Access to Justice: Highs and Lows of Pro Bono Week

This article originally appeared on The Lawyer’s Daily on November 5, 2018. It is the twelfth article in The Honourable Thomas Cromwell’s exclusive Lawyer’s Daily column dedicated to access to civil and family justice.

The last week of October is Pro Bono Week, a global celebration of the pro bono ethic in our profession. Across Canada and around the world, thousands of legal professionals provide their services without cost for the public good. In Canada, where there is a wide and growing gap between the need for legal services and people’s ability to gain access to them, pro bono is a part of the effort necessary to fill that gap.

We entered Pro Bono Week on a wave of optimism and achievement generated by the Seventh National Pro Bono Conference held in Vancouver on Oct. 4 and 5. The packed agenda included presentations by the chief justice of Canada, the chief justice of British Columbia, the attorney general of British Columbia and the president of the American College of Trial Lawyers.

The message from the top was clear: pro bono work by lawyers is part of our professional responsibility and its importance to the welfare of our community cannot be overstated. The large attendance at the conference and the lively engagement evident in all of the sessions generated optimism and enthusiasm.

While we can and must do more, there is much to celebrate.

But not all of the news about pro bono is good. Pro Bono Ontario (PBO) has indicated that in December it will have to close its court-based programs — two in Toronto and one in Ottawa — for want of funding for the administrative support essential to running these programs. PBO says that each year, volunteer lawyers help more than 18,000 clients in the civil, non-family justice system and, at the same time, reduce delays in the courts’ handling of these matters. An evaluation of the programs concluded that they provided a 10:1 return on investment. In other words, the public purse saved $10 for every dollar in funding. But that is apparently not enough to persuade potential funders to inject the modest resources needed to assure that these programs continue.

David W. Scott, one of the “parents” of these programs, has for many years spent a morning each month at the Law Help Centre at the Ottawa courthouse. He told me that during his October shift, he saw five people:

a single mother who is being pursued by a government department for  support payments;

a friend of an Arabic woman who speaks no English who is defending herself from a landlord’s claim for rent;

a young man on parole who was the victim of a fraudulent claim when he was incarcerated;

a young mother who was being sued for return of employment insurance; and

a woman being sued for alleged non-payment of taxes.

Through the court-based program, David was able to provide modest but critical help. The closure of the Law Help Centre will mean that people like those who David saw — people in their thousands — will be left to their own devices. The need for these services is obvious and compelling.

The willingness of legal professionals to provide these pro bono services has been demonstrated. The business case for doing so seems unanswerable. But even this is not enough to save these programs.

Scott says that he is heartbroken. The rest of us should be ashamed. Who can seriously contend that we cannot find the modest resources needed to maintain these valuable services? If we wanted to, we would.

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 Publishes New Cost of Justice Reports

Lisa Moore
Canadian Forum on Civil Justice

The Canadian Forum on Civil Justice (CFCJ) has published three new reports based on data from their Everyday Legal Problems and the Cost of Justice in Canada study.

EVERYDAY LEGAL PROBLEMS AND THE COST OF JUSTICE IN CANADA – SURVEY DATA

The full data set from the CFCJ’s Everyday Legal Problems and Cost of Justice of Justice in Canada survey is now available! As part of our national 7-year study on the Cost of Justice, we surveyed over 3,000 adults in Canada to learn about their experiences with civil and family justice problems, the costs (monetary and non-monetary) of experiencing one or more civil or family justice problems and their views on the justice system. Findings from this national research project continue to inform reports, plain language resources, and other publications and influence policy thinking on meaningful ways to improve access to civil and family justice in Canada and elsewhere. The newly published Cost of Justice survey data report is available on the CFCJ website here: http://cfcj-fcjc.org/wp-content/uploads/Everyday-Legal-Problems-and-the-Cost-of-Justice-in-Canada-Cost-of-Justice-Survey-Data.pdf.


EVERYDAY LEGAL PROBLEMS AND THE COST OF JUSTICE IN CANADA – INCOME

Is there a connection between annual household income and experiences of civil or family justice problems in Canada? Is how much you earn annually correlated with the types of civil or family justice problem that you might experience? A new Cost of Justice report is now available that includes data from the CFCJ’s national Cost of Justice survey organized into three annual income earning groups: Less than $60,000, $60,000 – $125,000, and More than $125,000.  View the Everyday Legal Problems and the Cost of Justice in Canada – Income report on the CFCJ website here: http://cfcj-fcjc.org/wp-content/uploads/INCOME-Everyday-Legal-Problems-and-the-Cost-of-Justice-in-Canada.pdf.


EVERYDAY LEGAL PROBLEMS AND THE COST OF JUSTICE IN CANADA – SPENDING ON EVERYDAY LEGAL PROBLEMS

Almost 50% of people who experience an everyday legal problem spend some money trying to resolve their problem. Based on findings from the CFCJ’s national Cost of Justice study, average spending on legal problems is approximately $6,100. That is almost as much as Canadian households spend on food in a year. The newly published Everyday Legal Problems and the Cost of Justice in Canada – Spending on Everyday Legal Problems report offers additional insights on monetary spending on civil and family justice problems based on demographic characteristics recorded in the CFCJ’s Cost of Justice survey, as well as pathways used to try to resolve legal problems. This new Cost of Justice report is available on the CFCJ website here: www.cfcj-fcjc.org/wp-content/uploads/SPENDING-Everyday-Legal-Problems-and-the-Cost-of-Justice-in-Canada.pdf.

Legal Secondary Consultation is a Valuable Addition to the Services Available from Three Community Legal Clinics in Southwest Ontario

By Ab Currie
Senior Research Fellow
Canadian Forum on Civil Justice

Tuesday, October 2, 2018

Between April and October of 2016, three community legal clinics put in place legal secondary consultation (LSC) on a pilot project basis. The clinics are Halton Community Legal Services, the Community Legal Clinic of Brant, Haldimand and Norfolk and the legal Clinic of Guelph and Wellington County. The pilot projects were a success in each of the clinics (Ab Currie, Legal Secondary Consultation: How Legal Aid Can Support Communities and Expand Access to Justice, Halton Community Legal Services, Halton Community Legal Services, March 2018).

Legal secondary consultation is a service in which a lawyer, paralegal or community legal worker provides legal information or advice on request to service providers in service agencies or voluntary associations in the community. The idea was borrowed from Australia where secondary consultation was originally developed in a medical-legal partnership. A significant difference in the three-clinic Canadian experience is that LSC is provided to a wide variety of community organizations, some with professional and some with volunteer service providers.

The LSC project has been a very valuable support to community organizations. During the approximately seven-month period covered by the review, the three clinics received 235 requests for consultations from 103 different community organizations. Service providers from community agencies requesting the LSC service were virtually unanimous in their opinion that legal secondary consultation was extremely helpful in dealing with the issues for which they requested help, enabling them to better serve their own clients. Service providers also indicated that the assistance from LSC advisors often built organizational capacity enabling them to deal with similar situations better.

The types of organizations making requests for consultations varied from one clinic to the next, but, overall, mainly included community health centres, mental health services, food banks, family counselling agencies, organizations providing housing assistance and social services agencies. The types of problems for which consultations were requested were mainly in areas of housing and access to social services, together making up slightly more than 65% of all requests for all three clinics combined. These two main areas were followed by wills and powers of attorney, family law and immigration as common problems for which consultations were requested. Service providers requested consultations for a variety of problems with potential legal implications within very diverse organizational mandates. However, LSC advisors indicated that the most common type of advice provided was legal advice related to individual problems. Strategic advice about how to deal with a problem followed as the second most frequent type of advice.

The LSC services expanded the number of people who received legal help by the clinics through the secondary mechanism of assisting other service providers. Only a few of the contacts resulted in the individual being referred to legal aid.  The service providers in community agencies felt that many of their clients would not have approached legal aid on their own and in some cases would not have followed up on a referral to legal aid made by the service provider.

According to LSC advisors, legal secondary consultation is a highly efficient way to provide assistance. Advice is provided to external service providers by e-mail or telephone. The typical amount of time spent on a consultation was about 20 minutes. In addition, because there is no intake process, LSC allows the clinic to provide assistance at very low cost.

LSC advisors were aware of the risk that service providers may not fully understand the advice provided and, as a consequence, might take inappropriate action in dealing directly with their clients. LSC advisors said they monitor the telephone conversations and e-mail exchanges with service providers to assess the degree to which service providers appear to understand the information being provided. According to LSC advisors, situations only occasionally occurred in which they suspected some possible misunderstanding by service providers. In these cases the LSC advisors said they always made a special effort to assure the information being conveyed was well understood.

All three clinics have continued to provide legal secondary consultation to community organizations after the experimental period, integrating into the LSC into their overall delivery approach. The evidence suggests that legal secondary consultation is an important form of outreach to the community and, on the return trip, an effective path to justice.

Unbundled Legal Services and Access to Justice

By Naomi Quesnel

Tuesday, October 2, 2018

Limited scope retainers (commonly known as “unbundled legal services”) have become increasingly touted as a way to improve access to justice. An unbundling agreement consists of a lawyer or paralegal providing services for part(s) of a client’s legal matter. For example, under an unbundled legal services agreement, a lawyer may help a litigant draft and fill out forms for a hearing on a tenancy issue, but not represent the litigant at their hearing. One of the valuable ways unbundled legal services can help aid the access to justice crisis is that they can help provide access to legal services for people who make too much to qualify for legal aid, but also cannot afford to retain full legal representation for an entire legal matter. The previous treasurer for the Law Society of Ontario, Paul Schabas, has said that the law society was encouraging lawyers to support unbundling legal services because clients can pick and choose services they can afford.[1]

To give a clearer picture of how unbundled legal services could offer a useful alternative in situations where the cost of trying to resolve a legal problem is an issue, it is important to look at some numbers that shed light on how much legal services cost in Canada, and how they compare to common expenses. The Canadian Lawyer Magazine’s annual “Going Rate” legal fees survey for 2018 shows that the average hourly rates for a 1 year or less lawyer who was called to the bar in 2017 is $179.74 in Western Canada, $217.96 in Ontario, $165.00 in Atlantic Canada/Quebec and $190.51 nationally.[2] Alternatively, for an 11 to 20-year call, the average hourly rate was $371.44 in Western Canada, $387.02 in Ontario, $272.97 in Atlantic Canada/Quebec and $357.89 nationally.[3] For a clearer picture of how legal costs may add up cumulatively, the national average cost for a civil action case up to and not including trial (two days) was found to range from $10,000-$15,000, and the national average for a civil action up to and not including trial (5 days) was less than $35,000.[4]

To put these numbers in perspective, the median total income of Canadian households was $70,336 in 2015.[5] In terms of household size, in 2014, the average number of people per family was 2.9.[6] To contrast, to qualify for duty counsel/summary legal advice for Legal Aid Ontario, for example, gross family income for a family of one must be lower than $22,720 and for a family of two, $32,131.[7] For Alberta families of one and two who want to access legal aid, the annual income must be at or lower than $19,653 and $24,333 respectively.[8] In 2016, Canadians spent 29% of their total income on shelter, 19.2% of their income on transportation and 14.1% on food.[9] For a household with a total income of $70,336, this would mean they would spend around $20,397 on shelter, $13,504 on transportation and almost $10,000 on food. The cost of a two-day civil action, not including trial, at $10,000 would thus be a comparable expense relative to the total annual costs of food, shelter or transportation for Canadians. This is an onerous expense for the  many potential litigants won’t qualify for legal aid assistance, and will have to foot the costs for their legal problems. In addition, not every litigant will be able to afford the extensive hours of work performed by lawyers, particularly in drawn-out litigation which could last months to years, all while the average hourly rates for lawyers tend to be above $150.00. Although a number of Canadians will be able to afford to spend $10,000 on legal expenses, they may be hesitant to commit to full representation due to uncertainty as to how long their legal matter will last, and if unexpected issues or delays end up ballooning the cost compared to what they had originally expected.

In an unbundled legal services agreement, a litigant can choose, with the expertise of the lawyer or paralegal, which individual services they want. This increases the number of clients who are able to afford legal services because they do not have to pay for the entirety of services required in litigation[10], and they can afford representation at critical points of a legal proceeding rather than trying to navigate difficult court hurdles alone.[11] Consequently, unbundled legal services agreements can help avoid potential “all-or-nothing” situations. That is, situations where a litigant doesn’t qualify for legal aid, but cannot afford legal representation, so they need to represent themselves throughout the entire matter. Instead, the litigant can seek advice and reap the benefits of an unbundled legal services agreement by paying for the services that are the most complex or important for the outcome of their case, while cutting costs by performing and organizing the work that is more straightforward with lower stakes on their own.

This doesn’t merely provide access to the courts, but it provides increased access to sound and accurate legal advice and services which can be critical for the just outcome of a case. Litigants who act on their own are disadvantaged because they often lack the knowledge, experience and skills related to judicial processes, and the increasing number of self-represented litigants in the courts slows down the litigation process, which can lead to higher costs for the judicial system, further clogging up courts.[12] As such, a potential litigant may save time, money and stress if they pay for a lawyer to only examine and fill in complex forms rather than doing it themselves, as this may reduce the likelihood that a lack of experience and knowledge will have an impact on the more important and complex parts of the legal proceeding. Therefore, using an unbundled legal services agreement for the higher stakes hurdles in a court proceeding has the potential to afford litigants better access to a fair process while avoiding the full costs of a legal proceeding.

Although unbundled legal services allow litigants to receive services in a cost-effective way, thus increasing their ability to access justice, this is somewhat dependent on the supply of lawyers who are willing to provide unbundled legal service agreements. From a practical and financial standpoint, a lawyer may not want to invest his or her time conducting client intake, conflict checks and so on if they are only getting paid a fraction of what they would be getting paid if they were fully retained. Some have noted that this is a regulatory problem, and if the legal profession wants to use unbundled legal services to provide increased access to justice to litigants, regulatory change should be implemented to provide them with incentives to offer these agreements.[13]

Because providing unbundled legal services comes with novel responsibilities and concerns for lawyers, lawyers may avoid engaging in them due to a fear of increased risk of professional liability.[14] For example, if a client isn’t told about the detailed implications and limits of a limited retainer, the client may assume something is being handled when in reality it is not. This could be perceived as an extra step, as the lawyer now must not only explain the individual services he or she is offering, but also explain that in doing those things, other specific aspects of the legal matter will not be handled, which can have certain implications. Without this acute awareness and detailed explanation, this could possibly open up the lawyer to professional liability. A decision in Meehan v. Good[15], where the Ontario Court of Appeal overturned a motion judge’s decision that had dismissed a negligence claim against a lawyer and ruled that the lawyer had failed to give adequate advice to a client about limitation periods, was said to reflect a common reason why lawyers seem reluctant to offer unbundled legal services.[16]

Law societies seem to have taken note of this by creating rules and guidelines that seem to preserve the benefits of unbundled legal services while mitigating lawyer liability, and thus mitigating deterrence to providing unbundled legal services out of fear of professional repercussions. The Law Society of BC suggests that lawyers take certain precautions to mitigate the risks that come with unbundled legal services, such as using the initial client meeting to carefully assess the appropriateness of a limited scope retainer, avoiding making assumptions, using checklists to help identify and record who is responsible for what (the client or the lawyer?), and remembering that risk management practices employed in a traditional retainer equally apply to a limited one.[17] Others have argued that the pros outweigh the cons, highlighting that unbundling is a safe practice that provides access to justice which has the potential to result in faster and less stressful outcomes, with no indication of an increased rate of negligence claim or complaint to the law society for lawyers.[18]

In 2011, the Law Society of Ontario (then the Law Society of Upper Canada) approved amendments to the Rules of Professional Conduct and the Paralegal Rules of conduct, which function to guide the professional and ethical standards of lawyers and paralegals.[19] The Law Society, in anticipation of  an increase in the number of legal service professionals who offer unbundled legal services, changed the rules to guide lawyers and paralegals who provide “unbundled” legal services.[20] The changes include a rule (in most cases) where the client will receive a document confirming the limited nature of the retainer and clearly outlining the scope of the services provided.[21] This can benefit both the clients and the lawyer, as it can inform the clients of the precise nature of the legal help that they are receiving, and to what extent, and it can protect the lawyer from liability.

Although unbundled agreements may not be fully used to their potential, or regulated for maximum effectiveness, it seems as though law societies and the legal profession are increasing dialogue and taking action to integrate them into the profession and therefore provide those who cannot afford full representation, but also do not qualify for legal aid, access to legal services.
[1] Anita Balakrishnan, “LSO has responsibility to legal aid: Schabas”, Law Times News (18 June 2018), online: < https://www.lawtimesnews.com/>.

[2] Marg. Bruineman, The right price: Canadian Lawyer’s 2018 Legal Fees Survey shows some bright spots for law firms despite a highly competitive market (Toronto, Ontario: Canadian Lawyer Magazine, April 2018) at 21, online: Canadian Lawyer Magazine <www.canadianlawyermag.com>.

[3] Ibid.

[4] Ibid at 22.

[5] Statistics Canada, Household Income in Canada: Key results from the 2016 Census (Ottawa, Ontario: Statistics Canada, 2016), online: Statistics Canada <www.statcan.gc.ca>.

[6] https://www.statista.com/statistics/478954/average-family-size-in-canada-by-province/

[7] See “Duty counsel and summary legal advice services eligibility” at http://legalaid.on.ca/en/getting/eligibility.asp.

[8] See “Financial Eligibility Guidelines” at http://www.legalaid.ab.ca/help/eligibility/Pages/default.aspx.

[9] Statistics Canada, The Daily: Survey of Household Spending, 2016 (Ottawa, Ontario: Statistics Canada, 13 December 2017), online: Statistics Canada <www.statcan.gc.ca>.

[10] Carolynne Burkholder-James, “Limited-scope retainers – What’s in it for you?” CBA National, online: < https://www.cba.org/Who-We-Are/National-Office/Staff-Directory/National-Magazine>.

[11] Joni J. Berner, “Transforming a Family Law Practice to a Peacemaking Practice”, The Legal Intelligencer (powered by Law.com) (09 July 2018), online: <https://www.law.com/thelegalintelligencer/>.

[12] Jennifer A. Leitch, Having A Say: Democracy, Access to Justice and Self-Represented Litigants (PhD, Dissertation, Osgoode Hall Law School at York University, 2016) [Osgoode Digital Commons] at 137.

[13] The Honourable Justice Thomas A. Cromwell & Siena Anstis, “The Legal Services GAP: Access to Justice as a Regulatory Issue” (2016) 42 Queen’s LJ at 20 (WL Can).

[14] Law Society of British Columbia, “Managing the risks of a limited scope retainer (October 2017), online: <https://.lawsociety.bc.ca/>.

[15] Meehan v Good, 2017 ONCA 103, 2017 CarswellOnt 1351, [2017] 275 ACWS (3d) 431 (WL Can).

[16] Marg. Bruineman, “Chill effect on unbundling unnecessary”, Law Times News (26 June 2017), online: <https://www.lawtimesnews.com/>.

[17] Supra note 14.

[18] Supra note 16.

[19] Supra note 1.

[20] Ibid.

[21] Ibid.

CFCJ Launches Three-year International Research Project to Scale Community-Based Justice

Monday, September 17, 2018

The Canadian Forum on Civil Justice is thrilled to announce the launch of a three-year, international research project to assess the costs, benefits and opportunities for increasing access to community-based justice services in Canada, Kenya, Sierra Leone and South Africa.

Funded by the International Development Research Centre (IDRC), the Community-Based Justice Research (CBJR) project is a newly-launched, collaborative research initiative that aims to advance collective understanding of the costs, opportunities, and challenges of community-based justice programs. In doing so, this project will play a significant role in supporting the improvement of access to justice at the community level.

This project speaks directly to Goal 16.3 of the UN Sustainable Development Goals (SDG) which requires countries to ensure equal access to justice for all of their citizens. Community-oriented justice services fill gaps in the delivery of legal services in many otherwise underserved areas; they facilitate early legal problem resolution, and they empower individuals to engage in society to protect their legal rights. By helping to provide the evidence needed to understand, assess and scale these types of access to justice programs, this project will help countries to better develop and deliver justice to their communities.

The Community-Based Justice Research project is planned in close collaboration with the IDRC, the Katiba Institute in Kenya, the Center for Alternative Policy Research and Innovation (CAPRI) in Sierra Leone and the Centre for Community Justice and Development (CCJD) in South Africa with support from Open Society Foundations (OSF), and will incorporate research methodologies and learnings from the CFCJ’s own 7-year (2011-2018) national, people-centered research project on “The Cost of Justice”.

The press release for the Community-Based Justice Research project is available on the CFCJ website here: http://cfcj-fcjc.org/wp-content/uploads/Press-Release-CFCJ-CBJR-International-Research-Initiative-Seeks-to-Scale-Access-to-Community-Justice.pdf.

To learn more, please also visit the Community-Based Justice Research project page here: http://cfcj-fcjc.org/our-projects/community-based-justice-research-cbjr/.

A New Call To Action To Improve Access To Justice

At a UN summit in 2015, world leaders identified 17 universal threats to the well-being, safety and advancement of people worldwide and to environmental sustainability. The result was the UN Sustainable Development Goals (SDGs). Officially in effect since January 2016, the SDGs aim to galvanize national and international efforts around an agenda that promotes equity, empowerment and certain fundamental rights and improvements. The target date to reach these goals is 2030.[1]

Notable for the justice community is the addition of Goal 16, which has the object to: “Promote peaceful and inclusive societies for sustainable development, provide access to justice for all and build effective, accountable and inclusive institutions at all levels” (SDG 16). [2] Sub-goal 16.3 calls for advancing the rule of law at national and international levels and ensuring equal access to justice for all.

The importance of identifying equal access to justice as fundamental to quality of life and a goal for all countries to work towards speaks volumes.  It signals an acknowledgement of the pervasiveness of legal problems, the profound effect that legal problems have on people’s lives and the need to eliminate barriers and create avenues to deal with legal problems for the betterment of societies and to improve people’s lives. Like the eradication of extreme poverty and hunger (SDGs 1 and 2 respectively), the promotion of good health and well-being (SDG 3), gender equality (SDG 5), clean water and sanitation (SDG 6) and climate action (SDG 13), among other goals that are common targets for global efforts, access to justice now forms part of a critically important pledge and agreement of what is “urgently needed to shift the world onto a sustainable and resilient path”.[3]

The extent of the access to justice problem

The Hague Institute for Innovation of Law’s (HiiL’s) 2017 Annual Report and Accounts reveals, based on data collected over the course of 4 years in 12 countries in Europe, Africa and the Middle East, approximately 1 billion new justice problems arise each year.[4] Further, an estimated 6 billion people in the world do not have adequate access to justice, with legal need being most prominent in areas related to civil and family justice problems types.[5]  Closer to home, the 2017 Justice Gap: Measuring the Unmet Civil Legal Needs of Low-income Americans report indicates that over the course of the last year, 71% of low-income households experienced at least one civil justice problem and almost 90% the civil justice problems that were reported by low-income Americans received inadequate or no legal help.[6] In Canada, almost 50% of adults experience a civil or family justice problem in a given three-year period and essentially every adult will experience a serious civil or family justice problem over the course of their lifetime.[7] From civil and family courts within our borders where a majority of litigants appear without representation[8] to insufficient funding for provincial legal aid programs that threaten the delivery of legal help to low-income and vulnerable individuals[9], there are various examples of impediments to accessing justice in Canada.

In many respects, this shared universe of access to justice challenges has not hitherto provoked a sense of global urgency proportional to its seriousness. A commitment initiated through the UN SDGs for  governments to act to address this crisis and, an appeal to stakeholders in private and public sectors to contribute, to the extent of their resources, to helping to achieve this sustainable development goal (and others) is not only welcomed, it is necessary.

Progress on access to justice

The Canadian Government recently released Canada’s Implementation of the 2030 Agenda for Sustainable Development Voluntary National Review. This is the government’s first report on how Canada is responding to the 17 UN SDGs and the progress to date on the targets included for each goal. There are encouraging signs of development and engagement at the federal level in programs and activities intended to engender advancement of the specific nature outlined as part of the Sustainable Development Agenda.

Additionally, the report highlights the integral work that various institutions, bodies and organizations across Canada are doing in support of these goals. Complex, far-reaching problems like access to justice benefit from buy-in from all stakeholders who can contribute to addressing the various facets of the problem. Such is the work that organizations like the national Action Committee on Access to Justice in Civil and Family Matters are doing. In areas of access to civil and family justice, the Action Committee is coordinating and mobilizing local and regional initiatives to improve access to justice in Canada, and where possible, to assist progress on other, related goals. The breadth of the Action Committee’s efforts and national progress in 9 key areas identified by the Action Committee as critical to move the dial on access to civil justice and family justice are further documented in the recently published Justice Development Goals progress report.

A multi-country initiative that is being supported by Canada’s International Development Research Centre (IDRC) and that includes the Canadian Forum on Civil Justice (CFCJ) and in-country partners in Kenya, Sierra Leone and South Africa is also highlighted in the Voluntary National Review. This collaborative project is producing evidence to support a business case for scaling up community justice services to help low and middle income earners in Canada and Africa.

Access to justice is not a new problem nor is it a unique one. There are certainly aspects of the access to justice debate that have evolved over time as has our understanding of the complexity of the problem and ways to address it. To the extent that the first step in solving a problem is acknowledging that the problem exists, UN SDG 16 that promotes equal access to justice has arguably put us on a necessary path towards targeted improvements. As an initial, promising step, the publication of the 2018 Voluntary National Review report shines a light on the work that is happening nationally and internationally towards improving access to justice and has also perhaps forced a reflection on our serious failings in this area. Hopefully, this is the impetus that was needed to effect significant improvements in access to justice. We have until 2030 to get there.

This blog originally appeared on Slaw  on August 14, 2018.

By Lisa Moore

 

[1]  The Sustainable Development Goals (SDGs) succeed the 2000-2015 Millennium Development Goals (MDGs). For more information on the Millennium Development Goals, see generally United Nations, “News on Millennium Development Goals”, online: United Nations <http://www.un.org/millenniumgoals>.

[2] SDG 16 is among nine new objectives in the UN 2030 SDGs that were not a part of the UN’s 2000-2015 MDGs. For the complete list of UN Sustainable Development Goals, see United Nations, “Sustainable Development Goals”, online: United Nations < https://sustainabledevelopment.un.org/?menu=1300>.

[3] United Nations, “Transforming our world: the 2030 Agenda for Sustainable Development”, online: United Nations <https://sustainabledevelopment.un.org/post2015/transformingourworld>.

[4] HiiL, Annual Report and Accounts 2017 (The Hague, Netherlands: HiiL, 2017) at 4, online: HiiL < http://www.hiil.org/data/sitemanagement/media/HiiL%20Annual%20report%20and%20accounts%202017.pdf>.

[5] Ibid at 12. The top 5 categories of problems identified in the countries included in the survey are family, employment, crime, land, neighbours.

[6] Legal Services Corporation & NORC at the University of Chicago, The Justice Gap: Measuring the Unmet Civil Legal Needs of Low-income Americans (Washington, DC: Legal Services Corporation, June 2017) at 6, online: Legal Services Corporation <https://www.lsc.gov/sites/default/files/images/TheJusticeGap-FullReport.pdf>.

[7] Trevor C.W. Farrow et al., Everyday Legal Problems and the Cost of Justice in Canada: Overview Report (Toronto: Canadian Forum on Civil Justice, 2016) at 2, online: Canadian Forum on Civil Justice < http://www.cfcj-fcjc.org/sites/default/files//Everyday%20Legal%20Problems%20and%20the%20Cost%20of%20Justice%20in%20Canada%20-%20Overview%20Report.pdf>.

[8] Julie Macfarlane, “Identifying and Meeting the Needs of Self-Represented Litigants,” Final Report of the National Self-Represented Litigants Project (May 2013) at 122, online: <http://www.lsuc.on.ca/uploadedFiles/For_the_Public/About_the_Law_Society/Convocation_Decisions/2014/Self-represented_project.pdf>.

[9] See e.g., Ian Mulgrew, “Ian Mulgrew: Stretched legal aid living on hope in B.C.” Vancouver Sun (7 January 2018), online: < https://vancouversun.com/news/national/ian-mulgrew-stretched-legal-aid-living-on-hope-in-b-c>; Ian Mulgrew, “Ian Mulgrew: Legal aid boost in eye of beholder” Vancouver Sun (21 January 2018), online: < https://vancouversun.com/news/politics/ian-mulgrew-legal-aid-boost-in-eye-of-beholder>; Sean Rehaag, “The Charter and Legal Aid Ontario’s Proposed Refugee Law Cuts” (7 June 2017), A2J Blog (blog), online: < http://cfcj-fcjc.org/a2jblog/the-charter-and-legal-aid-ontario%E2%80%99s-proposed-refugee-law-cuts>.

 

 

Access To Justice: How It’s Looking On The Ground

This article originally appeared on The Lawyer’s Daily on August 13, 2018. It is the eleventh article in The Honourable Thomas Cromwell’s exclusive Lawyer’s Daily column dedicated to access to civil and family justice.

West Coast LEAF is a legal advocacy group whose mandate is to use the law to create an equal and just society for all women and people who experience gender-based discrimination. In other words, it is an organization dedicated to access to justice writ large. I was able to speak to Zahra Jimale, West Coast LEAF’s Director of Law Reform about its work, her conception of access to justice and, most importantly, how successful we’ve been in improving access to justice on the ground. Here is what she told me.
 
TC: Tell me about your role at West Coast Leaf

ZJ: In collaboration with the community, West Coast LEAF uses litigation, law reform, and public legal education to make change. We do our work in six focus areas: access to healthcare; access to justice; economic security; freedom from gender-based violence; justice for those who are criminalized; and the right to parent. As the Director of Law Reform, I provide leadership, strategic planning and project management with respect to policy and law reform in all of the six focus areas. I work with our team to develop the organization’s position statements and recommendations on implementation and reform of policy and law. I bring to this role my experience of founding and operating an independent family law practice where I provided a variety of family law services, including unbundled legal services, legal coaching, collaborative divorce, and mediation.

TC: What do you perceive as the biggest access to justice gap?

ZJ: There is a significant gap between what the public expects of the justice system and what the justice system delivers and is currently capable of delivering.

There is lack of deeper understanding of what it means to truly access justice; that justice is not simply achieved by accessing, but by obtaining just outcomes in an efficient and cost effective manner, regardless of the type of dispute resolution process that is pursued, be it court or alternative dispute resolution processes; that meaningful access to justice requires recognizing and dismantling the various barriers faced by many, and in particular, that there are intersecting barriers faced by certain populations because of historical and/or current systemic challenges. The complexity of the system, long delays, lack of access to affordable and timely legal advice and representation, and lack of adequately funded legal aid system continue to widen the gap.

An urgent systemic change is required to reduce these barriers and an immediate action must be taken to address the growing access to justice crisis, especially in family law. Where individuals are unable to access lawyers due to prohibitive costs and lack of public service, they are left with no choice but to either forego rights and interests, including the protection of their children’s rights and interests, or represent themselves without appropriate legal advice and/or representation. This is why West Coast LEAF and a team of pro bono counsel is representing the Single Mothers’ Alliance and an individual plaintiff in an ongoing constitutional claim against the B.C. government and the Legal Services Society for failing to provide adequate family law services, in particular to women fleeing violent relationships.

Zahra Jimale

TC: There is a lot of talk about the access to justice problem, but do you see signs of improvement on the ground?

ZJ: Unfortunately, we are far from seeing meaningful access to justice. Although there has been a lot of talk and some action, particularly in diverting disputants away from the court system and litigation generally, the justice system remains inaccessible to those that need it most. The barriers to accessing justice and the significant adverse consequences, including safety concerns for those fleeing violent relationships, are ongoing. Even though nearly half of Canadians over the age of 18 experience at least one civil or family law problem over any given three-year period, justice system funding continues to be woefully inadequate.

TC: If you could do any one thing to improve access to justice, what would you do and why?
 
ZJ: I would change the way we perceive access to justice. I believe once we recognize access to justice as a human right that is fundamental to the protection and promotion of the rule of law, we will then be forced to take the necessary action to ensure that it is meaningful and protected. This includes increasing the public’s knowledge of the justice system and how to manage and resolve legal problems; making available cost effective and appropriate avenues for resolution; providing meaningful access to resources and services; ensuring adequate funding of legal aid; and maintaining appropriate judicial complements and effectively functioning courts.

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: Diana Lowe On Support For Families As They Restructure

This article originally appeared on The Lawyer’s Daily on July 30, 2018. It is the tenth article in The Honourable Thomas Cromwell’s exclusive Lawyer’s Daily column dedicated to access to civil and family justice.

Alberta has been engaged for several years in an ambitious family law reform effort. I spoke to Diana Lowe, co-lead of the Reforming the Family Justice System (RFJS) initiative, about what they have been doing and what’s ahead. Here is the second part of my interview with her.

TC: What main innovations have been introduced and how are they working?

DL: The most significant change that has taken place, is a shift in the mental model or culture in the family justice system, away from improving access to lawyers, law and adversarial processes, and instead to a focus on family well-being through services that support families as they experience the pressures of restructuring. We are encouraging awareness of this shift by all participants in the family justice system, including families, and encouraging alignment with the Theory of Change in policy and programs.

We are beginning to see shifts in systems, policy and practices including the Court of Queen’s Bench that has adopted the Theory of Change in its Strategic Plan and is beginning to take action to put this into effect. Resolution Services in the Ministry of Justice and Solicitor General is developing a pilot to refocus the work of frontline staff as “justice system navigators.” These staff will be trained in brain science, and will develop maps of community services so they can assist families to obtain the supports they need for their social, relationship, parenting and financial needs.

This pilot is a collaboration with the County of Strathcona Family and Community Support Services (FCSS) and if successful, will be expanded to include FCSS organizations throughout the province.

Alberta has submitted a joint proposal (by the Alberta Ministry of Justice and Solicitor General, the Court of Queen’s Bench and the provincial court) to the federal minister of Justice, for the creation of an Alberta Unified Family Court. The proposal embedded the RFJS Theory of Change, supporting the use of services to assist Alberta families to access supports they need to help develop resilience, and to resolve disputes away from the adversarial processes of courts as much as possible.

TC: How is the experience of a family going through separation and divorce different from what it might have been five years ago?

DL: While the RFJS is still underway, there are many things that parents can do already to help them and their children thrive as they restructure. As co-convenor Justice Andrea Moen noted at our recent Collaborator Workshop, collaborative family professionals were out front in understanding that co-operation and collaboration between parents is essential for the health of the family and of the children. They led the way by creating teams of professionals to assist families.

The RFJS is aligned with the collaborative approach both to help families avoid adversarial court processes and to work out the restructuring of their family. Their approach is a model which ensures that families receive the kinds of relationship, parenting and financial supports that they need, and families can be guided by the model that collaborative professionals have created for supporting healthy families.

There are many different supports that are available to assist families, including collaborative family practitioners, co-parenting experts, wellness coaches, grief counsellors, financial advisers, step-parent supports, and of course mediators and lawyers. Examples of these supports are published regularly in Divorce Magazine. Families can use technology tools that encourage parents to work together to achieve better outcomes, including coParenter and Undo.

Supports for families are also available in most communities in the province through Family and Community Support Services partnerships between the provincial government and municipal governments; at Parent Link Centres; and through Triple-P Parenting Resources.

The RFJS is supporting the Ministry pilot in the County of Strathcona that will see families seek these supports, as part of our goal for better outcomes. As families are encouraged to seek out these supports early on in their decision to restructure, they are better able to deal with the emotional, parenting, relationship and financial challenges that commonly occur upon separation and divorce, and to avoid tangling these issues into legal processes.

TC: What’s next?

DL: Our Outcomes Framework identifies our key priorities for the coming year as:

  • Working with the legal profession to encourage brain science education by family lawyers, and identifying implications for shifts in ethical responsibilities and practices of family lawyers.
  • Working with the courts to ensure they are familiar with the Theory of Change, and are encouraged to align court processes with it.
  • Continued work with the Ministry of Justice and Solicitor General on the pilot with FCSS, and other family justice initiatives.
  • Helping to enhance the public understanding that “parents fighting about their children causes harm,” and to provide information about supports to improve resilience and well-being of family members.
  • Working with frontline service providers and supports for families, to empower them to provide the social, relationship, parenting and financial supports that families need when they’re restructuring.
  • Working with other ministries (Health, Education, Community and Social Services, Children’s Services) to share the Theory of Change and seek alignment with it, and the integration of services for families, in order to help families thrive.

This is the second 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.