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>

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.

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)

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.

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.

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.

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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

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.

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.

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.

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.

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.

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.

 

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.

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.

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.

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.

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.

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.

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

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

 


 

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).

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.