Month: September 2021

“IMPORTANT NOTICE: In light of COVID-19, we have moved to telephone only.”[1]

Over the course of the COVID-19 pandemic, community legal clinics, pro bono services, and other legal service providers have updated their websites with similar notices. The pandemic has prompted major changes to the delivery and focus of pro bono and legal clinic services in Ontario. Since the early months of the pandemic, there have been concerns that the combination of case backlogs, interest rate cuts, and the 30-percent funding cut to legal aid in 2019 might spell crisis for legal clinic services in the province.[2] The marked increase in experiences of some types of legal problems,[3] coupled with ongoing mental health, physical health, social and economic strains of the pandemic have created additional challenges for legal service providers and those in need of their help. Below, we provide some examples of some of the ways that legal clinic and pro bono services in Ontario have adjusted aspects of their operations to meet changing circumstances and shifting demands during the pandemic.

Remote Service Delivery

Customarily, Ontario’s community legal clinics and pro bono services have offered legal assistance in-person, with limited options for alternative delivery methods such as dial-in services and summary advice over the internet.  Provincial lockdowns, public health mandates that have restricted the number of people who can gather indoors, and physical distancing directives have made many alternative delivery methods the norm. In accordance with public health mandates, many legal clinics in Ontario suspended in-person consultations or have reduced them significantly. With concerns of a fourth wave in fall 2021, remote service delivery measures may remain in place much longer than initially anticipated.

Changes to Services

The pandemic has put pressure on the legal system in different ways, including with new types of legal problems that raise specific, pandemic-related issues. Legal service and information providers across Ontario have responded by tailoring their services and resources to address many of these COVID-19 related questions. For example, Community Legal Education Ontario (CLEO), an organization that provides free legal information and works to educate people on their legal rights, has updated their Steps to Justice information service to include COVID-19 related legal questions on employment, income assistance, housing, family, immigration, wills, and other legal matters.[4]

Community legal clinics in Ontario are also advocating for the public in matters related to COVID-19. One example is the Vaccines for All initiative to which several legal clinics in Ontario are signatories. The initiative is working to advance equal access to COVID-19 vaccines for migrant workers, regardless of their immigration status.[5]

Community-Based Services as Hubs for Social, Health and Legal Information on COVID-19

The pandemic has brought many socio-legal and health-justice issues to the forefront. There has long been an understanding that health problems and legal problems are often interrelated; the same is true of social problems and legal problems.[6] Ontario’s community legal clinics have produced, and now offer a variety of COVID-19 specific resources that speak to the types of interrelated legal, health and social problems that have arisen or increased during the pandemic. The Community Legal Clinic of York Region, for example, has added a page to their website that lists and provides information on social and health resources in the York region related to COVID-19; the page is updated as the legal clinic is alerted to new resources and services.[7]

As an example, the South Asian Legal Clinic of Ontario has published a series of fact sheets on COVID-19 specific social services and how they relate to the legal services provided by the clinic.[8]

An Expansion of Legal Service Availability

It is no secret that Canada is facing an access to justice crisis. The pandemic has only exacerbated this crisis.[9] In recent months, and to help meet an increase in demand for legal help, there has been a move to increase access to pro bono and community-based legal services. Legal Aid Ontario has temporarily increased eligibility thresholds for legal aid certificates, and waived requirements for some matters involving domestic abuse and child protection.[10] They have also waived eligibility requirements for 20-minute summary legal advice phone calls for family law matters and criminal matters.[11]

As an example of a national effort, in response to the pandemic, the National Canadian Lawyers Initiative (NCLI) launched a 1-year program to provide free legal advice to small businesses and Canadians.[12]

Legal Clinics beyond the Pandemic

The COVID-19 pandemic has profoundly impacted legal service delivery in Ontario. This impact will be felt for years to come. Several legal studies are underway that seek to understand the extent of these impacts for users and providers of legal services in Ontario[13] and elsewhere.[14] For now at least, legal clinics and pro bono services in Ontario continue to negotiate the challenges of addressing increased public need with insufficient funding amidst a public health crisis that remains uncertain.

 

[1] This message is displayed at the top of Parkdale Community Legal Services website, accessed on 30 August 2021, online: <https://www.parkdalelegal.org/>.

[2] John Schofield, “Surge in COVID-19 justice issues could spur Legal Aid Ontario funding crisis, lawyers warn”, The Lawyer’s Daily (20 August 2020), online: <https://www.thelawyersdaily.ca/articles/20573/surge-in-covid-19-justice-issues-could-spur-legal-aid-ontario-funding-crisis-lawyers-warn>.

[3] Pro Bono Ontario indicated that they were experiencing a 153 per cent increase in requests for assistance with employment-related problems and a 145 percent increase in housing calls from 2019 to 2020. See Nicole Brockbank, “Calls for free civil legal advice are up 72% in Ontario this year because of COVID-19”, CBC News (21 December 2020), online: <https://www.cbc.ca/news/canada/toronto/ontario-free-civil-legal-hotline-demand-up-1.5845540>.

[4] See CLEO Step to Justice, “COVID-19”, online: <https://stepstojustice.ca/legal-topic/covid-19/>.

[5] ”See Migrants Rights, “Vaccines for All”, online: <https://migrantrights.ca/vaccinesforall/>.

[6] Trevor C.W Farrow., Ab Currie, Nicole Aylwin, Les Jacobs, David Northrup, Lisa Moore, “Everyday Legal Problems and the Cost of Justice In Canada: Overview Report” (Toronto: Canadian Forum on Civil Justice, 2016) at 12, online: <https://www.cfcj-fcjc.org/sites/default/files/Everyday%20Legal%20Problems%20and%20the%20Cost%20of%20Justice%20in%20Canada%20-%20Overview%20Report.pdf>.

[7] See Community Legal Clinic of York Region, “COVID-19”, online: <https://clcyr.on.ca/covid-19/>.

[8] See for example South Asian Legal Clinic of Ontario, “COVID-19: Uninsured & Access to Health” (14 April 2020), online: <https://salc.on.ca/wp-content/uploads/2020/04/COVID-19-Uninsured-Access-to-Health-Updated-April-14-2020.pdf>.

[9] Olivia Stefanovich, “’We’re in trouble’: Advocates urge Ottawa to help close the access-to-justice gap”, CBC News (18 April 2021), online: <https://www.cbc.ca/news/politics/access-to-justice-federal-budget-2021-requests-1.5989872>.

[10]See Legal Aid Ontario, “COVID-19: Emergency legal aid services set to change” (accessed 30 August 2021), online: <https://www.legalaid.on.ca/news/covid-19-emergency-legal-aid-services-set-to-change/>.

[11] Legal Aid Ontario, “Temporary service changes due to COVID-19” (5 July 2021), online: <https://www.legalaid.on.ca/covid-19-legal-aid-services/#change-01-title>.

[12] Kamille Coppin, “The NCLI is Providing Legal Aid to Small Businesses and Canadians in Need”, Bay Street Bull (23 June 2020), online: <https://baystbull.com/the-ncli-is-providing-legal-aid-to-small-businesses-and-canadians-in-need/>.

[13] See for example Steve Matthews, “The Impact of COVID-19 on Legal Services in Ontario”, Slaw (7 May 2021), online: Slaw <http://www.slaw.ca/2021/05/07/the-impact-of-covid-19-on-legal-services-in-ontario/>.

[14] The Canadian Forum on Civil Justice is a partner in a multi-country initiative that seeks to explore the benefits, opportunities and challenges of community-based justice services in Canada, Kenya, South Africa and Sierra Leone. This initiative will also explore how local community-based justice service providers have navigated and innovated to continue to provide legal services at the local level during the pandemic. To learn more about the Community-Based Justice Research project, visit the project page online at: <https://cfcj-fcjc.org/our-projects/community-based-justice-research-cbjr/>.

Before the Covid-19 pandemic, the court system in Canada was plagued by long wait times and constant delays.[1] The pandemic brought new public health orders discouraging in-person proceedings, and so much of the Canadian court system moved online. Different courts reacted to the pandemic in different ways, but there is no court for which the pandemic has not been a learning experience. The initial shock of moving proceedings and documentation online initially exacerbated the delays. However, with the pandemic potentially slowing down, it is worth asking: What can (and should) the court system learn from the pandemic?

1. Virtual courts do not work for everything

One of the most visible adaptations made by court systems was a move to video conferencing technology for hearings. This move had the advantage of not requiring people to be physically present in the courtroom, but the evidence is mixed as to whether virtual hearings have been good for procedural fairness or access to justice.[2]

For example, a recent review of the Landlord and Tenant Board’s shift to online hearings revealed that tenants do not necessarily have access to the internet or are unable to access the hearings. In fact, tenants are less likely to attend virtual hearings than in person hearings.[3] Those tenants that do attend are more likely to be on the phone than on video, potentially putting them at a disadvantage compared to landlords who are more likely to be able to show their faces and see the board, thereby increasing the perception of their credibility.[4] Similarly, in criminal contexts, there is evidence that bail is set significantly higher for defendants who appeared at bail hearings virtually over those who attended in-person. In this way, the shift to virtual court rooms is less of a venue change as it is a factor affecting access to justice.

Online court could conceivably be an improvement for people who live in rural or remote communities, far from courthouses since they can attend court from their home. However, not all internet is created equal. In remote communities, internet upload and download speeds can make videoconferencing for court impossible.[5]

Despite concerns, many courts and tribunals in Canada and the United States are seeking to make remote hearings more common. For example, in Ontario, the Landlord and Tenant Board has said it will conduct as many hearings remotely as it can, even after pandemic restrictions have ended.[6]

2. Many technological adoptions were overdue

On the other hand, many technological changes have been in the works for a long time and have finally been adopted. The legal system is understandably slow to change. Any change could potentially have drastic unforeseen consequences. However, the pandemic has forced the adoption of many technologies that might otherwise have taken many more years to be implemented. For example, In the Ontario Superior Court of Justice, only the most critical and urgent family and criminal matters were heard up to May 2021. All other matters have been heard virtually. To help cope with additional delays caused by the shift, the Superior Court introduced the “CaseLines Pilot Project” for online filings along with an expansion of services on the Ministry’s Justice Services Online Portal. That pilot project is now expected to be standard throughout the Superior Court system by end of summer, 2021.[7]

On May 12^th, 2020, the Ontario legislature passed the COVID-19 Response and Reforms to Modernize Ontario Act 2020 which makes permanent many temporary changes to the justice system that were implemented due to COVID-19. For example, the law codifies the process for remote commissioning and notarization of documents in Ontario. This change may be especially beneficial to people living in remote communities or people who may face challenges to accessing in-person notary services.[8]

The push to modernize courts and adopt new technologies is old; before the pandemic there was already a need for more efficient, more technologically informed judiciaries. Covid-19 has presented an opportunity for the legal system to embrace appropriate technology. As Justice Pringle of the Ontario Court of Justice has said “One of the silver linings… we feel that we have been booted into the 21st century of technology by this crisis.”[9]

3. People are interested in justice

Courtroom dramas like Judge Judy have been popular for years, but the pandemic has also spurred a reimagining of public engagement with the courts. For example, 20,000 people are said to have watched the trial of a Toronto police officer convicted of assault in a case involving a Black teen in Oshawa, Ontario.[10] Virtual court made the news when images of proceedings surrounding well-known rappers’ criminal proceedings were illegally shared on social media. The problem is not purely formal; illegal sharing of court proceedings can intimidate witnesses and delay proceedings. In the US, a judge in Michigan, for example, made international news by livestreaming his virtual courtroom.[11] Whether renewed interest is a result of extra time spent at home during lockdowns or whether availability of streamed courtrooms was simply capturing an audience that always had an interest, these stories suggest that people are interested in what is happening in the justice system.

The Supreme Court of Canada has been streaming court proceedings for years with archived webcasts going back to 2009.[12] Many other courts in Canada already livestream their proceedings. Maybe it is time for all courts to be livestreamed with recordings available indefinitely, barring only when privacy necessitates otherwise. A Winnipeg judge has recently ruled that fashion designer Peter Nygard’s extradition hearing could be livestreamed. The judge specifically cited the open court principle as guiding his decision. It is currently possible to “sit in” on many Zoom courts such as the Ontario Superior Court of Justice. After all, it is usually possible for the public to sit in the gallery at most court hearings. However, it is not currently possible to obtain a recording of those court hearings.[13]

Professor Amy Salyzyn recently discussed the possibility of expanding the open court principle to online streaming such that even in-person court be streamed in a responsible way.[14] Her column discusses possible setbacks such as privacy concerns for witnesses, but for many cases, the expansion of the open court principle to online availability of court proceedings could play a part in growing public interest in the court system.

Professor Trevor Farrow argues that a key part of initiating change in the judicial system is public interest.[15] The current access to justice crisis, whereby the justice system is no longer affordable and therefore useful to the average Canadian, has been acknowledged for many years.[16] A key part of building the political will for reform is public interest. Though YouTube live streams of the Ontario Superior Court will not solve the access to justice crisis, they may play a part in generating that interest.

4. The justice system needed a cultural shift

In an address to the Action Committee on Access to Justice in Civil and Family Matters, former Chief Justice of Canada Beverly McLachlin discussed some of the impacts of the pandemic for the justice community, as well as lessons learned.[17] Her comments are worth reading in full, but I want to highlight her focus on people-centred justice. A move to people-centred justice is not a new concept, but as Justice McLachlin points out, the pandemic has made the move necessary rather than optional. A people-centred approach to justice means more than simply acknowledging that the civil justice system exists – at least to an important extent – to serve the users. There is a need to rethink how justice infrastructure is designed to make it more user-friendly. As Justice McLachlin explains, it requires expanding our understanding of justice and embracing making justice more accessible by putting resources online for everyone.[18] With an increasing number of self-represented litigants in the system, the ongoing shift to online resources is an encouraging development, but there is a need to increase the number resources and availability thereof. People-centred justice requires that the user be the focus of legal programs and initiatives.

On June 9^th of 2021, the Canadian Judicial Council published a new edition of the Ethical Principles for Judges which states that “Judges should develop and maintain proficiency with technology relevant to the nature and performance of their judicial duties”.[19] This change sends the message that judges are expected to be familiar with new technologies being used in their courts.

       Conclusion

The long-term effects of the pandemic on the justice system will not be known for many years. However, in the meantime, it is worth reflecting on the past year and a half worth of changes brought on by the pandemic to gain a clearer picture on what is here to stay and what isn’t worth holding on to. Certainly, the heuristic of adapting to change should be retained into the future, but the pandemic has also taught the legal system that many technological adaptations do not work and that doing away with what does not work is as important as adopting what does.

By Philippe Thompson
CFCJ Research Assistant
Osgoode Hall Law School Juris Doctor Candidate

 

[1] Bob Runciman, George Baker, “Report of the Standing Senate Committee on Legal and Constitutional Affairs” (Standing Senate Committee on Legal and Constitutional Affairs, 2016) at 1, Online: https://sencanada.ca/content/sen/committee/421/LCJC/Reports/CourtDelaysStudyInterimReport_e.pdf.

[3] Advocacy Centre for Tenants Ontario, “Digital Evictions: The landlord and Tenant Board’s Experiment in Online Hearings”, (2021), Online: https://www.acto.ca/production/wp-content/uploads/2021/06/Digital-Evictions-ACTO.pdf at p 3.

[4] Ibid at p 5.

[5]  Koren Lightning-Earle, “We need access to justice and the internet”, (CBA National, April 29, 2021), Online: https://www.nationalmagazine.ca/en-ca/articles/law/access-to-justice/2021/access-to-the-internet-for-access-to-justice.

[6] Supra note 3 at p 1.

[7] Ontario Superior Court of Justice, “Supplementary Notice to the Profession and Litigants in Civil and Family Matters Regarding the Caselines Pilot, E-Filing, and Fee Payment” (September 2, 2020; updated April 16, 2021) Online: https://www.ontariocourts.ca/scj/notices-and-orders-covid-19/supplementary-notice-september-2-2020/.

[8] Nicole Park, Rachel Wong, “ The Government Of Ontario Passes Bill 190, The COVID-19 Response And Reforms To Modernize Ontario Act, 2020” (Mondaq, June 9, 2020) Online: https://www.mondaq.com/canada/directors-and-officers/949852/the-government-of-ontario-passes-bill-190-the-covid-19-response-and-reforms-to-modernize-ontario-act-2020.

[9] Betsy Powell, “’We Have Been Booted into the 21st Century’: What COVID-19 Could Mean for Ontario’s Strained and Outdated Courts.” (Toronto Star, May 5, 2020) Online: https://www.thestar.com/news/canada/2020/05/05/we-have-been-booted-into-the-21st-century-what-covid-19-could-mean-for-ontarios-strained-and-outdated-courts.html.

[10]  John Chidley-Hill, “Ontario’s attorney general says coronavirus pandemic has jumpstarted justice system modernization” (Global News, December 3, 2020), Online: https://globalnews.ca/news/7499808/justice-system-modernization-ontario-coronavirus/.

[11] Todd Heywood, “Michigan judge reverses course, will restart YouTube livestream” (CityPulse, May 20, 2021) Online: https://www.lansingcitypulse.com/stories/michigan-judge-reverses-course-will-restart-youtube-livestream,17138.

[12] Supreme Court of Canada, Archived Webcasts (2009) Online: https://www.scc-csc.ca/case-dossier/info/webcasts-webdiffusions-eng.aspx?ya=2009&mo=0&submit=Search.

[13] Certain people including reporters from designated organisations and court staff are able to access most audio recordings of court proceedings.

[14] Amy Salyzyn, “’Trial by Zoom’: What Virtual Hearings Might Mean for Open Courts, Participant Privacy and the Integrity of Court Proceedings” (Slaw, April 17, 2020) Online: http://www.slaw.ca/2020/04/17/trial-by-zoom-what-virtual-hearings-might-mean-for-open-courts-participant-privacy-and-the-integrity-of-court-proceedings/.

[15] Trevor Farrow, “Ten Steps Forward on the Way to Justice for All”, (Pathfinders, October 20, 2020), Online: https://medium.com/sdg16plus/ten-steps-forward-on-the-way-to-justice-for-all-c84cae998e1d.

[16] See for example: Action Committee on Access to Justice in Civil and Family Matters, “Access to Civil & Family Justice: A Roadmap for Change” (Action Committee on Access to Justice in Civil and Family Matters, October 2013) Online: https://www.cfcj-fcjc.org/sites/default/files/docs/2013/AC_Report_English_Final.pdf.

[17] Beverly McLachlin “Access to Justice: When life gives you lemons” (19 May 2021) The Lawyer’s Daily, online: https://www.thelawyersdaily.ca/articles/26825/access-to-justice-when-life-gives-you-lemons-beverley-mclachlin.

[18] Ibid.

[19] Ethical Principles for Judges (Canadian Judicial Council, June 9, 2021), Online: https://cjc-ccm.ca/sites/default/files/documents/2021/CJC_20-301_Ethical-Principles_Bilingual%20FINAL.pdf.