the socially disadvantaged.

Intermediaries can adjust the way they approach individuals based on the nature of their relationship and the type of problems that are identified. The introduction of the Legal Health Check-Up from a familiar intermediary can make all the difference in uptake. Intermediaries provide encouragement and can assist with completing and submitting the forms on paper or online. Follow-up is proactive – people are able to request a contact from an intake worker at the clinic, they can be notified of upcoming group information sessions and they can request public legal education materials that will be sent by mail. Increasing the capacity of community-based intermediaries to engage in collective action on behalf of the people who are members of their constituencies, and who are also clients of the legal clinic is an important part of the project. This entails training and mentoring by the Halton clinic to increase the legal and organizational capability of the intermediaries who are inclined to engage in collective action. It also entails increasing the legal capability of individuals to pursue social justice objectives through changes in legislation and policy.

The intake process is designed to identify social or health problems related to client’s legal problems. A recent pre-test deemed the Legal Health Check-Up form to be very good at identifying legal problems, in particular employment and family issues.  Of the 22 participants there were 16 requests for a return call from an intake worker. The following results were identified from those intake cases. Please note that appropriate legal action and referrals were undertaken by the clinic for the legal and related problems identified in the pre-test.

  • 8 requests for information about group sessions
  • At least one problem per participant that closely matched the everyday problems on the Legal Health Check-Up form
  • 7 participants were deemed to have legal problems considered in the early stages of development
  • 1 problem (pertaining to employment) was assessed as an emerging crisis
  • 2 physical health problems
  • 4 problems of severe anxiety
  • 1 problem involving suicidal ideation

When arrangements with the intermediaries have been finalized and training to administer the Legal Health Check-Up forms has been completed the project will run for a three-month test period. Following an assessment of this phase, changes indicated by the data will be implemented and the project will continue for approximately two years. The Canadian Forum on Civil Justice is providing research support to the project. Research questions focus on how well the intermediary – legal clinic partnership works, the effectiveness of the Legal Health Check-Up form as a tool for identifying increased numbers of legal problems compared with the pre-Check-Up operation of the clinic, the effectiveness of the process for identifying problems early after they first emerge in people’s lives, and how well the Legal Health Check-Up process supports effective and early intervention by the clinic.

This project is an experiment for expanding access to justice by extending the reach of legal aid through strategic partnerships with community based intermediary groups. This approach represents a change in legal aid service delivery from primarily reacting to expressed demand for service to proactively meeting legal needs. The Legal Health Check-Up marks an important step towards helping people recognize the legal nature of their problems while guiding them towards productive, holistic interventions and community support.

Click here to take the Legal Health Check-Up and for more information contact Colleen Sym, Executive Director of the Halton Community Legal Clinic at SymC@lao.on.ca.

Reforming the Family Justice System in Alberta

Reforming the Family Justice System

The Reforming the Family Justice System initiative is a collaboration between government, the Courts, and a number of organizations, academics and professionals that work within the family justice system in Alberta. The initiative is  founded on the reports of the Family Working Group and the Prevention, Triage and Referral Working Group of the national Action Committee on Access to Justice and aligns with the six guiding principles of the Action Committee:

  • put the public first;
  • collaborate and coordinate;
  • prevent and educate;
  • simplify, make coherent, proportional and sustainable;
  • take action;
  • focus on outcomes.

The first objective of the initiative is to improve awareness, coordination and availability of a wide range of services that support children and families, including information resources, legal resources, related health and social services, prevention assistance and resolution services. In April and May 2014, two workshops were held in Edmonton, bringing together key representatives from ten sectors in the family justice system. A third workshop is scheduled for October 2014. The initiative is  co-convened by the Honourable Justice Andrea Moen, Court of Queen’s Bench of Alberta, and Assistant Deputy Minister Lynn Varty, Resolution and Court Administration Services, Justice and Solicitor General.

Reflections on the Action Committee Colloquium Report

In January, the Action Committee held a two day Colloquium with a cross-section of stakeholders in the access to justice community. This meeting provided a platform from which to transform key access to justice recommendations into actionable strategies. The Colloquium featured breakout groups and keynote speakers that engaged both the innovation and institutional and structural goals identified in the Final Report – A Roadmap for Change. Seeking to capture the collaborative discussions and related recommendations that emerged at this meeting, the Action Committee released the Colloquium Report in June. Functioning as a guide and idea bank, the Colloquium Report offers readers strategies for implementation, examples of “best practices”, and insights into the multiplicity of initiatives currently being piloted by access to justice stakeholders across Canada.

Access to Justice Spotlight: A Review of the Recent Access to Justice Report in Australia

The problems associated with a lack of access to justice are a serious concern here in Canada. These concerns have been deftly captured in two recent national reports – one from the Action Committee on Access to Justice in Civil and Family Matters and one from the Canadian Bar Association – and several recent studies,[1] and research projects.[2] These issues, however, are not unique to Canada. This spring, the Australia Productivity Commission – an independent research and advisory body of the Australia Government – released the Access to Justice Arrangements: Draft Report, which details the access to justice issues facing those in the land down under.

The Draft Report is the first product of an in-depth 15-month inquiry into the costs of accessing justice, gaining legal representation, and the impact these have on access to, and the quality of justice attained in the Australian civil (including family law) dispute resolution system.  The Draft Report was based on information gathered through public submissions, consultations with governments, regulatory bodies, legal organizations, and members of the legal community, and surveys of legal need from across the country.

The Draft Report is a mammoth undertaking with close to 900 pages of research and recommendations.  Many of the issues identified will be familiar to those active in the access to justice debates. For example, similar to the Final Report of the Action Committee on Access to Justice in Civil and Family Matters,[3] the Draft Report characterizes the Australian justice system as being slow, expensive, and complicated. Beyond these generalizations however, the Draft Report makes several interesting recommendations on how to improve the justice system – some of which align with current policy recommendations under discussion here in Canada, and some of which are unique.  While there are far too many recommendations offered in the Draft Report to be captured here, the proposed reforms seek to address the following five issues:

(1) The permeation of problems between the informal and formal system;

(2) The large potential economic gains that could be reaped from instituting more early and informal solutions;

(3) The aspects of the formal system that contribute to access to justice problems;

(4) The “lumpy” costs that justice system users often experience; and,

(5) Improving legal assistance services for disadvantaged Australians.

1. The permeation of problems between the informal and formal system

The Draft Report found that everyday Australians lacked knowledge about how to deal with their legal issues.  Whether it was the result of a lack of information about the process, their rights, or from whom to seek advice. Although there are a host of organizations and websites speaking to legal issues in Australia, the Commission recommended that there be a centralized source for legal advice, referrals and information in each region.  The LawAccess NSW (New South Wales) was offered as a best practice example.

2. The large potential gains from early and informal solutions

In terms of early and informal solutions, the Draft Report spent some time focusing on the benefits brought by currently existing, but under-utilized professions and processes such as Ombudsmen and alternative dispute resolution.  By engaging Ombudsmen more, it was held that costs to justice system users would be reduced, disputes resolved more quickly, and the level of unmet legal needs be lowered.  In keeping with lowering costs and speeding up resolution, the Commission also highlighted the continued need to incorporate alternative dispute resolution processes not only in the courts, but also for disputes between consumers and government departments.  The Australian Tax Office’s Alternative Dispute Resolution process was held up as an example in this regard.

3. The aspects of the formal system that contribute to access to justice problems

The Commission also highlighted several factors of the formal system that contribute to problems accessing justice. For example, the creeping legalism of tribunals, and the adversarial nature of most court-based dispute resolution processes were seen as key issues.  In terms of the former, the Commission noted the increased used of legal representation in tribunals contradicted the intended nature of the processes.  In order to ensure tribunals are fair, economical and efficient, the Commission recommended placing rigorous restrictions on legal representation, thus reducing costs to users and speed up the tribunal process.

The Commission also highlighted the negative impacts of the adversarial nature of dispute resolution. The Draft Report notes, for example, that not only does the formal justice system provide little incentive for parties to cooperate, but the adversarial nature of the system also means that costs are unpredictable, and that self-represented litigants (SRLs) are at a disadvantage since they are often unfamiliar with the processes involved and unable to afford long-drawn out litigation. Therefore, greater use of alternative dispute resolution processes was recommended, along with changes to the costs awards structure.  In particular, the Commission proposed using fixed scales for costs in lower courts, and cost management and caps at higher-level courts.  With respect to SRLs, who are presently unable to seek costs in litigation, it was proposed that they be brought under the cost recovery structure using the fixed scale.  Further recommendations to assist SRLs followed those raised in Canada, such as improving the assistance provided to SRLs by judges and the courts, and ensuring consistent rules and guidelines.[4]

4. Helping justice system users deal with “lumpy” costs

Cost concerns were discussed throughout the Draft Report. A unique feature of the report looked at how to deal with the large and unexpected, or “lumpy” costs, that arise unexpectedly during formal legal proceedings.  With many justice system users falling into what the report termed “the missing middle”, – i.e. users who do not qualify for legal assistance and yet do not have the financial resources to deal with large and unpredictable costs – recommendations centered on unbundling legal services, and waiving of fees for disadvantaged litigants.  Unbundling, for example, would make costs more manageable and predictable.  It would also provide users the opportunity to purchase task-specific assistance, rather than have to cope with the traditional “full service” costs that are currently the norm.

5.  Improving legal assistance services for disadvantaged Australians

Finally, the Commission evaluated the legal assistance services provided to disadvantaged Australians.  It was determined that a key problem in accessing the necessary legal support is a result of restricted legal-aid funding for civil matters and the fact that the distribution of funds was not matched to need.[5]  As was stated in the report, budgetary decisions have either been “ad hoc” or based on history rather than taking into account legal need or the costs of service provision in determining where community legal centres would better serve the public.[6]  Therefore, it was recommended that the allocation of funds servicing disadvantaged Australians be reallocated in order to better target areas of need. Further, given the inconsistent eligibility criteria between legal aid and community legal centres, the Commission recommended that an established measure of disadvantage be determined and consistently applied across the board.  However, they also recommended that eligibility tests use a more holistic approach to assessing how the legal problem is affecting the client’s life, and in turn, how this is affecting justice and other publicly funded services.

To ensure that disadvantaged Australians are better equipped to deal with their legal matters, the Commission stressed the important role of the government.  By providing the funding, support and broad institutional framework for the civil justice system, the report emphasized that the government is key to improving the access to justice landscape. Thus, recommendations encouraged all levels of government to work together to collect and collate information, and to develop and implement reforms in order to promote more evidence-based policy and better targeted spending, a recommendation also made in the Action Committee and CBA reports.

Overall, the Draft Report and inquiry process is worthy of our attention as it provides a new vantage from which to explore similar issues affecting access to justice in the civil justice system in Canada.

The Commission has solicited submissions and feedback on the Draft Report, which will be incorporated prior to the release of the final report in the Fall 2014.  I look forward to seeing the Commissions final recommendations then.

More information and the report can be found by visiting:

http://www.pc.gov.au/projects/inquiry/access-justice/draft

The Kids are NOT Alright: Access to Justice for Children

Access to justice for children is emerging as a distinct sub-topic under the larger umbrella of child and youth rights. Kids are dragged into the justice system by custody battles, sexual or other abuse, exploitation, foster care, educational rights violations, or offending. It is important to understand that children who enter the justice system through committing an offence are just as vulnerable as children who enter the justice system without offending — and both should be given equal access to justice and safeguarding of their rights.

What is access to justice for children? The UN is careful to distinguish this issue from the related issue of juvenile justice, which is primarily concerned with penalizing minor offenders differently than adults. Access to justice for children means that violations of rights in national and international standards such as the UN Convention on the Rights of the Child must be resolved in a just and timely manner [1]. It also requires the “legal empowerment of all children”, where children have access to the information and services they need in order to claim their rights, through sources such as knowledgeable adults, legal services, child rights education, or counseling [2]. Of course, the particular understanding and maturity levels of children must be taking into account when exercising their rights.

While access to justice for children remains an area not widely-researched [3], it is gaining steam in the human rights and global development communities. In the 2012 Declaration of the Meeting of the General Assembly on the Rule of Law, UN member states “recognized the importance of the rule of law for the protection of the rights of the child, including legal protection from discrimination, violence, abuse and exploitation, ensuring the best interests of the child in all actions, and recommitting to the full implementation of the rights of the child” [4].  This spring, the UN Human Rights Council held their annual full-day children’s rights meeting. The theme: access to justice for children.  The report [5] for this meeting, which came out in April 2014, identifies many recommendations for States to ensure children’s access to justice. A few of these include:

  • Providing children with access to therapeutic services for neglect, violence, and abuse;
  • Allowing children to initiate legal proceedings when their rights are violated;
  • Ensuring decisions are explained to the child in a way and in a language the child understands
  • Ensuring the child’s right to appeal is not more restricted than that of adults;
  • Ensuring all children have access to legal and other appropriate assistance;
  • Increasing public awareness of the rights of the child;
  • Ensuring children’s informed consent to decisions in line with their evolving capacities;

One exciting outcome of this meeting was introducing a new treaty [6] that allows children to complain directly to the UN Committee on the Rights of the Child about alleged violations of their rights. Regrettably, this treaty, while in force, has yet to be signed or ratified by Canada or the US. I was pleased to see the UN had included a child-friendly version of the announcement (also useful for adults to avoid confusion!).

In Canada, Toronto-based organization, Justice for Children and Youth, seeks to carry out UN recommendations to increase access to justice for children and defend children’s rights by providing legal representation for low-income children and youth. They are also working to make the guiding principles in the UN Convention on the Rights of the Child more widely followed and known to both kids and adults. Many of their projects involve participation from kids, like their PSA video, “Your Right to Speak”.

Meanwhile, down South, the Tennessee Bar Association recently hosted a video-submission contest for youth centered around the question “There ought to be a law…”. Some entries focused on ideas such as providing free Wi-Fi in grocery stores, or banning the controversial extraction practice of mountain-top removal, but the winner was 13-year-old Michael Hill, who enlisted his siblings as actors in his “Access to Justice” video. It’s good to know there’s at least one kid out there who knows a thing or two about access to justice (although this may stem from the fact that both his parents are lawyers). Like every other area of access to justice, access to justice for children can only be achieved with the full participation of children in creating reform.

 

Further Reading:

Child Rights Connect Survey  — Prezi presentation on a survey asking 310 children ages 11-17 from 24 countries about their perceptions of access to justice for children in the justice system. View the survey report here. Child Rights Connect has a special working relationship with the UN Committee on the Rights of the Child, and is fully recognized to take part in United Nations deliberations.

Speak Up for Your Rights: OP3 CRC — A short guide for children, teens and child-led organizations about the new UN treaty that lets children speak up about child rights violations.

The “Juveniles Waiting for Justice” photo series from Open Society Foundations depicts the disorganization of records, long trial wait times, and scarcity of food and proper hygiene in the Pademba Road Prison in Freetown, Sierra Leone.

Two reports by the Canadian Coalition for the Rights of Children (CCRC) and UNICEF show to what extent Canada has implemented the recommendations in the UN Conventionon the Rights of the Child.

Walmart Law

A recent article in the Toronto Star [1] reported on three law offices that have recently been opened in Walmart stores in the Toronto Area. These law offices, called “Access Law”, concentrate on transactional matters such as wills, real estate, powers of attorney and notary services. Complex legal matters are referred to other firms, although plans are in place to add uncontested divorces in the future. This is a welcome development — let’s call it an experiment at this point — in the provision of low cost and accessible legal services. Progressive thinking about how the public experiences legal problems and how to expand legal services to Canadians [2] encourage us to view legal issues as arising from the normal activities of everyday life, not only as the complex legal problems that must be settled in the courts. This view of legal problems as part of everyday life encourages people to seek advice and to deal with legal issues early, in a preventative way, thus avoiding costs and additional legal problems later on. It is, as is often said, better to build an inexpensive fence at the top of the cliff than to place a costly ambulance at the bottom. To take this preventative approach, it is necessary for people to change their understanding of legal issues, viewing them as a part of everyday life. Looking at legal problems broadly in that way, people should have enough basic knowledge to at least recognize the potential legal implications in the normal transactions and transitions of life and know when to seek help and where. However, sources of assistance may not be well known. There are web sites that provide legal help similar to Walmart Law. However, Walmart is, if anything, a part of everyday life. Legal services located visibly in places such as Walmart make legal assistance more accessible and, moreover, convey the right message to the public about legal issues and about dealing with them before they become legal problems.

Further Reading:

Time to go see the lawyer . . . at Superstore?” (25 March 2014), CBC Radio Edmonton AM. 

  • Interview with the Dean of the Faculty of Law at the University of Alberta.

Supermarket ‘law shops’ to sell legal services” (6 October 2011), BBC News UK. 

  • England and Wales implement the new “Legal Services Act”, opening up the market for legal service providers.

Law Society to launch consultation on alternative business structures” (27 February 2014), The Law Society of Upper Canada. 

  • In the footsteps of the UK and Australia, LSUC will be holding a consultation on the use of alternative business structures (ABS), which provide more choices for consumers seeking legal services and thereby improve access to justice. 

​”Walmart Law Already Here” (28 April 2014), Law Times. 

  • The debate continues around the four models proposed by the Law Society’s alternative business structures working group.

A Culture of Legal Literacy

I have had the good fortune of being involved in a number of groups and initiatives aimed at improving access to justice and reforming family law processes over the last few years – from pro bono advice clinics and rosters, to public legal information websites and Wikibooks, to the reconstruction of court rules and legislation – and have recently become plagued by the feeling we’re getting something wrong, that there’s something more fundamental at play I’m overlooking. Partly this stems from the observation in Beyond Wise Words that despite the innovations and overhauls to date, “reports and inquiries continue to call for further reform, saying that the changes to date, while welcome, are simply not enough.” Partly it comes from a concern that the main thrust of our service delivery just might be targeted at the wrong point in people’s interactions with the justice system, that perhaps we are shutting the barn door a bit too late.

At present, the bulk of public services are delivered at one of three points in people’s involvement with the law: general public legal information delivered through seminars, workshops and pamphlets to people who are idly grazing for legal information or helping a friend; narrowly-focused legal information, advice and representation delivered to individuals at the moment of crisis, often following separation, a threat to take the children or service of process; or, detailed, concrete legal information and advice delivered to individuals who are well engaged in a proceeding, usually unrepresented by counsel, and are seeking details about specific issues, such as making or replying to an application, demanding or making disclosure or preparing for trial. I’m sure there are delivery models that I am overlooking, but I’ll bet this is where the lion’s share of our country’s law foundations spend their money.

The delivery of general-purpose public legal information is inexpensive to arrange, and has the merit of engaging lawyers with the community and the community with the justice system. However, relatively few people attend seminars or browse websites on family law out of curiosity. Would that more did.

The delivery of information and services at times of crisis is where legal aid, pro bono groups and other service organizations have traditionally spent their time and money. Although it demands significant human resources and a concomitant degree of infrastructure, it addresses the most visible need and provides help when it is needed most. It is also precisely the least opportune time to provide legal information and advice; people in panic are rarely able to absorb the difficult, complex and sometimes counterintuitive information required to make the difficult decisions that must be made and which shape the future course of their litigation. This delivery model also has poor spread, in the sense that there is usually only one person being helped and the services provided go no further than the individual; they tend not to improve the general understanding of the community as a whole.

The delivery of targeted information in the refractory stage between crisis and resolution often provides the greatest benefit to the individual. They are calm and able to digest the information provided, they have some experience in court and are able to sort that information into the model of the system they have begun to form, and they gain a more richly contextualized sense of the fabric of the law beyond the specific issue or event prompting them to seek help. However, as with the delivery of information at times of crisis, this model also does not distribute information beyond the individual recipient.

Assuming that my observations are more or less accurate, it seems to me that the bulk of our efforts are directed at the time when people: are the least able to absorb the information we seek to provide; are the least equipped to make the critical decisions necessary for their case; and, are already locked into a costly and adversarial process that is, in all likelihood, the worst possible way to resolve a family law dispute.

This leads me to that nagging question. How can we reach these individuals before they reach their Waterloo?

The current approach to public legal information, advice and representation strikes me as a bit like providing advice about dental care only when the tooth is already half rotten and the options are reduced to extraction or a root canal, without having previously discussed the importance of basic dental hygiene.  In both cases, the litigant/patient receives help at a watershed moment when choice of action is limited and locked into a process that will cost the both individual and the system greatly; in both cases, the crisis might have been averted, or at least mitigated, had basic information been provided much earlier on, at far less emotional and economic cost. I suppose another analogy would be to a system of health care relying on walk-in clinics as the primary point of contact rather than family doctors providing ongoing, prophylactic care.

Since there seems to be no practical way – well, no tactful way – to discern the likely breakdown of a relationship and encourage the parties toward counselling, mediation or a collaborative process before disaster strikes, the only solution that comes to mind is a culture shift.

Our society remains deeply mired in an assumption that court is where legal disputes are resolved. Collect a random selection of passersby, and put to them a scenario of dismissal without cause, an unfair eviction or a thieving neighbour. Ask them what they’d do to resolve the problem, and the answer will almost invariably involve litigation. This, I think, is a key issue and the primary reason why our public services are delivered as they are. This may be what needs to change.

I therefore suggest we must treat legal literacy as a value as worthy of pursuit as English literacy or numeracy. It is, after all, an essential component of competent citizenship in a democratic civil society, and of understanding one’s rights and obligations as an employee, a tenant or a neighbour. Perhaps a sufficient knowledge of the principles of fundamental justice and the manifold ways in which disputes can be resolved quickly, efficiently and cooperatively, without the delay, expense and acrimony of the trial process, will usurp Judge Judy, Damages and Boston Legal as our paradigms of dispute resolution.

I am under no illusions that this can be accomplished any time soon, but if the effort begins in primary school and is reinforced and expanded in high school, perhaps the barn door will one day be bolted before it is too late. However, unless we begin this sort of messaging early and frequently, we are unlikely to shift the popular approach to the disputes of separated families, and will continue pouring buckets of money into an inherently inefficient service model with nothing being done to divert potential litigants from an equally inefficient court system. Apart from the general improvement in personal wellbeing to be had from choosing dispute resolution processes other than court, I expect that even a modest decrease in the number of people heading to court will yield substantial savings for the court system and the organizations providing public legal information, advice and assistance.

Social Media and Access to Quality Legal Information

Many Canadians now search online for information when they have a legal problem.  Because of this, organizations facilitating access to civil justice have recognized the value of having a website, especially because it is cost-effective.  But how much attention are website viewers paying to content? Does good quality content matter?

It is well known that promotion of a website requires an active social media presence.  Without a social media presence on networks such as Facebook and Twitter, fewer people will know about, let alone access, the organization’s website.  CanLII is a non-profit organization managed by the Federation of Law Societies of Canada. CanLII’s goal is to make Canadian law accessible for free on the Internet. This website provides access to nearly 1.3 million court judgments, tribunal decisions, statutes and regulations from all Canadian jurisdictions.  Based on an analysis of social media engagement with CanLII, I have tried to better understand the three-fold relationship between visiting a website for legal information, the content of the website, and the visibility of the website on social media. 

Consider the following:  CanLII has over 5,700 Twitter followers, and on any given week CanLII can expect to receive hundreds of visits to its website from people clicking a link found in a tweet. As the chart below demonstrates, social media is a significant and growing source of traffic to CanLII.

social media blog chart
I found, however, that CanLII’s own tweets were likely responsible for no more than 4% of CanLII’s Twitter-generated page views.  As nearly all the traffic was attributable links generated by the public, clearly it is the content on the website that will determine whether it is tweeted, liked or otherwise socially circulated. A content provider’s participation in the network and promotional efforts through that network, while beneficial, are not the driving factor.

My research led me to this conclusion when I compared the social sharing via Twitter of the same court decision – one version from CanLII’s site (on which a “tweet this” button can be found) and one version from the Lexum-run Supreme Court of Canada decision site.  The October 2011 decision, Crookes v. Newton, 2011 SCC 47, concerned hyperlinking, making it a particularly apt ruling to examine. The decision was viewed 2,368 times on CanLII in 2011, with a mere 55 page views attributable to Twitter links. By comparison, on Lexum’s Supreme Court of Canada decision site, Twitter links accounted for 614 page views (stats of total views were not provided).  Motivation to share the content from the SCC decisions site needed no encouragement from the SCC webpage. The community itself decided the link was worth sharing and following without a prompt to share.

The latest aspect of my research into social media interaction with legal information deals with the “quality” of a social visit. The website activity of inbound social media traffic on CanLII contrasts significantly from that of visitors who access the site directly.

table of statistics

What insights flow from this research?  Quality legal information content on websites increases visits.  Social media presents an excellent opportunity for civil justice organizations to promote traffic on their website and facilitate access to justice.  But social media is effective in the context of legal information when people are interested in what is being circulated, not how many people are viewing what has been posted.  In effect, social media draws attention to postings on websites, but web-users will visit longer when the content on the website provides quality legal information.Part of the explanation for the appearance of lower engagement from a social media visitor is technological. On average, less than 10% of CanLII’s visitors access the site from a mobile device (smartphone or tablet). In contrast, 35-40% of social media traffic to CanLII comes from a mobile device. One reason for this is that statutes and long court judgments are not always easily digested on the smaller screen. The second major reason is that a person visiting a website directly does so with the specific intent to find information, whereas a social media visitor is more likely to be surfing or following links without any pre-existing interest in reviewing the material or subject matter.

You’ve Gotta Have Faith: Considering the Subjective User and Access to Justice Reform

As the National Magazine noted in a recently published article: when it comes to increasing access to justice, providing people with information is only the beginning. The article quoted Sarah McCoubrey, director of the Ontario Justice Education Network (OJEN), who said that subjective belief in the fairness of the system and faith in its problem-solving capacity is foundational to achieving access to justice. This may seem like a commonsensical, perhaps even an unremarkable, observation, but it’s worth pausing to consider what broader implications it carries for the way those in the legal profession understand access to justice.

Much innovative and groundbreaking work is being done on increasing the average Canadian’s ability to access the justice system. Indeed, the Canadian Forum on Civil Justice is proud to be part of a vibrant community of researchers who are committed to finding new ways of facilitating access to justice and removing some of the many barriers that impede this process. However, as encouraging as such research is, it also throws into sharp relief those dimensions of accessing justice that receive less attention. One of these is the subjective user experience. Put more simply, how do people feel about the justice system? The answer to this question will necessarily impact the effective implementation of other access to justice initiatives.

Ms. McCoubrey’s words are particularly astute because she focuses on how the justice system is perceived by Canadians – a phenomenon that is as difficult to document, as it is important. Much attention has been paid to the importance of public legal education on the assumption that the idea that an informed citizen, one with legal literacy and capability, will be better equipped to handle legal problems, if and when they appear.

True as this may be, the value of a legal education extends far beyond its role in preventing legal troubles, or in simply equipping people with tips and tricks on how to navigate the system once embroiled in a legal problem. Arguably, being better educated about the civil justice system will render it more familiar, transparent and trustworthy – qualities that are not to be underestimated. As Ms. McCoubrey’s words suggest, provision of basic information does not an accessible justice system make. We need to pay equal attention to how the public perceives and understands the justice system and it is likely that increased education and awareness will not only provide practical information, but will help provide a sense of legal empowerment and increase peoples’ comfort and familiarity with the justice system.

This sentiment is reflected in a recent infographic produced by the CFCJ on  the Advice Maze. The interactive graphic illustrates the ways in which those attempting to navigate the justice system can experience feelings of isolation and frustration; without clear information on where to turn for help, people often perceive the justice system as inscrutable and inaccessible. Lack of information regarding rights and responsibilities, as well as a paucity of reliable legal advice, leave some people with the impression that the civil justice system simply cannot, or will not, assist them in resolving their problems.

Approaching the task of legal education with this in mind, we will be better placed to address the lack of trust or faith in the justice system.

Collaborating on Justice Innovation: The Hague and Canada

A recent and exciting justice innovation in Canada is the creation of the Winkler Institute for Dispute Resolution.  The Winkler Institute has an action-oriented three pillar mandate in the areas of teaching and learning, research and innovation and pilots and projects.  Along with the Canadian Forum on Civil Justice and Osgoode Hall Law School, we are involved in a number of exciting Canadian projects, including the:

These are important law development and justice innovation initiatives in Canada – a country entering a new era of collaborative justice innovation and infrastructure reform.    These are exciting and challenging times back home!

As we write, we are currently enjoying the good fortune of meeting with Sam Muller and members of the Hiil team, recognized world leaders in justice innovation.  We are learning more about some of the exciting projects in which Hiil is currently involved.  For example, Hiil’s measurement group is working on a number of important needs assessment and mapping projects in various corners of the globe.  Their innovation group is busy sourcing, encouraging and catalyzing leading justice innovation initiatives.  And their strategic group is constantly looking for new avenues of justice sector partnerships – all with an ultimate goal of making law more fair, sustainable and accessible.  With that in mind, we are also discussing concrete ideas for collaboration between our various organizations around justice innovation in Canada and internationally.

Although there are many forms of justice around the world, what we share – both in terms of challenges as well as opportunities – is becoming increasingly common.  How people use systems, the challenges they face, issues around access and sustainability, and the need for more concrete, action-oriented, innovative and sustainable ideas are shared issues and aspirations.  To the extent that we can – regionally, nationally and globally – share and collaborate, the better we all will be.

We are currently exploring a number of exciting ideas for innovation, collaboration and support between our organizations.  Stay tuned!

A New Vision for the 2015 Millennium Development Goals: Integrating Access to Justice

How does access to justice play a role in eradicating poverty and promoting sustainable development in the global south? How can countries address access to justice issues, and how should they prioritize them? Should access to justice be adopted as a new Millennium Development Goal (MDG) post-2015?

These questions and others concerning the access to justice and the rule of law in developing countries will form part of the discussion at the United Nations Development Programme (UNDP) high-level summit on the MDGs in 2015. A bit of background: The MDGs were adopted in 2000 by world leaders as a part of the United Nations Millennium Declaration which had the intent to significantly reduce in global poverty by 2015. A list of the eight goals and their indicators can be found here.

While significant progress has been made towards reaching these goals, there is still much that needs to be done to meet the remaining targets. In 2013, UN world leaders met to renew a commitment to the MDGs; they agreeed to decide on a new set of goals in 2015, when the current goals expire. This presents the perfect opportunity to address issues not considered by the original eight goals – such as access to justice and the rule of law.

I would like to suggest that access to justice and the rule of law, in particular, should be unequivocally adopted as a new freestanding goal come 2015. Access to justice is central to development and the eradication of poverty. Without development of access to justice and the rule of law, many legal reforms that take place in developing countries fall short of their projected goals. For example:

  • When minimum wage laws aren’t enforced, a person may not be able to make a fair income to support their family.
  • Property owners who claim land without obtaining a deed due to excessive red tape, may lose their home.
  • Dowries are illegal in Bangladesh, but the practice is still prevalent in part because of the male-dominated culture [1].
  • Corrupt bankers in some countries provide loans to businessmen backed by political leaders, hurting small businesses and staggering economic growth [2].

But access to justice does more than overlap with the current MDGs – it forms the backbone of progress in the developing world. Access to justice is quoted by the Open Society Foundations as a “basic precondition for sustainable economic development” [3]. World Bank Group President Jim Yong Kim declared corruption in developing countries as the greatest barrier to development today, calling it “public enemy number one” [4]. It makes sense that access to justice and the rule of law is an integral piece of development. How can sustainable growth be achieved when a property deed is viewed as worthless, subversion of the law is the norm due to copious amount of red tape, citizen’s basic human rights are not respected, and governments spend public money on their private affairs?

Introducing the rule of law and access to justice into the post-2015 UNDP development strategy would certainly pose challenges. It may be harder than other goals to measure progress. It may be difficult to build on existing systems in states while still maintaining cultural relevancy and functionality. But to ignore this crucial piece of the development puzzle would undermine the effort to eradicate poverty in the post-2015 program.

To learn more about this issue, see the Open Society Foundation’s Justice and Development Project page.

 

Hannah DeJong is a student Research Fellow at the CFCJ.  She is in her first year in the JD program at Osgoode Hall Law School.

Reforming the Family Justice System: An Evidence-Based Approach

Family courts are at the epicentre of Canada’s access to justice problem.  Every weekday over 700 new separation-related cases commence in this country. [1] These cases involve Canadians from all walks of life.  Disputes over child custody and access and child support obligations are especially common, and they can have profound impacts on separating adults and on their children.

The cost of justice is often very high for separating families.  The minority who have the benefit of counsel often confront five-figure legal bills. [2] Self-represented parties, who are now the majority of family court users, often struggle to navigate a system that is often perplexing and sometimes hostile. [3]

The increasing prevalence of self-representation and continued public sector austerity are forcing governments to rethink the family justice system. [4] Recently, the Ontario Chapter of the Association of Family and Conciliation Courts asked and Professor Nicholas Bala and me to prepare a report that proposes a path forward for policy-makers.

We began by identifying the goals of the government in responding to family relationship breakdown. In short, governments today seek to advance children’s interests, and protect adults’ rights, in a cost-effective manner.   The extent to which these goals can be realized in any given case depends largely on the behaviour and circumstances of the parties. However, state policies and resources can make important contributions.

The government policies that help the best-positioned cases to achieve the best outcomes are not the same as the policies that work to protect basic rights and interests in the worst-positioned cases.   For example, mediation is a proven technique for settling cases and improving communication between separating parents, but only if there is a baseline ability for the parties to communicate.  In the significant number of family court cases with domestic violence and high conflict, mediation can be useless if not dangerous. [5] Authoritative, enforced adjudication is necessary in these cases.

Here are a few key findings from the report:

  • In adjudicating family matters, courts must decide how far to stray from time-honoured civil procedure principles with innovations such as specialized judges, case management, and inquisitorial procedure.
  • We need to do a better job spreading awareness about mediation—research suggests that it’s not consistently “on the radar screen” for separating people. [6]
  • It’s also important that mediation services offered to parents give them a genuine opportunity to create their own parenting plans.
  • Governments that are not prepared to provide full legal aid certificates to family litigants often look for more affordable ways to assist them.  New internet information campaigns and mandatory classes for court users can be cost-effective solutions.  However, self-represented litigants have told researchers that they need more process-related information to complement the reams of doctrinal material now available on the internet.
  • There is no perfect substitute for face time with an expert, and innovations such as limited–scope retainers and staffed information centres for self-represented litigants offer governments new ways to deliver this benefit.

Access to family justice scholarship is enjoying a renaissance in Canada, spearheaded by the Action Committee on Access to Justice in Civil and Family Matters, the Law Commission of Ontario, and the National Self-Represented Litigants Project.  Our report sought to contribute practical, evidence-based suggestions for provincial policy-makers.    To read the full report, please click here.

Noel Semple is a Postdoctoral Research Fellow at the University of Toronto where he is a Visiting Scholar in Centre for the Legal Profession. He is also a member of the Cost of Justice Research Alliance.

Why the Cost of Not Resolving Legal Problems May be Greater Than We Think

There is plenty of research evidence of the significant intangible costs of the lack of access to justice. Every legal problems study examining the issue has shown that physical health problems and stress-related illness are common consequences of experiencing legal problems. The Canadian research shows that about 23% of respondents with at least one justiciable problem experienced a physical health problem as a result of the legal problem or problems and 37% experienced a stress-related health problem.[1] Further, 62% of respondents said that the problem was somewhat to extremely disruptive to their daily lives.[2]  The stress these problems cause may have consequences that are magnified far beyond the difficulties in dealing with a particular legal issue.

A recent book on the dynamics sustaining poverty by Sendhil Mullainathan and Eldar Shaffir argues that the stress involved in coping with money problems has a significant and debilitating effect that reduces people’s ability to cope with other ordinary tasks and requirements in all areas of life.[3]  Using their metaphor, stress reduces the “bandwidth” available to deal with other issues. Following this argument, it is possible that the high levels of stress experienced by people dealing with legal problems may have a similar debilitating effect, reducing the bandwidth available to deal with a range other normal issues in life.  Reduced bandwidth may be a partial explanation for the trigger and cascade effects reported in the legal problems literature. Legal problems trigger other legal problems and legal problems trigger, and are triggered by, a number of non-legal problems producing inter-related problem clusters.[4]   The research by Mullainathan and Shaffir may partly explain the mechanisms underlying the trigger and cascade effects linking the experience of legal problems to broader patterns of poverty and social exclusion.

As troubling as high levels of stress and stress-related illness may be as consequences of legal problems in their own right, the intangible costs of experiencing legal problems may also lead to significant monetary costs. We can easily think of some of these. Costs to individuals can occur in areas such as lost employment or lost time from work.  Individual disadvantages can become costs to the state occurring, for example, as increased health care costs because people reporting high levels of stress say they visit doctor’s offices and other health care facilities more frequently than normal. They can also occur as increased payments for employment insurance, housing subsidies or other special services.  As well, the money spent resolving complex legal problems is money not available to be spent elsewhere in the economy. However, these costs may be only the tip of the iceberg. The reduced bandwidth argument by Mullainathan and Shaffir suggests that the consequences and costs of experiencing legal problems may bleed out in ways we have not yet fully considered. It may seep in to other areas in the lives of the individuals experiencing the legal problems and from those individuals into the lives of others who are socially connected to her or him through relationships of dependency.  It may turn out that as we research these costs more fully, that the cost of expanding access to justice to all Canadians is far exceeded by the costs of not doing so.

Ab Currie is a Senior Research Fellow at the Canadian Forum on Civil Justice

Paralegals and Access to Justice: A Case Study of Residential Tenancy Disputes in Ottawa [1]

Amidst a generally perceived crisis in access to justice, increasing emphasis is being placed on the potential of paralegals to offer affordable, efficient and effective legal assistance to people with unmet legal needs. In other words, paralegals may provide a means for re-configuring the costs of justice and thereby improving access to justice. This case study aims to identify the role of paralegals in the Ontario residential tenancy dispute resolution system and to analyze their impact on the costs of justice and access to justice, especially for low-income tenants. The impetus for this study is a concern, anecdotally expressed by participants in the “Housing Justice Program”, that paralegals are playing an important role in improving access to justice, but more for landlords than for tenants. This concern suggests that paralegals can play a role in improving the general cost and accessibility of justice, but that those improvements may not be sufficient to produce access to justice for low-income tenants.

This study has two parts, one quantitative and the other qualitative. The quantitative part of the study will first identify both the general prevalence of legal, paralegal and in-person representation in residential tenancy disputes in Ottawa. The quantitative study will then identify the distribution of paralegal and other representation between landlords and tenants. This part of the study will provide a perspective on the extent to which paralegals are re-configuring the costs of justice for parties to residential tenancy disputes. The qualitative part of the study will then survey low-income tenants as to their experiences in attempting to resolve residential tenancy disputes, with an emphasis on identifying how the costs of justice frame and influence their experiences and actions. This part of the study will provide a further perspective on the relationship between paralegals, the costs of justice and access to justice. Consideration will also be given to a further qualitative study of landlord experience with residential tenancy disputes and paralegals.

In Ontario, interest in the access to justice potential of paralegals has coincided with the Law Society of Upper Canada’s (LSUC) assumption of responsibility for regulating paralegals in 2007. With that change, paralegals were newly recognized as integral to the delivery of legal services in general, and to the delivery of affordable legal assistance more particularly.

One area in which paralegals offer legal assistance is residential tenancy disputes. In fact, a 2012 review of the first 5 years of the LSUC’s regulation of paralegals reported residential tenancy disputes are the third most frequently cited area of practice of paralegals, with 27 percent of paralegals performing work in this area [2].

On the surface, this seems like good news for low-income tenants in the private rental market – a group of people that have long struggled to access legal advice and representation for disputes with their landlords. Residential tenancy disputes are typically brought to a specialized provincial administrative tribunal, such as Ontario’s Landlord and Tenant Board (the LTB). The creation and operation of the LTB and like tribunals is very much premised on the understanding that administrative processes can offer better access to justice for everyday disputes involving low-income people than the court system. Nevertheless, being relatively more accessible than the court system does not necessarily mean that the legal rules and processes of these administrative tribunals are accessible enough. State-funded legal assistance for residential tenancy disputes is extremely limited, private lawyers are too expensive and the legal rules and processes are complicated enough to leave many low-income tenants struggling to enter or navigate the dispute resolution system on their own. Given this situation, the possibility of accessing affordable, efficient and effective legal assistance through paralegals could be a significant benefit for low-income tenants. However, anecdotal evidence has raised a concern that the access to justice benefits offered by paralegals are accruing more to landlords than to tenants.

This concern has emerged over the past couple of years from participants in a small-scale tenant-assistance project that has operated as a collaborative initiative between the members of Ottawa ACORN and law students in the Faculty of Common Law at the University of Ottawa. This “Housing Justice Program” has aimed to assist the low-income members of Ottawa ACORN with residential tenancy problems. Increasingly, participants in the program have reported that landlords have been utilizing the services of paralegals.

Of course, residential landlords are as entitled as low-income tenants, or anyone else, to access justice. So the concern is not that paralegals, by re-configuring the costs of justice, are assisting landlords in improving their access to justice but, rather, that paralegals are playing a role in a disproportionate improvement in the access to justice of landlords. In other words, the re-configuration in the costs of justice brought about by paralegals may be sufficient to improve access to justice for landlords, but not yet sufficient to improve it for tenants. If that is the case, then there is a concern that paralegals may in effect be exacerbating the power imbalances that already exist between landlords and low-income tenants and, in turn, negatively impacting access to justice for tenants. The aim of the study is to identify whether there is any such disproportion and, if so, to consider its causes and effects.

David Wiseman is a Cost of Justice Research Alliance member and an Assistant Professor in the Faculty of Law, University of Ottawa.  Find out more about the Cost of Justice Project here: http://www.cfcj-fcjc.org/cost-of-justice

Legal Aid Alberta Hosts 2013 Access to Justice Awards Gala

Each year, Legal Aid Alberta hosts the Access to Justice Awards Gala to recognize individuals nominated by their peers for their significant contribution to the community, as well as reflect on the important role each of us plays within the realm of access to justice. 

“Remember, the concept of access to quality justice is not simply a function of finances and judicial delays.  Rather, it is about public confidence.  Above all, the survival of our democracy depends upon maintaining the credibility of the judiciary and the legal profession in the minds of litigants and the public at large.  Every citizen must feel that they are able to enforce their rights under fair and reasonable conditions.”  

– The Honourable Richard Wagner, Justice of the Supreme Court of Canada,  Legal Aid Alberta Access to Justice Awards Gala, 2013.

One of the key reasons Legal Aid Alberta hosts the Access to Justice Awards Gala is to celebrate those people who have worked to ensure Albertans can enforce the rights Justice Wagner referenced under fair and reasonable conditions.  These people often fly under the radar of any glimmering lights that would shine on their exceptional contribution to our legal system in this province and, yet, they are very deserving of recognition.  Through the presentation of these awards and by drawing attention to what these individuals have accomplished, we aim to shed light on the energy and innovation that surrounds their efforts.

The recipients of the 2013 awards are:

·         Legal Advocacy Access to Justice Award: Laurie I. Wood, Laurie Wood Law Office, and roster lawyer with Legal Aid Alberta

·         Legal Advocacy Access to Justice Award:  Kevin Livingstone, Staff Lawyer, Family Law Office-Wetaskiwin, Legal Aid Alberta

·         Legal Support Access to Justice Award: Nicole Mizzi, Social Worker, Youth Criminal Defence Office-Calgary, Legal Aid Alberta

For almost 25 years, Laurie Wood has been working steadily to ensure individuals of all economic means have equal access to quality legal representation.  She regularly travels to the far corners of the province to represent and support her clients, most of whom are in crisis, with many in extreme distress and suffering from mental health issues.  Often these people are able to leave their interview feeling hopeful and uplifted, confident that they will be properly looked after through to the resolution of their legal issue.  She is unwavering in her dedication to the principles of providing her clients with the kind of quality legal representation that enshrines her belief in equal access to justice for all.

Kevin Livingstone has made it his business to provide legal support by being open to learning about Aboriginal culture and its unique struggles and celebrations.  His non-judgmental approach coupled with his compassion and encouragement has created an environment where his clients feel confident in accessing legal services.  Well known for treating his clients, colleagues, and opposing counsel with dignity and respect, Kevin is consistent in his application of high quality representation, often exploring the underlying issues from a holistic perspective.  Kevin’s efforts to help clients work through anger and difficult challenges has created a path for better outcomes for many of his clients.

It was a request from a member of the judiciary to interpret dense legalistic probation conditions to a youth with limited cognitive abilities that led Nicole Mizzi to find the needed assistance to draft a set of plain language conditions that are now available for counsel to suggest to the court.  The end result created a process, and, importantly, a result, that is meaningful to the youth involved.  It’s just one example of Nicole’s innovative, energetic approach to supporting those in need.  Through her exceptional effort in providing comprehensive profiles of clients’ circumstances and needs, a youth’s lawyer and the courts have available context documents that can be used in determining the best course of action.  Her primary objective is to support the actions of the court in helping that same youth from experiencing a cycle of recidivism and allow for a more positive future.

Also awarded was the first J. Patrick Stopa, QC Access to Justice Scholarship.  Mr. Stopa was the Legal Aid Alberta Board Chair until his death in May of 2013, and his passion for ensuring access to justice was recognized by the partners of his Calgary Law firm, Caron and Partners LLP, through a scholarship of $2000 for educational funding to a student or junior lawyer who demonstrates a commitment to ensuring access to justice in Alberta.  The well-deserving recipient is Rhyannon O’Heron who graduated from the Faculty of Law at the University of Alberta in 2013 and is currently clerking with the Nunavut Court of Justice.

It was an awards celebration that brought out more than 300 guests to acknowledge the efforts of these individuals, and each was congratulated by Premier Alison Redford and the Honourable Mr. Justice Richard Wagner – both strong, long-standing supporters of access to justice.  For more information about the awards, and to read Justice Wagner’s remarks, visit Legal Aid Alberta.

Photo: (Left to Right) Award Recipients Nicole Mizzi, Kevin Livingstone, and Laurie Wood with the Honourable Richard Wagner, Justice of the Supreme Court of Canada. 

Insights into the Cost of Evidence

How do you get credible and testable evidence without making the justice system even more unaffordable than it already is? This question was the sum of the discussion at the Canadian Institute for the Administration of Justice’s (CIAJ) first-ever student workshop held on October 10, 2013. The workshop titled, The Cost of Evidence, was facilitated by Osgoode Hall Law School professors Benjamin Berger and Trevor Farrow, and was supported by the CIAJ, Osgoode Hall Law School, and the Canadian Forum on Civil Justice.

The workshop brought together law students from schools across Canada to discuss the intersection of the rules of evidence, legal costs, and access to justice. The workshop, which was part of the larger annual CIAJ conference, allowed students to delve into discussions that related the conference theme How Do We Know What We Think We Know: Facts in the Legal System, to access to justice issues. Over the course of two hours the workshop participants considered the following questions:

  • How will the changes to the evidence rules affect the costs of trials?
  • How will these changes affect access to justice?
  • What changes to evidence rules can be made that will increase access to justice?

To provide context for the discussion, students were asked to read a paper by John H. Langbein on the historical foundation of the law of evidence, as well as the recent Canadian Bar Association report, Reaching Equal Justice: An Invitation To Envision And Act. The former was used to suggest that evidence rules should be understood as an evolution, while the latter illuminated the widespread phenomenon of a lack of access to justice, and how rules of evidence might impede access to justice.

Before long, it was clear that the rules of evidence play substantially different roles in access to justice depending on the sphere of the legal system (i.e. in a criminal court, in an administrative tribunal, in a setting of self-represented individuals, in mediation, etc.). But what kind, and how many rules of evidence are appropriate in each of these settings became uncertain in the discussion that ensued.

Should each legal arena have different rules of evidence? Would using principles rather than rules be a more appropriate approach in some cases? Ultimately, what emerged from the workshop was a sense that evidence should not be treated as separate from the larger legal system, rather it should be seen as intertwined and inseparable from it.

While no one could posit a clear solution as to how to get credible and testable evidence without making the system unaffordable, it was encouraging to see this question being asked by a new and eager group of legal practitioners. It inspired hope that the question may be answered in the future.

 

FURTHER READING:

Langbein, John H. “Historical Foundations of the Law of Evidence: A View from the Ryder Sources” (1996) 96 Colum L Rev 1168.
http://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=1538&context=fss_papers 

Reaching Equal Justice: An Invitation to Envision and Act (August 2013), online: Canadian Bar Association
​<http://www.cba.org/cba/equaljustice/secure_pdf/Equal-Justice-Report-eng.pdf>.

Is “Business” a Dirty Word in Law?

I remember being told at law school (not that long ago) that lawyers were more than “mere” legal plumbers.  The implication was that law was a profession (i.e. good, reputable), not a vocation (i.e. bad, dirty).  And indeed, as Professor Wesley Pue has noted, there is a long history within the legal profession of praising high-minded professionalism while denigrating the crass commercialism of business.[1]

I began to question how lawyers think about the business side of what they do while doing research for my LLM.  My research included a case study of Pivot Legal LLP, a full-service law firm in Vancouver’s Downtown Eastside neighbourhood, which had the dual goals of providing income for the well-known legal advocacy Pivot Legal Society and delivering affordable legal services within the community.  During my interviews, I heard many comments to the effect of “law is a business”.  The implication was clear: without a viable business model, efforts to provide accessible legal services will be short-lived.

The choice between profession and business is a false dichotomy.  Lawyers who are interested in their profession should also be interested in how law operates as a business.  Work settings have important effects on people, including decisions to remain in legal practice or not.[2]  My own work has suggested that dissatisfaction with current business structures could encourage lawyers to take steps to do things differently in order to improve access to justice.

Taking “the business of law” seriously has important implications for access to justice.  The recently-released CBA report, Reaching Equal Justice: An Invitation to Envision and Act, makes a strong case for lawyers and other legal service providers to innovate to deliver more accessible services.  But how far will this call to embrace innovation and entrepreneurialism be heard?

The profession/business divide is a concept that is often embedded in lawyers’ conceptions of their role.  Access to justice research has historically not focussed on how business and practice decisions affect access to justice.  Notwithstanding recent discussion of “unbundled” legal services, there has been relatively little systematic analysis of how the business of law affects access to civil justice.[3] This must change.  In the world of corporate affairs, there has been an increase in awareness and discussion of socially beneficial businesses in recent years, including structures such as “low profit limited liability companies”, “benefit corporations”, and “community interest companies”.[4] It is possible to imagine analogous practice organizations in law that aim to improve access to legal services.

The CBA’s Legal Futures Initiative may be a good place to start this conversation.  But in order for people to engage in that discussion, they will need to engage with the reality that law is both a profession and a business.  Increasing lawyers’ understanding of the market for legal services may help elucidate reasons why legal services are as inaccessible as they are.  It may also help identify ways in which lawyers – and others – may provide legal services in ways that allow those who need but currently do not access legal services to do so to a greater degree.

Is it possible to provide affordable legal services with current regulatory and funding models?  What are the barriers to more practice innovations to improve access?  Should law schools play a role in introducing future lawyers to the business of law?

These are questions worth pursuing.

 

Andrew Pilliar is PhD student at the UBC Faculty of Law

 


 

The National Self-Represented Litigants Project

“I have no choice – I am unrepresented not self represented. Its not that I think I can do this better than a lawyer, I have no choice. I don’t have $350 an hour to pay a lawyer.”

“I was scared out of my mind. But I had a hard choice – either learning to do this for myself, or letting my daughter go, forever.”

The two quotes above are typical examples of what I heard from respondents in my study on self-represented litigants (SRL’s) in family and civil court. They dispel the myth that SRL’s have illusions of grandeur that they can do as good a job as a lawyer. In fact, the vast majority are desperate people with no more funds to pay for counsel (53% began with a lawyer but ran out of money to pay them).

The rise in the number of people representing themselves and the enormous frustration expressed by virtually all of them requires our immediate attention. The erosion of faith in the justice system is plain in the research data (which you can read about in the study’s Final Report).

The Final Recommendations of the study pull together the research data and the significant work accomplished by the working groups at the Dialogue Event in May. They are presented as 10 Action Steps for responding to the SRL phenomenon.

Windsor Law has agreed to house and to fund the ongoing work of what are now launching as the National Self-Represented Litigants Project (NSRLP). We are grateful to Dean Camille Cameron and the faculty at the “Access to Justice Law School” for their support, as well as our wonderful Advisory Board (which now includes CFCJ’s own Trevor Farrow).

Over the summer, we have responded to innumerable enquiries from both SRL’s and justice system professionals to develop three major areas of activity for the NSRLP. These are:

  • Research;
  • Resources; and
  • Dialogue & Collaboration.

Among other projects, we will be:

  • producing a bi-monthly newsletter for everyone affected by the SRL phenomenon;
  • building resources for both SRL’s and researchers/ justice system professionals;
  • continuing to collect SRL stories through a self-completed survey on our website;
  • working on new initiatives to assist SRL’s in courthouses, convening discussions about change among professional leaders; and
  • acting as a Speaker’s Bureau for SRL’s (placing SRL’s in policy working groups, as testers for new online materials, presenting their experiences at professional conferences and in law school classes).

We are also working on a plan in partnership with IAALS to replicate the original research study in three US states.

For further information on this project please contact Julie Macfarlane (julie.macfarlane@uwindsor.ca) or Sue Rice, the Project Manager (suerice@uwindsor.ca).

Reaching Equal Justice: An Invitation to Envision and Act

The post was originally published on the Oxford Human Rights Hub blog.

The year is 2030 and all people living in Canada have equal access to justice regardless of means, capacity or social situation.  The justice system is designed around people’s needs taking into consideration differences in the legal needs of different individuals and groups and providing timely and personalized assistance, responding holistically to the legal and non-legal dimensions of problems and ensuring meaningful and effective assistance to navigate a range of paths to justice to achieve lasting and just outcomes.  People are empowered to manage their own legal matters with an emphasis on prevention where feasible and to participate in overseeing the justice system as a result they feel a strong connection to it and as a result there is a strong sense of public ownership.  Practices are evidence-based and the justice system is a nurturing environment for innovation and consists of learning organizations committed to continual improvement.

This ‘ambitious but possible’ vision of equal justice is at the heart of the Canadian Bar Association’s Access to Justice Committee’s recent report, Reaching Equal Justice: An Invitation to Envision and Act.  The Committee starts from the premise that 100% access is the only defensible goal while recognizing the current abysmal situation, which in fact reinforces rather than mitigates inequalities.   Rejecting piecemeal reform, the report sets out 31 concrete targets organized around six major themes. Three themes delineate the substance of reform (facilitating everyday justice, transforming formal justice, reinventing the delivery of legal services) and three set out the required support structure (building public engagement and participation, building collaboration and effective leadership and building the capacity for innovation.  While the targets are framed as long-term goals to be achieved by 2020, 2025 or 2030, the report also contains a range of indicative actions to be initiated today and interim goals to serve as markers of progress in achieving the targets.

The targets include:

By 2020:

  • Individual and systemic legal health checks are a routine feature of the justice system.
  • Each provincial and territorial government has established effective triage systems guiding people along the appropriate paths to justice.
  • National benchmarks for legal aid coverage, eligibility and quality of legal services are in place with a commitment and plan for their progressive realization across Canada.
  • Effective, ongoing collaborative structures with effective leadership are well-established at the national, provincial, territorial and local levels, including through the appointment of access to justice commissioners.
  • The first annual access to justice metrics report is released; by 2030, this report is comprehensive.

By 2025:

  • Courts are re-centred within the civil justice system and resourced to provide tailored public dispute resolution services with effective internal and external triage and referral processes.
  • A wide range of alternative organizational models for the provision of legal services exists to meet the legal needs of low and moderate income Canadians, including those living outside major urban centres.
  • The justice system does not rely on volunteer legal services to meet people’s essential legal needs.
  • Justice system stakeholders have substantially increased their innovation capacities by committing 10% of time and budgets to research and development.

By 2030:

  • 5 million Canadians have received legal capabilities training.
  • Substantial experiential learning experience is a requirement for all law students.

Reaching Equal Justice is an invitation to the legal profession and all justice system stakeholders, including the public, to seize the moment of opportunity created by a broad Canadian consensus on the need for significant change and an evolving consensus on the broad directions for reform.   In a riff on the idea of thinking globally, acting locally, the Committee calls on each of us to think systemically, act locally:  to keep the vision of equal justice in mind, integrating this change in perspective into every day approaches, finding small ways to both meet the needs of clients/justice system users while contributing to systemic reforms.  It is by thinking systemically and acting locally that we can create real space for justice innovation.

Rather than simply reading this report, the Committee asks the reader to engage with it. It calls on everyone to consider the targets proposed and the change-oriented ideas presented and to ask: what can I do, either myself or working with others, to contribute to equal access to justice? The call to action is based on the understanding that every contact between an individual and the civil justice system is an opportunity for either disempowerment or empowerment, a moment to reinforce inequality and social exclusion or to create equality and inclusion. The challenge is clear: we understand the problems, we know what to do, now we have to “just(ice) do it”!

For more information visit: http://www.cba.org/cba/equaljustice/main/default.aspx

Climbing the HiiL of innovation: A book review of Innovating Justice: Developing New Ways to Bring Fairness Between People

Innovating Justice by Sam Muller and the team at The Hague Institute for the Internationalization of Law (HiiL) is a very timely and valuable source of ideas about developing and implementing innovations in the justice field. Based on their pioneering work at the Justice Innovation Lab in The Hague, the authors provide food for thought for anyone contemplating entering the promising but often challenging waters of innovation. Let me share a few of their insights:

  • Innovation is not a simple, linear process. Innovation is an evidence-based and risk-taking activity. Innovators and, especially, the funders of innovations have to be prepared to learn from mistakes and use them as stepping-stones.
  • Innovation is rarely the product of a brilliant flash of inspiration. It involves sustained hard work to develop ideas, engage stakeholders and implement and test innovations. Inspiration, however, is the essential ingredient that allows you to sustain the work it takes to innovate.
  • Innovation requires structure. The HiiL has developed a Justice Innovation Lab with a brainstorming, scrum-like environment that draws out ideas and engages stakeholders—including those people who are experiencing the problem and who those who will use the innovation. The innovation lab provides the time and space needed for incubating ideas. It is a space that brings people together to exchange ideas.  Importantly, the lab is portable. It can gather people in a central place or it can go to where the problem is.  One of the most important aspects of the innovation lab is having well-developed processes for fostering participation, addressing the needs of stakeholders and for generating and testing ideas.
  • Finally, innovation requires knowledge. An innovation lab must have the capacity to draw on a comprehensive and up-to-date body of knowledge to feed the process. This knowledge can be gained from examining examples of innovations from different parts of the world, tapping into international research networks and listening to those who have first hand experience with the problems at hand.

The HiiL innovation process is built around six major building blocks.

1. Focus on Citizen’s Needs. Engage the people who are experiencing the problem or the need. Find out how they are experiencing the problem, what solutions they feel would work for them and what outcomes they would be happy with.

2. Release the Mind. Innovation involves breaking rules and normal practises. The professional training and socialization of legal professionals may limit the skills available in the justice sector; go outside to get different perspectives on what might work.

3. Shape Solutions.  Work backwards from outcome goals. Select the most fruitful ideas from around the world and from outside the box. Build prototypes but avoid early standardization or premature closure. Have a clear idea of what makes the solution new and unique and why it is better than what is already there.

4. Reframe the Constitution.  A promising innovation may be revolutionary. It may involve very different ways of doing things and new partners or participants. A new way of doing things will frequently produce winners and losers.  Determine what reactions can be expected and how you should respond. A vision is not sufficient in and of itself. However, a vision is needed to animate and inspire the process and to transform purpose into action. Recruit influential champions to support the vision.

5. Judge the Business. Although justice has value in itself, quantify the economic benefits and determine the sustainability of the innovation. Plan the costs and the cost savings. Focus on the key partnerships, resources and skills that will be required to implement the innovation successfully. Can savings be made on the cost of professionals where they are not really needed?  Can some functions be outsourced?

6. Get it Done.  During the implementation stage determine how the innovation is organized to stay focused and manage by results.  It is easy to get sidetracked! Set up the project to ensure there is continuous monitoring and feedback. There must be continuous learning and adjustment as the project moves forward.  Determine the metrics for success and how to measure them.

This is a practical book on strategies for successful innovation. The book is based on the successful innovations HiiL has developed at the justice innovation lab and projects from around the world that the Hiil Team have studied in the course of their work.  With hundreds of years of experience between them, the experiences of the authors, so well distilled and presented in the book, makes Innovating Justice essential reading for anyone wanting to invest time and resources in justice innovation.

The publication of Innovating Justice is timely in Canada as the need for justice innovation has never been more pressing. Budgets across justice systems are being cut or are not keeping pace with normal cost increases and the urgency of long standing needs, that have never been met, loom ever greater. The results of legal problems research following the justiciable problems methodology have uncovered layers of legal need that were previously not considered legal at all, rather, just the problems of the poor.  And, finally, it is becoming increasingly clear that holistic approaches to legal problems for which we currently do not have the service delivery infrastructure are the only way to provide effective and durable solutions to many legal problems.  Although innovation, driven by the need to do more with less, has been a perennial fixture in the delivery of legal services, the pressure to innovate is increasing.

Despite these problems, the environment for innovation in Canada has never been more promising. The final report of the Action Committee on Access to Justice in Civil and Family Matters will soon be released with recommendations for expanding access to justice in Canada and the Canadian Bar Association has just released their report, Equal Justice: Balancing the Scales, which contains a and ambitious and forward thinking “justice plan”.  These reports are encouraging and suggest that an environment for innovation is emerging from this unique moment in the history of access to justice in Canada.

Breaking the Barriers to Family Justice

On July 22, 2013, the Law Commission of Ontario (LCO) released the final report for their Family Law Project: “Increasing Access to Family Justice through Comprehensive Entry Points and Inclusivity”. The report, which the result of over three years of consultation and study, makes a number of innovative recommendations and adds a welcome voice to discussions on family law reform.

The Problem with the Family Justice System

Obtaining a separation, divorce or dealing with child custody is a painful experience. It is emotionally, physically and financially draining. It is also a difficult period of adjustment, where individuals are forced to deal with the absence of their partner and the deterioration of their marriage all while adapting to new living arrangements. One of biggest challenges many people face during this period is navigating through the justice system. There have been a number of concerns raised about the inaccessibility of the family justice system due to its adversarial nature, inordinate delays and the unaffordability of legal services. It has often been argued that the family justice system should be the “last resort” in cases involving divorce and that other alternative dispute resolution mechanisms such as mediation should be used instead. This is because the family justice system can actually contribute to increasing emotional turmoil between the parties often leading to the escalation of disputes rather than their resolution.

The family justice system is also based on hegemonic family values. As a result the system has a difficult time accommodating the diverse family needs, structures and arrangements that exist in Ontario. Despite the complexities in any given case and the diversity in parties’ economic status, geographical location, gender, ethnicity, race, religion, culture, and sexual orientation, there is still a presumption that all the cases brought to the family justice system can be resolved in the same manner. This often results in individuals not only feeling isolated but also feeling excluded from the family justice process.  Family law in particular, involves a specific understanding of the welfare of children, the trauma of separation and divorce, the consequent emotional and psychological changes, the diverse cultural expectations and family structures of various ethnic groups.[1]

Making Changes to Increase Inclusivity and Accessibility

In an attempt to address these issues, the LCO Report provides some very useful and detailed information about the nature of Ontario families. It examines, in particular, the barriers faced by many Ontarians and emphasizes,

“… the need for the system to respond to the evolving pluralist nature of Ontario’s population, and addresses how factors such as literacy levels, cognitive disabilities and geographic location, among other characteristics, affect how easily people can access and use information, the affordability of legal representation and the degree to which legal problems are affected by other kinds of problems.”[2]

One of the major recommendations made in the LCO Report is that the government create or enhance the multidisciplinary, multifunctional centres or networks that link with “trusted intermediaries” such as cultural centres.” These multifunctional centres will gather together a group of professionals that can assist with both legal and non-legal problems.

It is important to note that many family law problems are not just legal problems. They often connect to an array of other social and/or economic issues. The triaging of legal problems is one of the most efficient and cost effective ways of dealing with many family disputes. By focusing on this, the LCO Report adds to a growing body of research that suggests that it is no longer possible to address legal problems in isolation from other “non-legal” problems. For example, substance abuse, mental health and financial difficulties may in fact be at the root cause of the supposed legal problem. An effective family law system will help identify when litigants’ problems are not, in fact, legal and should be dealt with by other professionals.
Strengthening collaboration between lawyers, social workers, and financial professionals, among others, who can find practical and long-lasting solutions for different family situations, is a more efficient way to deal with family issues.

 

Further Reading

Law Commission of Ontario, Increasing Access to Family Justice through Comprehensive Entry Points and Inclusivity (Toronto: February 2013).

Action Committee on Access to Justice in Civil and Family Matters. Meaningful Change for

Family Justice Beyond Wise Words. Final Report of the Family Justice Working Group of the Action Committee on Access to Justice in Civil and Family Matters (April, 2013).

Brownstone, Harvey. Tug of War: A Judge’s Verdict On Separation, Custody Battles, and the Bitter Realities Of Family Court.  (Toronto: ECW Press, 2009).

Accessing justice… from the cottage?

In August I get more of “Out of the Office” automatic email replies than any other month. I suspect (and am very envious of the fact) that many people have fled their offices, trading them in for lakes, canoes, cottages and long summer days on the beach. So in honour of this exodus, and as a reminder that not everyone has easy access to the people and services that administer justice, we’ve complied on our blog some of the most recent papers on A2J and technology for you to read on the dock. We’ve also included the links to some new (and often controversial) A2J initiatives that that are attempting to make access to justice easier, more efficient, and more widely available. Happy summer!


Read about it: A2J & Technology Papers


See it in action: Innovative A2J Online Initiatives

 

 

  • GripeVine
    Gripevine is a new forum for resolving consumer problems.  The website allows users to share complaints with friends, followers and with company executives who have the power to resolve the complaint.

Interesting note: Gripevine contains at least one complaint against the Canadian Justice System: http://gripevine.com/business/law-society-upper-canada-20807752

Are health problems legal problems in disguise?

Access to justice as a social determinant of health

Social Determinants of Health

It is well understood that those at the bottom of the social gradient have shorter life expectancies and experience more health problems at a higher rate than those who are well-off.[1] The societal factors that cause this disparity are referred to by social scientists as “social determinants of health”. According to the World Health Organisation, social determinants of health are “the conditions in which people are born, grow, live, work and age” with these circumstances being shaped by the distribution of money, power and resources. When people experience things like poor housing, insecure employment, inadequate education and other disadvantages, the negative effects on health accumulate throughout life.[2] Many of these problems may actually be unmet legal needs that can be dealt with in a poverty law practice. In other words, legal services have the power to impact social determinants of health, and I propose that access to these services can be a social determinant of health in itself.

Legal problems in disguise

Health problems are sometimes legal problems in disguise. Consider, for example, a child who is brought to the emergency room multiple times, suffering from asthma attacks. At first glance, her attacks appear to be a very straightforward health problem; the doctor should treat her symptoms and send her on her way. However, what if the underlying problem is a legal one? What if the landlord of the family residence refuses to remove the mould that is exacerbating the child’s asthma? This health problem has just become a legal one, and a legal solution through landlord-tenant law is necessary to attain a lasting solution.

If inequitable social structures are most often the systemic causes of ill health, legal interventions will be more effective if they target these structures.[3] Consider again the example above. The negligent landlord is only the manifestation of a larger social problem. Addressing the overarching problem of poor health conditions in substandard housing and the lack of affordable housing (e.g. through a test case or law reform initiative) would target the root cause of this child’s problem, and the problems of countless others.

Putting theory into action: Medical-Legal Partnerships

If the underlying social causes of poor health are often civil legal problems, collaboration between health professionals and lawyers through medical-legal partnerships (MLP) offers an innovative way to address these problems. According to the US National Centre for Medical-Legal Partnership (NCMLP), “[m]edical-legal partnership is a health care delivery model that improves the health and well-being of low-income and other vulnerable populations by addressing unmet legal needs and removing legal barriers that impede health.” The NCMLP approach has three core components: it directs services for patients and families within healthcare facilities; it provides training for health care staff; and it engages in joint medical-legal systems advocacy. Benefits of the MLP approach can be seen across the United States and in Canada’s first MLP at the Hospital for Sick Children in Toronto.[4]

A powerful argument for access to justice

Framing access to justice as a social determinant of health has far-reaching implications. Proof of a causal relationship would be a powerful weapon in the arsenal of both justice and health advocates. If access to legal services can improve health outcomes in a cost-effective manner by stopping the problems “upstream”, this could spur health policy-makers to invest in access to justice initiatives. Similarly, evidence that access to justice has positive consequences that extend further than the courthouse could increase public support and political will for making the system more accessible. If access to justice is considered a social determinant of health, and action is taken to improve access, the result could be a healthier and more just society.

Further Reading

Carmean, Monica. “Medical-Legal Partnerships: Unmet Potential for Legislative Advocacy” (2012) 19 Geo J on Poverty L & Pol’y 499.

Jackson, Suzanne F et al. “Hospital-Legal Partnership at Toronto Hospital for Sick Children: The First Canadian Experience” (2012) 15:4 Healthcare Quarterly 55.

Schulman, David I et al. “Public Health Legal Services: A New Vision” (2008) 15:3 Geo J on Poverty L & Pol’y 729.

Innovating Justice: Ideas from the Netherlands

The semi-annual meeting of the International Legal Aid Group (ILAG) is the pre-eminent international legal aid conference in the world. Delegates from about 25 countries, including Asian, African and Latin American nations, attend this conference. The focus of the ILAG is on access to justice in European nations, as well as other common law countries. The conference series began twenty years ago in The Hague as a small group of legal aid researchers and policy-makers gathered together to discuss policy and program developments in the Netherlands occurring at that time. Since then, the ILAG conference has become a valuable event for researchers and policy-makers to discuss on-going research and policy initiatives in view of meeting the challenges in administration of legal aid, as well as access to justice barriers in general.

This year, the conference theme, Legal Aid in Difficult Times, offered the opportunity for speakers from around the world to share their reserach on issues ranging from the role of new technologies in securing access to justice, to how jurisdictions from around the world are coping with budgetary restraints that have challenged their ability to provide legal services. A presentation by Ab Currie from the Canadian Forum on Civil Justice and Michele Leering from the Community Advocacy and Legal Centre examined the role of intermediaries in expanding access to justice services to the disadvantaged. Intermediaries working in a true partnership with lawyers can extend the reach of lawyers, provide access to groups that are otherwise very difficult to reach and can assist professional legal service providers in offering more holistic assistance. These intermediaries provide knowledge about communities and clients to which lawyers do not have the skills to assess. For example, Richard Cohen, the CEO of Epoq Legal Limited, discussed how a private sector for-profit company can successfully provide unbundled on-line legal assistance at a relatively low cost when compared with conventional lawyers’ fees. The message to the traditional legal services providers was clear: if you do not find a way to provide legal services at a cost that people are willing and able to pay, someone will move in and take the business from you. Another presentation, this one delivered by Bonnie Hough, the manager of several California court-based self-help programs, focused on the utility of these kinds of programs in state civil courts. In California, self-help generally means having lawyers advise and review court documents for pro se or unrepresented litigants, but not actually representing them. Hough’s experience suggests that well-prepared self-representing litigants raise questions about their real lives rather than legal issues and employ other tactics frequently used by lawyers. Hough suggests that this is probably better for judges (who are “holistically” oriented) to solve peoples’ legal problems. These three examples provide only a flavour of the interesting discussions at the ILAG conference. Readers should go to the ILAG website at www.Ilagnet.org to access material from the 2013 and previous conferences.

Profiling Innovation

There is a lag between the circulation of new ideas and experimentation with innovative approaches on the one hand, and their widespread adoption within the justice system on the other. For this reason, approaches to justice innovation pioneered by HiiL are of great interest. The HiiL is a research and advisory organization that provides justice strategy advice and promotes justice innovations with an overall focus on the functioning of national justice systems in a globalizing world. Two of the sessions at the ILAG conference focused on the innovative research happing at the HiiL. Professor Maurits Barendrecht offered a number of important observations on strategies for change in access to justice. Noting that traditional services consume a vast majority of the money spent on justice (often, regardless of cost-effectiveness), Barendrecht asked wither such a strategy maximizes effectiveness and efficiency. He stressed that there are an expanding number of innovative approaches from which to learn, however, taking advantage of new opportunities requires different strategies , which challenges strategic decision-makers in the traditional justice system.

Professor Barendrecht is a key member of the Justice Innovation Lab team at HiiL. The Justice Innovation Lab is like any other lab – it is a place where new ideas are developed and tested – only the ideas and strategies being tested will improve access to justice. In his ILAG presentation, Barendrect spoke about the work being done at the Justice Innovation Lab. Over about the last five years, the Lab has developed a method for innovating justice. The following summarizes in a very general way some of the main features and lessons learned from the many projects undertaken at the Justice Innovation Lab:

  • Focus on citizen’s or client’s needs first. Find out who are the users. Who will be affected?  What are their needs?
  • Involve users of the development of the innovation directly, fully and first.
  • Put conventional legal thinking on hold. Bring in a diversity of skills and knowledge. Create and nurture the environment and capacity for creative thinking.
  • Allow time for ideas to incubate.
  • Work backwards from outcome goals. Select from a range of potentially fruitful ideas. Brainstorm all possible solutions. Create models and prototypes.
  • Recognize and include all the stakeholders. Identify all the essential partners required to make the idea work. Determine who stands to lose. Mediate approaches that avoid conflicts creating winners and losers.
  • Quantify the value of the innovation – not only what it will cost. Determine what investments are needed in both money and other resources. Determine how the innovation will be made sustainable.

The Justice Innovation Lab at HiiL has produced many different types of justice innovations. One was the well-known index for measuring the cost and quality of justice; another involved work on the highly regarded Rechtweiser, the on-line dispute resolution system, which is now part of the Dutch legal aid service delivery model. The Prison Paralegal Justice centres in Kenya, where prisoners advise other inmates on legal issues, are an example of one of the many international projects successfully developed by the Lab process. One of the earliest projects was the development of a process for resolving personal injury disputes for the Dutch government. This project took three years to complete and involved nearly a hundred different organizations. The latter example suggests that the actual Innovation Lab process will vary considerably depending on the size, duration and other defining characteristics of the project. However, the basic approach applies generally and has proven itself over many different projects. Importantly, the Innovations Lab process is portable; this could be important for a large and diverse country. HiiL seems to have got it right and the Justice Innovation Lab might be a promising approach to moving forward and expanding access to justice in Canada.

The State of Civil Legal Aid in Canada: By the Numbers in 2011-2012

Introduction
Historically, legal aid was the first response to the access to justice problem. At present it occupies by far the largest terrain in the access to justice landscape in Canada. Access to justice in Canada is poised on the edge of significant changes encouraged by the work of the National Action Committee on Access to Justice in Civil and Family Matters, led by Chief Justice Mclachlin and Justice Cromwell of the Supreme Court. As these changes play out over the coming years the legal aid system is in a potentially powerful position to play a major role because of its large presence in access to justice. Thus the vitality of the legal aid system is of major importance. This note presents a brief statistical picture of the current state of civil legal aid in Canada.[1]

Legal aid in Canada is provided by 13 legal aid organizations, one in each province and territory. Each legal aid “plan” as they are called in Canada is a statutory body created by the province or territory, but operating at arm length to government governed by an independent board of directors.[2]

Government Funding
On average provincial and territorial government contributions make up 92 percent of all legal aid funding. Across the 13 jurisdictions the level of government funding ranges from 78% to 100% of legal aid expenditures. The high level of government funding is significant in itself. Notwithstanding questions about the adequacy of funding to meet the needs for legal aid services this expresses a principle that the provision of legal aid is primarily the responsibility of government.

Over the past five years provincial and territorial contributions to legal aid overall, including both criminal and civil legal aid,[3] increased by 19.7% in current dollars from $492,943,000 in 2008-2009 to $590,196,000 in 2011-2012 Over the same period contributions from government increased by 11.7% in constant 2002 dollars from $442,101,000 to $492,224,000.

The percentage of funding from government sources increased over the five-year period from 84% in 2008-2009 to 92% in 2011-2012. Monies from client contributions declined over the period from 4% to 3%. Contributions by the legal profession remained constant at 1%. Revenues from investments, primarily interest on lawyer’s trust accounts from Law Foundations, declined from 12% of all funding for legal aid to 4%.

Expenditures on Civil Legal Aid
Direct service expenditures on civil legal aid increased by 18.9% in current dollars from $259,946,000 in 2007-2008 to approximately $309,022,000[4] in 2011-2012.  Expenditures increased for all legal aid plans over the past 5 years. Direct service expenditures were down in three provinces between 2009-2010 and 2010-2011. Annual fluctuations in the data occur frequently. Therefore, this brief article focuses primarily on the most recent five-year period.

Civil and Criminal Legal Aid
Because legal representation in criminal matters has a stronger foundation in the Constitution than civil, spending on criminal legal aid is usually taken as the benchmark for spending on civil legal aid. Overall, more money is spent on criminal than civil legal aid in Canada. Based on estimated 2011-2012 figures to adjust for missing data direct service expenditures on civil legal aid made up 47.7% of total direct service expenditures on criminal and civil combined. In three provinces, Prince Edward Island, Ontario and Quebec direct service expenditures on civil legal aid exceeded expenditures for criminal legal aid.

Family and Other Civil Matters
Most civil legal aid is in family law. In 2011-2012 legal aid in family law accounted for 61.8% of direct service expenditures, with 38.2% on non-family civil matters[5]. This mirrors the proportions based on services provided. In the same year 61.6% of approved applications were for family matters while 38.4% were for legal aid services in non-family civil areas of law.

Demand for Service and Level of Service Provided
Demand for civil legal aid, measured in terms of total applications for service, declined over the five-year period from 2007-2008 to 2011-2012. The total number of applications declined by 4.8% from 432,273 to 411,628. A decline in demand would not have been expected following the great recession in late 2008 and the slow economic recovery since.

There was essentially no change over the previous five years in the level of full service measured in terms of approved written applications for legal aid. In 2007-2008 legal aid plans approved 209,877 approved applications compared with 209,936 in 2011-2012.

The number of duty counsel services in civil matters increased by 19.3% over the past five years, rising from 207,112 in 2007-2008 to 284,686 in 2011-2012. Duty counsel services were mainly provided in family court. Family duty counsel made up 92% (261,972) of all duty counsel matters in 2011-2012.

The number of refused applications in civil matters increased between 2007-2008 and 2011-2012 in five out of eight jurisdictions that reported data.[6]

A Longer View
The current levels of expenditures and services are considerably lower than their historical high levels in the early to mid 1990’s. In 1994-1995 direct service expenditures on civil legal aid were $329,787,000. This was $11.37 per capita. In 2007-2008 per capita direct service expenditures had declined to $7.89 per capita ($259,946,000). Per capita direct service expenditures on civil legal aid increased to $8.96 in 2011-2012 ($309,022,000). This represents a 13.6% increase in per capita direct service expenditures over the recent five-year period. However, it reflects a 21.2% decline from the level of per capita direct service expenditure in 1994-1995.

Similarly, approved applications for civil legal aid reached their historical high of 17.8 per 1000 population (505,787) in 1992-1993. Approved applications declined to 6.4 per 1000 population in 2007-2008 and to 6.1 per 1000 population in 2011-2012. Approved applications per 1000 population declined by 65.7% from the historical peak in 1992-1993.

Conclusion
The numbers tell of good news in the recent past and bad news over the longer term. Over the past five years legal aid expenditures have increased. Government is by a wide margin the primary funder of legal aid and this is increasing in relative terms as other sources of revenue falter.

The increased demand for civil legal aid that might have been expected in the wake of the great recession has not shown up in the data on total applications. However, legal aid has held its ground in terms of the amount of full services provided (approved applications) and has increased the number of duty counsel services.

Legal aid has never fully recovered from the cuts to legal aid that followed the recession in the early 1990’s. Levels of expenditure and service are much lower in per capita terms than they were in the early to mid 1990’s. Civil legal aid in Canada is not as healthy as it was in its younger years but, in mid-life, it is at least holding its own. However, it probably will not play the important, and perhaps key, role it might in the evolution of access to justice in Canada without resources to repair the erosion that two recessions have left in their wake.