The Canadian Bar Association plans to pass a resolution this month to urge the government of New Brunswick to reconsider its decision to close four provincial courts.
|The courthouse in St. Stephen, N.B., is scheduled for closure. (Photo: Google Streetview)|
The CBA’s draft resolution, which will be discussed at the association’s upcoming mid-winter meeting, says the closure of these courts “undermines access to justice for local residents, in particular the most vulnerable and impoverished residents who cannot travel great distances to attend court.”
If the resolution passes, the CBA will also call on the attorney general of the province to conduct “a comprehensive review of the justice system with a view of maintaining courts in local communities and determining where savings might be made that could additionally fund the justice system in New Brunswick.”
The bar association will also encourage federal, provincial, and territorial governments to consult with it before considering whether to close any court.
St. Andrews, N.B., lawyer David Bartlett, who is pursuing a judicial review of the government’s decision on behalf of the Charlotte County Barristers’ Society, says he lauds the CBA’s plan to get involved.
“They keep saying there is a huge saving to be had,” Bartlett says of the government’s decision to shut down the courts. He adds the province is suggesting there’s a shortage of resources needed to maintain a certain level of security at the courts.
“They’re effectively trading security for access to justice,” he says.
Despite suggestions the court closures will save cash, Bartlett says this decision is in fact costing the province elsewhere.
“Now the RCMP and police cars are being used to transport witnesses to and from Saint John,” he says. “Police officers are being lost to policing work because they’re now traveling an hour-and-a-half to get to court, an hour-and-a-half to get back.”
Without access to the courts in St. Stephen and Grand Manan, it takes the average resident about an hour-and-a-half to attend court in the city, says Bartlett. Those who do not have cars have no other options because there is no public transportation, he adds.
When Bartlett brought a motion for judicial review of the decision in October 2015, the province challenged it on the basis it is statute barred. After the minister of finance mentioned plans to close the courts in a budget speech in March 2015, Bartlett and the barristers’ society failed to bring the judicial review application within the 90-day deadline, the province said. But Bartlett argued the budget speech is a political speech and not an official public announcement of the closures.
A lower court judge agreed with Bartlett and allowed the matter to proceed, but the province will challenge that decision at the court of appeal in March.
In what he called a “bizarre and lamentable” motion, an Ontario Superior Court judge has taken the “extra-extra ordinary” measure of awarding $70,000 in advance costs to an aboriginal woman seeking to bring a class action on behalf of the former students of Fort William Sanatorium School.
There’s evidence that aboriginal children who needed hospitalization for tuberculosis were sent to a sanatorium and schooled Fort William Sanatorium School, said Justice Paul Perell, but the school is not among the recognized residential schools under the Indian Residential Schools Settlement Agreement, a contract signed in 2006.
Henry is seeking to have the Northwestern Ontario school listed as a residential school under the agreement, but Canada argues the sanatorium, while residential, was a health facility and therefore the responsibility of a board of directors first, and later, the Province of Ontario.
Lawyers and non-profits refuse to take up cases like this one because of there is no established process to obtain remedies for students who went to schools like Fort William Sanatorium School. Getting those institutions recognized as residential schools is onerous and costly.
“It is a lamentable motion, because, for a variety of reasons, ‘nobody’ was prepared to provide legal services to Mrs. Henry, unless she obtained an advance costs award for the [request for direction]. At least 18 lawyers were asked to take the legal brief, but for a variety of reasons, they all declined,” Perell wrote.
“In the discussion below, I shall identify most of them by initials, because I do not wish to shame them, and because having regard to the entrepreneurial access to justice model that governs class proceedings, it is understandable, but sad, that all the lawyers declined the Sanatorium School RFD brief.”
Henry — who is 82-years-old, disabled, unemployed, and impoverished — could not by herself bring the request for direction under IRSSA. Edward Sadowski, a researcher who has helped up to 1,000 aboriginal claimants with respect to claims under the IRSSA, filed the request on her behalf but failed to obtain legal assistance to advance it.
The motion was “bizarre,” according to the judge, because the very question of who was bringing it was in dispute. Canada argued Sadowski, who is not aboriginal and did not attend a residential school, was the person bringing the application and seeking advance costs.
But Perell disagreed. “Mr. Sadowski did initiate the RFD, but it was never his RFD, and why he should be treated as if he were a busybody stirring up litigation, when he has no personal financial interest in having the Fort William Sanatorium School listed as an IRS and has spent 17 years helping claimants, totally escapes me,” he wrote.
“In any event, in my opinion, Mrs. Henry has done enough to show that she is impecunious and an advance costs award is her last resort to access to justice,” Perell added.
He ordered the federal government to pay Henry $70,000 in advance costs as well as the cost of the motion.
Christa Big-Canoe, legal director at Aboriginal Legal Services of Toronto, says Perell’s ruling is “a significant win.”
“It speaks to the need to recognize that things don’t always fit into a box laid out in a settlement agreement,” says Big-Canoe. “It speaks to recognizing there are more survivors of this type of colonial legacy and it will provide an opportunity for those survivors to at least have their day in court.”
Big-Canoe says aboriginal students were, at times, sent to sanatoriums for being unco-operative, deemed “insane,” or otherwise sick. In some cases, the residential schools they attended before going to a sanatorium would take their names off the attendance roll, leaving them with no record of having attended a recognized residential school.
In some cases, the students only ever attended sanatorium schools, and “atrocities” have taken place in those schools as well.
“It becomes a Catch 22; they’re not being recognized,” she says.
Big-Canoe says while unfortunate, it’s understandable that both private practitioners and non-profits like her organization are reluctant to take up cases like Henry’s. When a person is seeking to have a school recognized officially as an Indian residential school, there are huge disbursement costs as well as dozens of hours of work with no guarantee of success, she says.
From a non-profit perspective, “we would be putting out all that money and time and the reality is if the process isn’t going to accept the claimant’s application, it’s money that could have been used for a person who would fit within the claim parameters,” adds Big-Canoe.
According to Perell, the case is an example of a “pandemic” issue in class proceedings as well.
“In a problem which has become pandemic in class actions, class counsel are not much interested in small value cases,” he wrote. “The entrepreneurial model for class actions works wonderfully well for many cases, but actions for a declaration that might help a small group are not a success story for the class action regime. Support for the individual issues part of a class action is also becoming an access to justice problem.
“I am not to be taken to be critical of the 18 lawyers who declined Mrs. Henry’s brief. I also am not to be taken to be critical of the entrepreneurial model chosen by the Legislature. I am only saying that class actions are only a partial solution to serious access to justice problems,” Perell continued.
“The sad truth is that Mrs. Henry, despite the valiant efforts of Mr. Sadowski, cannot obtain access to justice because she is too poor to pay for it.”
A new report on the experience of self-represented litigants in summary judgment motions has at least one law professor concerned about unfairness to those unfamiliar with the process.
“They’re pushing on an open door because they know there’s already a bias here,” says University of Windsor Faculty of Law professor Julie Macfarlane of the growing use of summary judgment motions by lawyers acting against unrepresented parties.
Today, the National Self-represented Litigants project released a report on the experience of self-represented litigants in regards to summary judgment motions brought in their cases.
Working with Katrina Trask and Erin Chesney, Macfarlane, who’s director of the project, compared the results of summary judgment motions involving self-represented parties in both 2004 and 2014, the year in which the Supreme Court of Canada released its landmark decision in Hryniak v. Mauldin.
In 2004, the researchers found five cases across Canada involving a summary judgment motion with a self-represented party. By 2014, the number of cases had increased to 61.
All but four of the 2014 cases involved a motion brought by a party with counsel. The success rate of the motions was 96 per cent, a number Macfarlane calls “extraordinary.”
“There is a risk here, and the risk is what we’re trying to report on,” she says.
She cites a concern that parties with counsel are using summary judgments as a tactic against those unfamiliar with the system and who are “completely confused.”
“We need to be more sensitive to the fact that people make mistakes,” says Macfarlane.
“The much deeper problem is a lot of people who are in a legal process now are not managing what they need to do in order to represent themselves properly,” she adds.
The success rate for summary judgment motions was similar even after removing cases in which there were findings that the unrepresented party had been vexatious.
The researchers also looked at Ontario-specific data involving motions under rules 20 and 21 of the Rules of Civil Procedure. Using those criteria, the number of cases involving unrepresented parties was four in 2004 with three of them brought by people with counsel. By 2014, there were 13 such motions with 88 per cent of those brought by represented parties having been successful.
Given the numbers, Macfarlane is calling for some assistance to help unrepresented litigants respond to summary judgment motions.
“In some of these cases, they had literally left off a comma,” she says, raising a concern about access to justice for those without counsel.
Part of Macfarlane’s concern is around judges’ attitudes and potential bias given what she says is their understandable difficulty in dealing with unrepresented parties. But, she adds, it’s unfair to hold such litigants to the same standards as lawyers.
And with several courts considering new summary judgment procedures in light of Hryniak, Macfarlane is urging caution.
“We have to be careful about how we put those new procedures together,” she says.
CALGARY — As the Canadian Bar Association conference got underway this morning, Chief Justice Beverley McLachlin opened with a keynote speech emphasizing the need to balance the pressing need to change the delivery of legal services with lawyers’ professional obligations.
|‘If we are unable to revise ourselves, then we risk irrelevance,’ said incoming CBA president Janet Fuhrer.|
While McLachlin emphasized the need to protect core values, she made clear that resisting change isn’t an option.
“We’re part of it, and there’s no escape,” she said, referring to the technological changes making legal information available in other ways and players such as LegalZoom that are growing rapidly.
In her speech, McLachlin focused on the major challenges facing the legal profession while outlining what she sees as new opportunities that provide some optimism for different ways of doing business, particularly for “nimble, tech-savvy lawyers.”
“Legal systems everywhere are experience an access-to-justice crisis and are responding in different ways,” she said, suggesting Canada has done a good job of trying to address the issues by looking for ways to make legal services more accessible.
Efficiency and affordability, she added, will be key.
“The time-honoured legal phrase ‘with due deliberation’ has no place in the new world in which we live and practise,” she said.
She went on to suggest lawyers will also have to consider a loosening of their dominance over the delivery of legal services to make room for other, cheaper offerings.
“In the age of the Internet, people are questioning why they, the consumers of legal product, should be forced to go to expensive lawyers working in expensive office buildings located in expensive urban centres. Why, they ask, should a client retain lawyers, when integrated professional firms can deliver accounting, financial and legal advice?” she said.
“The old assumptions are being questioned,” she added, noting the question isn’t whether there will be liberalization but how it will happen.
“We must not close our mind to the changes that are being increasingly forced on us.”
McLachlin spoke in Calgary as the CBA conference got underway with a significant focus on how lawyers with a focus on innovation and “building a better lawyer.” Sessions at the conference will cover topics such as innovation and the future of law firms as well as the role of things like bitcoin, Google Glass, and three-dimensional printing in the practice of law.
In her speech this morning, outgoing CBA president Michele Hollins touted the CBA’s role in helping lawyers adapt to the changes.
“It’s a great time to be talking about innovation in the legal profession but it’s an even better time to be leading that conversation,” she said.
The comments come as the CBA itself faces significant change as it considers its Rethink process aimed at reinvigorating the organization to make it more relevant to lawyers. It was a theme incoming president Janet Fuhrer emphasized in her remarks to the CBA council yesterday.
“Every aspect of what we do is on the table and under the microscope,” said Fuhrer, who called on lawyers to embrace the CBA’s Legal Futures, Equal Justice, and Rethink efforts underway. “If we are unable to revise ourselves, then we risk irrelevance.”
Despite those challenges, Hollins noted the CBA has continued to play a significant role.
“We have tackled issues in every corner of the law,” she said, citing the association’s significant submissions on Bill C-51. And with a federal election underway, she said, it would be playing a role in trying to raise the access-to-justice issues it has been focusing on during the campaign.
To that end, she announced a new Twitter hashtag, #whataboutalex, aimed at discussing Canadians’ experiences in the justice system and the challenges they face.
|Click for larger version.|
The findings are a part of an ongoing five-year national study looking into the social and economic cost of Canada’s justice system.
“We’re concerned by the level of impact on society. No doubt that number is of concern,” says Trevor Farrow, associate law dean at Osgoode Hall Law School and the chair of the CFCJ.
But Farrow, the principal investigator of the cost of justice project, says the numbers did not surprise him.
“Quite frankly, while I’m certainly concerned about this, we expected the numbers would be significant,” he says.
The study also found unresolved legal problems are hitting the public purse outside of the justice sector. Annually, unsolved legal issues result in at least $40 million in additional health care costs, says Farrow.
That’s a conservative estimate based on one additional visit to the doctor each year as a result of legal pains.
“It’s based on annual estimates of what the health care system costs per person and what a modest increase per person amount to,” says Farrow.
He notes the details of these findings will be released in a more fulsome report in the future. As a whole, the ongoing study is also contemplating the mental health impact of unresolved legal problems, says Farrow.
But health care isn’t the only sector feeling the sting of unmet legal needs. A fact sheet published yesterday by the CFCJ says we’re also spending $458 million in additional employment insurance costs every year due to unresolved legal issues and dishing out an extra $248 million in social assistance costs.
What this means is “a well-supported, functioning justice system helps to reduce the knock-on costs of unresolved legal problems,” says Farrow. “The fewer of those problems we have, the more money we’ll be saving elsewhere. It’s not an isolated problem, it’s a collective problem that we need to notice.”
While the lack of access to justice is a well-known problem in Canada, the CFCJ study, funded by the Social Sciences and Humanities Research Council of Canada, is hoping to achieve a more sophisticated understanding of what the cost of that really is.
“What we didn’t really know is exactly what that [lack of access to justice] amount to in economic terms and also in related terms in health and wellbeing,” Farrow says. “I think the important thing is, from a user-centered perspective, we start to understand the connections between law and legal problems as part of broader social problems.”
The overview lays out the wide-ranging perspectives the LSUC has received so far from the profession and other stakeholders on whether to let non-lawyers own law firms. It received more than 40 responses. And as the overview notes: “Many responses passionately expressed opposition to
any ABSs being introduced in Ontario.”
Many agreed with the Ontario Trial Lawyers Association, which said the role of alternative business structures in fostering innovation is “overstated.” Others, like Cognition LLP, said alternative business structures would allow them to lock in capital more easily, thereby insulating firms from cash-flow troubles.
Still others conjured up a new concept, dubbed “ABS plus,” that the law society should be considering.
According to University of Ottawa Faculty of Law professor David Wiseman, new models will only have a “trickle-down” benefit for poor Ontarians who lack access to justice. That’s why he suggested the law society look into an enhanced version of alternative business structures.
The attached chart provides a quick overview of the responses received by the LSUC. Read more about it in this week’s Law Times. All of the submissions are available on the law society's web site.
Update March 3: Chart updated to better reflect LawPRO's stance.
Lawyers donned wacky, colourful wigs at the Law Society of Upper Canada yesterday all in the name of access to justice. It was part of the Flip Your Wig for Justice initiative, a quirky campaign with a serious purpose: raising awareness about the lack of access to justice in Ontario and bringing all parts of the justice system together to help solve it.
“We’re thrilled. We are overwhelmed by the staggering level of support and enthusiasm there’s been for the campaign this year,” says Nikki Gershbain, who is one of the organizers and the national director of Pro Bono Students Canada.
No one institution can solve the access to justice problem in Ontario, Gershbain also says, adding there’s a need for “an organizing mind.” The profession is recognizing this need, according to Gershbain, who cites the law society’s access to justice initiative, known as TAG, as an example of that recognition. TAG creates a forum for the legal and justice sectors to foster teamwork on the access to justice front.
Law Times and Canadian Lawyer are proud to be the media sponsors of Flip Your Wig. Read more about the efforts law firms and other partners are involved in the FYW digital magazine.
|Jasminka Kalajdzic’s report shows a ‘dearth of empirical evidence’ that ABS improve access to justice.|
“There is a dearth of empirical evidence to support any of the contentions made by proponents that [non-lawyer ownership] leads, directly or indirectly, to an increase in access to justice,” wrote Kalajdzic in the study released by the association today.
Kalajdzic looked at existing sources of information on the outcomes of non-lawyer ownership in Britain and Australia. She analyzed the issue from the perspective of access to justice, one of the benefits supporters have argued as a reason Canada should allow ABS, something several provincial law societies have begun considering.
One of the main gaps Kalajdzic found was the fact that significant areas of unmet legal need in Canada are in family and criminal law, a field the research suggests law firms owned by non-lawyers have been slow to enter.
“Criminal and family law problems were the two most serious types of problems identified by respondents in that survey,” wrote Kalajdzic, citing Ontario data on people’s civil legal needs.
Kalajdzic’s report also cited other research showing 70 per cent of family law litigants go without counsel because they can’t afford a lawyer, but when it comes to the alternative business structures in Britain and Australia, firms have largely focused on personal injury matters rather than family law.
“According to [publically traded law firm] Slater & Gordon’s 2014 Annual Report, over 80 per cent of its total revenue (in both the U.K. and Australia) is derived from personal injury work,” wrote Kalajdzic, with the remaining areas covering family, conveyancing, and wills and estates matters.
“Whatever economies of scale can be generated by large consumer firms as a result of alternative sources of capital, new technology, operational design and branding, the evidence to date shows that they are far more likely to occur in areas of practice than can be easily commoditized,” she added.
The association welcomed Kalajdzic’s report.
“Clearly, Prof. Kalajdzic underscores that the evidence in support of ABS is just not there,” said Charles Gluckstein, past president of the association.
Kalajdzic’s study did acknowledge evidence of some benefits of non-lawyer ownership outside of the access to justice question. They include increased economies of scale through, for example, using innovative technology. But, she added, that doesn’t necessarily mean cheaper services.
“While it is true that some ABS like Slater & Gordon have been successful in branding, using innovative technologies, achieving economies of scale, and increasing the number of personal injury claims, there is no data documenting a decrease in the cost of legal services or the rate of self-representation,” she wrote.
The court is continuing an ongoing update of its web site, with an electronic news service to publicize its initiatives and provide more information about its operations to lawyers and the public.
The court hopes to post informal news notes on a weekly basis, which can be accessed through its RSS feature, Twitter, or on the website itself.
Topics on the e-news feed will include “special projects and outreach efforts,” says Gene Jamieson, senior law officer for the provincial court.
The web site was relaunched last month, with a new design that Jamieson says is intended to be more user friendly.
The main screen is divided into various categories to ensure easy access in a number of areas, including past decisions, court locations and contact information, practice directions and forms for different court matters.
Much of this information was previously available online. The goal of the updated site is to present it “in a format and structure that makes the information easier to find,” says Jamieson.
Courts in B.C. were among the first in the country to post rulings online in a timely fashion. Since 2012, the provincial court in B.C. has used the CanLII, to distribute its decisions rather than post its own rulings. CanLII depends on the courts to send decisions to add to its database. On average, about 25 decisions per month from the provincial court in B.C., were posted on CanLII last year.
Jamieson says the court believes that the decisions are more accessible by having a direct link to the CanLII database on the court’s web site.
The website also includes a list of judges and where they preside, although they are identified only by their last name and first initial, including Chief Judge Thomas Crabtree.
The court is asking for input from the public and the legal community says Jamieson. And, say, if there is a request to include the first name of judges — who are now only listed with their initial — that is something that will be considered.
|Osgoode law dean Lorne Sossin goes blonde for fun and to highlight the issue of access to justice.|
“This gap between being eligible for legal aid and being able to afford counsel that she fell into meant she wasn’t able to get the legal assistance that could have prevented the crime from happening,” said Lorne Sossin, dean of Osgoode Hall Law School, addressing members of the legal community who came together last week in Toronto to launch the second year of Flip Your Wig For Justice, the pledge-based fundraiser, which aims to raise awareness as well as money for access to justice programs in Ontario.
“How many others do we never hear about because they’re never getting access to the services of the organizations that exist for their benefit, and never getting counsel who could take steps on their behalf?” Sossin asked the audience.
“That kind of silent tragedy is what animates the Flip Your Wig campaign.”
Flip Your Wig may seem to frame the issue with funny coloured wigs, but the six non-profits behind the campaign — the Association in Defence of the Wrongly Convicted, the Canadian Civil Liberties Association, Community Legal Education Ontario, METRAC Action on Violence, Ontario Justice Education Network, and Pro Bono Students Canada — as well as the ambassadors like Sossin, sponsors, and volunteers agree access to justice is no laughing matter.
One of the challenges, according to Sossin, is how to put a face to “what we’re really doing here,” and for him, Abdille’s story did that.
While the fun and flash will draw attention to the cause, it isn’t just about celebrating, Sossin said. It’s about understanding and connecting to the lives that are touched by these organizations.
As the fundraiser’s web site states, the campaign “plays on the combination of the traditional judicial wig, and the turn of phrase ‘Flip Your Wig’ — implying to be angry, or outraged.” For Sossin, this rings true.
“It is playful, it is fun, it is a better fashion statement for some of us than for others, it is coming together, it is the best values of the legal profession and legal community,” he said.
“For me, being an ambassador is trying to walk that fine line between the fun, the sense of community, the sense of shared enterprise and the sense of outrage, the sense of wanting there to be not another tragedy that we can tie in any way to a preventable incidence of access to justice that hasn’t occurred and that ought to have occured.”
Sossin called on those who share the sense of outrage to take steps to make a tangible difference whether by raising awareness and educating others, lending time and experience, or making monetary donations.
“It’s a principle we all adhere to and yet walk by in our daily lives knowing that it’s not lived up to and knowing we can be a part of that change that will ensure no one is left out,” he said.
The campaign’s goal is to raise $100,000 — which Sossin called “ambitious and achievable, as all good goals should be” — but it is not the only goal, he added. Supporters and contributors to the campaign should be aiming to have a broad reach — to participate in, shape, and be a catalyst for change.
Nikki Gershbain, national director of PBSC, says this year is going to be bigger and better than last. The campaign already has eight law firms on board as partners and a list of 80 — and growing — “leading members” of the profession who have “leant their names, their support, and credibility, quite frankly, to the campaign.”
Gershbain calls access to justice a very difficult story, and echoes Sossin by saying Flip Your Wig strikes the balance between focus on a serious issue and celebrating the profession coming together to form a “meaningful response” to the crisis. She credits this balance with making the campaign a success.
Another important aspect of success when addressing the access to justice crisis is looking to the future, Sossin said, and that means turning attention to law students.
“All the deans have been absolutely united in standing behind this. I look forward to sharing stories of the ways in which the next generation of leaders in our community are stepping up for Flip Your Wig.”
Participants can register online to make a difference by:
• wearing a traditional judicial wig, or a wacky one, on Feb. 26;
• making a pledge by sponsoring someone to wear a wig on Feb. 26;
• committing to matching pledges raised by employees, if an organization wishes to get involved.
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