Paul Schabas has been elected to become the next treasurer of the Law Society of Upper Canada.
|Paul Schabas was elected treasurer of the Law Society of Upper Canada today.|
Schabas is a partner and senior trial and appellate lawyer at Blake Cassels & Graydon LLP and an adjunct professor at the University of Toronto, where he teaches media law. He is credited with arguing many substantial cases before the Supreme Court of Canada that have had implications for defamation and equality rights law.
In his first meeting as treasurer, Schabas outlined a list of the five priorities he wants the LSUC to focus on under his watch.
Among them as addressing how the law society can take a leadership role in enhancing access to justice.
“The law society can’t fix the access to justice challenges on its own but it can be more active in working with government, the courts, Legal Aid Ontario, and others, and pushing for changes and improvements in how legal services are delivered in Ontario,” he said.
“We have a critical role to play here to improve access to legal services.”
Other priorities Schabas mentioned included governance issues, operations, as well as licensing and competence. He also spoke about the need to develop a strategic plan to better engage member lawyers and paralegals, as well as members of the public.
The outgoing treasurer, Janet Minor, congratulated Schabas and thanked Convocation before leaving the meeting, as tradition dictates.
Schabas said the five priorities are just a snapshot of what he hopes the law society will focus on, and he is committed to having robust and wide open debates and discussions during his term as treasurer.
“We are all here for the same reason — to improve our profession and act in the public interest — and together we can achieve results we are proud of at the end of our time here,” Schabas told Convocation.
“So let’s get to work.”
An Ontario Superior Court judge has ordered a stay of criminal charges against an alleged drug supplier until he gets a government-funded defence lawyer.
|'It should be obvious . . . the income thresholds being used by Legal Aid Ontario do not bear any reasonable relationship to what constitutes poverty in this country,' wrote Justice Ian Nordheimer.|
A single income individual in Ontario would have to make $12,000 or less in order to qualify for legal aid, according to the ruling in R. v. Moodie.
“It should be obvious to any outside observer that the income thresholds being used by Legal Aid Ontario do not bear any reasonable relationship to what constitutes poverty in this country,” wrote Nordheimer.
“As just one comparator, in a report issued last year, Statistics Canada calculated the low income cut-off, before tax, for a single person living in a metropolitan area (more than 500,000 people) for 2014 at $24,328, or more than twice the figure that Legal Aid Ontario uses,” he noted. “The low income cut-off is the level of income below which persons are paying a disproportionate amount of their income for basic necessities (food, shelter and clothing).”
The Crown had argued the applicant failed to take adequate steps to come up with enough funds to pay defence counsel, suggesting he could have asked for a bank loan, got a second job, or asked a family member to co-sign for a loan. Nordheimer said none of these suggestions are realistic.
“No financial institution is going to loan the applicant money given his income level, his lack of exigible assets, and his outstanding credit card debt,” said the judge. “The applicant’s father has made it clear that he is not going to assist his son in any way. Unfortunately, the applicant’s mother is no better situated financially, than is the applicant, in terms of co-signing for a loan.”
Partly because the applicant’s bail conditions impose a curfew, he was also unable to find a second job, the judge said.
Rowbotham applications have become more common in recent years, according to criminal lawyer Sean Robichaud.
“In the past five years, I’ve seen Rowbotham applications skyrocket and the reason for that, it seems, just as the justice pointed out, is [that] the threshold and criteria that are being used by legal are entirely out of touch with the standards of poverty and need for people seeking legal assistance who can’t afford it,” Robichaud says.
But part of what’s driving Rowbotham applications is also LAO’s reluctance to grant change of solicitor requests when an accused no longer wishes to be represented by their legal aid lawyer, says Robichaud. That leaves individuals who can no longer continue their relationship with their current counsel without a lawyer.
“The change of solicitor application is a different procedure altogether that has nothing to do with poverty, therefore it’s a way for [LAO] to claw back on certificates without violating their own internal polices that have been set by the government,” says Robichaud.
He says these kinds of administrative difficulties add to defence counsel’s hesitation to take on legal aid certificates.
For its part, Legal Aid Ontario says it has to make do with its fixed funding from the province.
“As with all legal aid plans, Legal Aid Ontario operates within a fixed budget so must be responsible in how the public money it receives from the Ontario government is spent,” says spokesman Feroneh Neil.
“The demand for legal aid assistance for low-income Ontarians is high. While the province has recognized this by raising the legal aid financial eligibility thresholds, Legal Aid Ontario has a yearly budget it must adhere to and must prioritize, in accordance with its legislation, the cases it is able to fund.”
The Barreau du Québec has added its voice to a growing chorus of legal groups calling for more public funding and radical reforms to help reduce what they say are ridiculously long court delays that are hindering access to and making a public mockery of the province’s court system, particularly in regards to criminal justice.
|Claudia Prémont notes delays and budget cuts are ‘bad news for the administration of justice’ in Quebec.|
She goes on to list a series of complaints, ranging from delays of up to three years for criminal trials to be heard in Montreal at the Superior Court level, and two years in Quebec Court.
The barreau said those delays, together with a recent $5-million cut in the budget of Quebec’s Directeur des poursuites criminelles et pénales office “spells bad news for the administration of justice.”
The Quebec bar is notably calling on the Liberal provincial government to provide the necessary resources (i.e. a big cheque) to Justice Minister Stéphanie Vallée that will permit her “to remedy this problematic.”
The barreau’s public sortie comes just days after the former head of the Superior Court of Quebec, Justice François Rolland, made headlines for slamming the trial delays in the province’s court system in a Senate hearing in Ottawa.
The former chief justice notably decried the fact that criminal cases by jury are currently being scheduled for 2019.
“Delays are bad for the accused, extremely bad for the victims, and extremely bad for Canadian society and the credibility of our judiciary,” Rolland told the committee, which is examining questions related to court delays and their effects on penal justice across the country.
According to Rolland, changes have to be made to make delays more reasonable like they were before 2009, the year Quebec started invoking mega trials to deal with biker gangs.
“If we don’t do anything we are going to hit a wall, and once that happens we can’t back up,” he said.
Rolland added that when he joined the bench in 2004, jury trials were always set within a year, usually seven to nine months.
“At the time I’m saying this,” he said, “you can’t get a [Superior Court of Quebec] date for a trial set in Montreal before 2017. For 2018, there are a few dates available, and they’re already booking dates in 2019. The situation is similar in Quebec City.”
In addition to the mega trials, he said the rising use of electronic communication of evidence, increased resources in police investigations, and even the increase in Crown attorney hirings have created a massive uptake in demand that the static numbers of judges and courtrooms can’t handle or accommodate.
A few weeks ago, another judge, Quebec Court Judge René De La Sablonnière, also made headlines for a pilot project he’s instigated that aims to reduce delays in criminal court cases.
Calling delays “the cancer of the judicial system,” De la Sablonnière pointed to a sexual touching case he threw out in March, nearly four years after charges were laid.
“These delays erode witnesses’ memories of events, unfairly prolong preventative detention of accuseds, and undermine the credibility and legitimacy of the institution,” the judge told Quebec City’s Le Soleil.
He gave the interview to publicize a pilot project that he and Crown prosecutor Sabin Ouellet have teamed up on.
The unique Quebec-first project aims to increase the number of negotiated settlements in cases by four per cent a year.
Currently, 93 per cent of the 6,600 criminal cases that are opened every year in Quebec are settled without a trial.
In roughly half of those cases, guilty pleas are entered after several delays.
The judge says he and Ouellet plan to steal a page from British Columbia’s approach, in which accused are offered the most lenient punishments possible in exchange for a guilty plea, and given 120 days to consider it.
The second annual Flip Your Wig campaign launched Feb. 25 in the Law Society of Upper Canada’s barristers’ lounge with colourful locks and curls and five organizations putting their heads together to further access to justice for Ontarians.
The Flip Your Wig initiative is a light-hearted, pledge-based fundraising campaign running until the end of March to support the continuing efforts of the Canadian Civil Liberties Association, Community Legal Education Ontario, METRAC – Action on Violence, Ontario Justice Education Network, and Pro Bono Students Canada.
A celebration event hosted by the LSUC on Thursday night kicked of the campaign with legal professionals and members of the organizations gathering to don their wacky dos and get their heads in the game of supporting the very serious issues surrounding access to justice.
This year’s goal is to raise $80,000 and by the time the kick-off event had wrapped, the combined efforts of those involved had already garnered about half that, says Jess Reekie, executive director for the Ontario Justice Education Network.
“Estimates are that 50 per cent of Canadians try to solve their own legal problems, without a lawyer; that figure rises to 80 per cent in family law matters,” said special keynote speaker and recently appointed chief commissioner of the Ontario Human Rights Commission, Renu Mandhane. “The barriers at play are myriad.”
She explains many people have legal issues not covered by legal aid and do not have the means to pay a lawyer, while others do not qualify for legal aid even if their legal issues fall within the organization’s scope, but still don’t have the means to fund counsel.
“The choice then is stark; either work through the legal problem without help or abandon their claim,” she said. “This is not a tenable solution when people’s liberty, mental health, and family life are at stake.”
She said women, those with mental health issues, and racialized claimants tend to have the greatest barriers to access justice in Canada and the growing gap between the rich and the poor is only further placing hurdles in the way of people’s rights to justice.
“Given what’s at stake, we must begin, first, by acknowledging that access to justice itself is a fundamental human right,” Mandhane told those collected for the kick off.
“I call on you to continue to do what you’re doing; advocate for more funding, examine systems and create new systems, work together, be creative and think about the exorbitant fees we charge and what that means for people who need access to justice.”
Donations can be made through the Flip Your Wig for Justice web site. Members of the profession are also being encouraged to support the drive by donating the equivalent of one billable hour in support of access to justice initiatives by the five organizations involved.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.
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.
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