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Lawyers integral in making justice accessible: McLachlin

|Written By Michael McKiernan

Lawyers need to do their bit to stop Canada’s justice system from becoming the preserve of the very richest in society, says the country’s top judge.

Since no one else can provide legal service, the profession must do its bit to ensure justice for all, says Chief Justice Beverley McLachlin.

Supreme Court of Canada Chief Justice Beverley McLachlin told a group of leading lights in the legal world that the profession’s monopoly over the provision of legal services conferred with its special responsibilities.

“If you’re the only one that can provide a fundamentally vital social need, from which you benefit, I think it follows that you have to provide it. And I don’t think it’s enough to say we’re providing it for the rich and for corporations.

I think you have to find a way to provide it for everybody,” McLachlin said. “No one else can provide this, so the legal profession must.”

McLachlin was the keynote speaker at the University of Toronto Faculty of Law’s Middle Income Access to Civil Justice Colloquium on Feb. 10. It explored the problems middle-income people have in finding adequate legal representation.

McLachlin said full representation is out of the question for many, with average legal fees hovering in the range of $340 per hour. Low legal aid cut-offs have made that option equally unrealistic for the growing group caught between two financial extremes.

“Do we have adequate access to justice? I think the answer is no. Among those hardest hit are the middle class and the poor. We have wonderful justice for corporations, and for the wealthy.

But the middle class and the poor may not be able, in many situations we have found, to access our justice system,” said McLachlin. “Public confidence in the system of justice is essential. How can there be confidence in a system that shuts people out, that does not give them access.”

McLachlin said the situation must change if Canada’s justice system wishes to retain its reputation as one of the best in the world.

“We can draft the best rules in the world, we can render the most enlightened decisions, but if people can’t take advantage of that body of law, if they cannot have access to it to resolve their own legal difficulties, then it is for nought,” she said.

Ontario’s Attorney General Chris Bentley said his government is working to tackle the problem, but warned the tough economic climate meant very little new resources were available for the cause. In any case, “there is no appetite among middle-income Ontarians, or anyone else, to pay more money for access to justice,” said Bentley.

“It would be ironic if we asked them to, because by definition we’re saying they don’t have access to the system of justice that they should have, and that they already pay for,” he said.

Instead, Bentley said he has worked with the profession to develop programs that assist low- and middle-income people in the system. He pointed to the recent amendments to the Rules of Civil Procedure, which increased the monetary limit in the cheaper and faster Small Claims Court.

In family law, he promoted a pilot that mandates information sessions for all litigants and provides them with upfront access to duty counsel; “triage” lawyers who point them in the most suitable direction for their case. More Small Claims Court forms have gone online, with advice on how to fill them out, alongside an information hotline.

“People want information, upfront in an easy to understand way,” said Bentley. “They want a little bit of advice on whether it’s worthwhile proceeding, and better if it’s free. Then they want to get to the decision point as quickly as possible.”

But professor Russell Engler, another speaker at the conference, warned the multitude of self-help programs that have sprung up around court systems across the continent can have unwelcome side-effects.

“There is a very real danger that the trade-off is second-class justice for those who can’t pay,” he said.

Engler, who is the director of clinical programs at the New England School of Law in Boston, highlighted a study of a self-help legal centre in California, which was very popular among people who used it, and court staff whose lives were made easier by its existence.

But the study also found that in landlord-tenant cases, where the power imbalance is often greatest between litigants, tenants who used the self-help centre ended up paying more in back rent than those who went it alone.

“We can have a philosophical discussion as to whether it’s a good or bad thing that tenants pay their rent. But if we’re trying to design programs to assist people, I’m going to make a case that they are better off with more money in their pocket than less money,” Engler said.

“The theory is that the self-help centre acted as a dispenser of norms, so that tenants had their expectations lowered about what was achievable. Whether we want our assistance programs to be dispensers of norms or whatever we want them to be, that should at least be part of the conversation.”

According to Engler, program evaluations must focus on actual outcomes, rather than just customer-service style surveys, which can only tell you about how well people felt they were served by a particular program.

“Unless we do that, however well-intentioned we are, I think we’re never going to know whether we actually have expanded and provided equal access to justice, or whether we are providing second-class justice, despite our best intentions,” he said.

  • legalaidlawyer
    As a lawyer with a poverty law practice (I choose to serve the Aboriginal community primarily) I agree that access to justice is a responsibility we all share. With 15 years at the bar, working for legal aid rates means I am making about 1/3 my regular rate. I pay the same fees and insurance as my colleagues in more lucrative practices; I pay the same high prices for CLE and publications, and although I try to keep my overhead as low as possible it is still difficult to keep the doors open some months. I see many cases where the Crown is pursuing a case without reasonable prospect of conviction against unrepresented accused and I act pro bono in some of those cases; there are things we can do to support those of us who truly wish to see social justice and represented accused in the courts to ensure a just outcome. During my articles with the Crown Attorney's office in Ontario, the Chief Crown constantly emphasized that we were not there to secure convictions, but to do "the right thing", that we were Ministers of Justice and that meant not pursuing a case if the evidence didn't support a conviction. Lets not waste scarce resources over charging and pursuing unwarranted convictions. Lets look at restorative justice and community involvement where appropriate. And lets support those of us who are willing to sacrifice personal wealth for the ends of seeing justice done for all.
  • Anon
    Look south. THe US has in court and onlione court assitannce programs that are far superios than Canada and they use paralegals for all cases. Judges prefer it. They do noto allow lawyers and judges to be mediators. It works and saves time and money. The laws are clearly defined and the courts do faster scheduling. Things are clear. Things are foogy in Ont. and backwards. I swear it is done by design. If the AG will not listen to the Judges that tells someone is making money off the peoples misery.
  • Legal Fees

    derek cave
    I write with respect to the recent comments (not the first) of the Chief Justice regarding excessive legal fees.
    It is not the hourly rate fees of lawyers which is the problem although lawyers are expensive.Has the learned Chief Justice had occasion to pay a dental bill or a veterinary surgeon bill in the last few years.One hour in a dental surgeons chair can cost up to 1500 dollars and no one is calling for them to make it cheaper to have an implant or root canal.
    The problem as I see it is the ponderous system itself.It takes endless time and expense to resolve the most straightforward claim.
    When I started to practise in the 60's (yes,there are some of us from that era who are still standing) a trial of a personal injury claim would take several days(and in the early days contingent fees were illegal).Now it takes several weeks.Heads of damages are more extensive,(and expensive) and numerous experts seem required so counsel won't be sued for negligence for failing to call somebody.
    Until the entire sytem is fundamentally changed then there is nothing that can be done I fear.It is what it is.Law offices are expensive to run and lawyers,like dentists, should not be asked to work without a decent return.
  • Most money is wasted

    Most client payments are actually wasted on unnecessary expenditures that should be avoidable. For example, ways must be found to send correspondence and serve and file documents by email. Lawyers need to be freed from expectations of being in large fully-staffed offices all week long when several lawyers could easily share one office by using it for client meetings. Regulators need to be focused only on authorized duties granted by the legislative assembly and those who have hid cases or otherwise been corrupt need to be replaced by ethical regulators. Much more can be done to lower costs.
  • G.Yemensky
    I continue to lament the comments of Justice McLaughlin laying the responsibility for inaccessible justice at the feet of private practice lawyers. It is all too easy to blame the lawyers when one is removed removed from the fray.

    I have been practicing family law for 25 years and witnessed with remorse the reality of increased costs and inaccessibility to the justice system. However, I look elsewhere for the primary cause.

    In my view, the preponderate responsibility for the current sad state of affairs rests with two dominant players:

    - Governments need to maintain the appearance (some would say “illusion”) that they are acting for the public good. In Ontario, duplicated in whole or in part throughout Canadian jurisdictions, there most certainly was a problem regarding access to family law in Ontario that was addressed in the 90’s with a family law reform commission that amalgamated the family court and set up the family court rules of procedure. The mandate of the new regime was to streamline procedure, promote settlement and increase accessibility. To state that the experiment was a dismal failure is a gross understatement. Rather than address fundamental flaws, successive governments have tinkered with the Rules to the point where the system is both ineffective and inaccessible. Meanwhile, the twenty year old, proposal of trial management, that would have had the greatest impact on the effectiveness of the revised system, remains largely unimplemented.

    I often tell the story of the client who showed up at my office in Ottawa at 8:30 one morning about 15 years ago to tell me his wife had absconded with the children to her mother’s home in Vancouver. I’ll spare you the procedural details. Suffice it to say, when her plane touched down 10 hours later, the RCMP were waiting for her with an Order of the Ontario Court, as confirmed by the BC Court, to return the children. It cost him c. $3500. That was before the system was “fixed”. Would anyone care to guess how long that process would take now or if it is even possible to make that happen? A guess as to costs?

    - One of the most costly elements of litigation is not the counsel fees directly, but the cost and procurement of the evidence that the Court has determined is necessary to conclude an issue. I’m talking about the experts that are increasingly required to substantiate virtually every position or issue to be reviewed. This has compounded the complexity and expense of trials more than any other factor. It is directly related to the reluctance of Judges to make a decisions until they have explored the opinions of someone other than themselves; someone who they have proclaimed has a greater expertise on the issue than they do. Though certainly not universal, this results in a deferral of the decision making process to the most articulate and likely more expensive expert witness.

    Therefore, costs has increased and the system has become inaccessible, not so much because lawyers fees themselves have made them so, but because of Governments pandering to an ill informed electorate and Judges requiring on pain of negligence that ever more rocks must be overturned before a decision will be made.
  • Yemen
    ...Are you sure you haven't conflated 'fault' with 'responsibility'?

    Do I Dare!
    Example of a conversation at the Superior Court window:
    Non-legal person: which form should I use?
    Clerk: we don't give legal advice.
    Non-legal person: how should I serve the claim?
    Clerk: we don't give legal advice.
    Non-legal person: how many days do I have to wait before I can come back and get a Default Judgment?
    Clerk: we don't give legal advice.

    Come on! Really?
    Everyone is so afraid of giving advice especially when they confuse procedures with legal advice. It's enough to stop anyone in their tracks. It's not the lawyers that have monopoly. It's the law society. They have so many rules even the lawyers and court clerks are afraid to take a wrong step. Be aware. Help somebody without first dotting the i's and crossing the t's and risk losing your licence.
  • Really?

    Perhaps the CJ herself can donate 10% of her huge salary and pension to founding some pro bono clients or push for change to make it easier to obtain court appointed attorneys or whatever. If she doesn't feel the problem is important enough to donate her money to, then why should I? After all, her income is more than twice what mine is and my office and travel expenses aren't reimbursed from public coffers.
  • Not Really?

    Lawyers are getting wiser? Aren't they? Talks haven't change nothing - this circus of words shown to citizenry must stop.

    Its time for lawyers to take law in their own hands for the sake of their children and mine or we will face the wrath of our children like Greece, Thailand, Ezypt, Behrain, yemen etc. - coming generation won't forgive us.

    Bravo! Whatever you do; do with your might, things done by halves are never done right.
  • Wonderful justice for corporations?

    R. Gillies
    Unless her remarks were misrepresented, this is yet another in a tedious line of lectures from the CJ, normally delivered in August at the CBA conference. She must using Jack Layton's speechwriter in her underlying assumption that "corporations" are rich and (presumably) evil legal bullies. This ignores the fact that the vast majority of corporations are small businesses trying to get by after paying the multi levels of taxes that are used to pay Judges' & bureaucrats' inflated salaries, benefits and gold plated pensions. Perhaps it's time for the true members of the "monopoly" to pony up some resources for access to justice, not just repeatedly harangue the lawyers, most of whom are making a very modest living.
  • Monopoly?

    Ken Burgess
    Forgive me but, lawyers enjoy a "monopoly" on access to justice? How can tens of thousands of Canadian lawyers actively competing with each other constitute a "monopoly"? If it were possible to make a good living and provide legal services for less than what is being charged these days then there would be many doing it. It is very well to encourage lawyers to be charitable with their services, but let's not pretend that this is the solution to the problem.
  • Access to Justice

    André Roothman
    I am growing tired of comments by judges who never parctised in small firms and have no idea what goes on in the trenches. Where the CJ gets the avarage fee from, heaven knows. It just means that the big firms are charging outrageous fees and the small firms a pittance. Many small firms take matters on contingency, reduced fees or pro bono. However, the lawyers fees are not the only component of legal costs. Add the expensive transcripts when you want to appeal and add the fact that when a client wants to take his case to the SCC, I need to retain an agent in Ottawa, charrging me many thousand of dollars (adding to the high average). Then I also have to file so many copies of everything that all the tress in the Yukon will be wiped out. Can the CJ please explain why the citizens of this country should not be able to file their documents for the SCC at any court house in Canada. Or what about the judiciary and prosecutors also doing some pro bono work.
  • Access to justice

    We should look to other jurisdictions for how this problem is handled. In some countries in Europe, legal expenses insurance is offered , and I believe the reports are generally positive.

    An alternative we can explore more (see Justice Winkler's comments) is judge-led mediation: maybe our judges would be better used mediating the disputes of the middle and lower class, while corporations and rich people can hire their own adjudicators - arbitrators, outside of the court system. That way, everyone has access to justice: those who cannot pay, through the court; those who can pay, outside the tax-funded court system.
  • Resources are scarce?

    "Ontario’s Attorney General Chris Bentley said his government is working to tackle the problem, but warned the tough economic climate meant very little new resources were available for the cause."

    A.G. Bentley,
    Perhaps you can explain why in tough economic times when resources are scarce you persist in wasting tax dollars on flawed,costly,unwarranted Legislation that your Gov`t was warned not to implement not only by Experts in Canada(OVMA,CVMA) but by Experts outside of Canada.(RSPCA) just to name a few.

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