Paralegals and Access to Justice: A Case Study of Residential Tenancy Disputes in Ottawa David Wiseman
Tuesday, November 19, 2013
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 .
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.