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

David Wiseman

Monday, June 29, 2015

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