Access to Justice in the Civil Litigation System
The Canadian civil litigation system is facing a crisis in access to justice. It has become far too expensive, time-consuming, and complex for many Albertans to resolve their disputes through the formal justice system. These barriers reveal a deep disconnect between the legal system and the community it serves. The public is losing faith in the Court’s ability to seek and achieve justice, and this will not change without significant reform.
This information is not new to the legal profession. Compelling and extensive research has been done on this topic, but it does not provide any easy answers. The following segment highlights some of the major issues, current initiatives and future problems that must be addressed in advancing access to civil justice in Alberta.
Issues Facing Access to Civil Justice
The issues preventing access to justice are not simple and discrete. They are integrally linked with other social justice concerns in our community. The headings below outline some of the most commonly flagged barriers to the civil justice system.
A. The Cost of Litigating
The cost of litigation has placed the justice system out of reach for many low and middle income Canadians. The Action Committee on Access to Justice in Civil and Family Matters has reported that the cost of a civil action up to a 5-day trial ranges from $23,083 to $79,750 (Action Committee on Access to Justice in Civil and Family Matters, “Access to Civil & Family Justice: A Roadmap for Change” (Ottawa, October 2013) at 4, n 29 [Action Committee]). It is not unusual for these costs to be much higher in a major centre like Calgary or Edmonton where legal fees are generally higher.
While the cost of litigation increases, government support is decreasing. Legal Aid Alberta's budget has been steadily reduced over several decades, compelling it to impose lower financial thresholds to qualify for its services. At present, Legal Aid's thresholds are so low that a single person receiving government assistance from Assured Income for the Severely Handicapped ($1,588.00/month in 2014) earns too much for full legal representation (Action Committee, ibid; R v Smart, 2014 ABPC 175 at paras 21- 38 [Smart]). These diverging trends have increased the number of people who cannot afford a lawyer, but do not qualify for Legal Aid.
The gap between means and needs has created problems for the entire legal system, but it places particular burdens on civil justice. Except in extraordinarily rare circumstances, civil litigants have no “right” to legal representation. In the criminal sphere, an accused person facing a complex and serious case has a constitutional right to Legal Aid (if they cannot afford a lawyer). Therefore, when a criminal accused cannot afford counsel, judges will order Legal Aid representation, despite their failure to meet the financial guidelines (see generally, Smart, ibid). This further restricts Legal Aid's already drastically underfunded budget for civil legal aid.
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This situation has lead to a noticeable increase in the number of litigants appearing in court without counsel. When compared to parties represented by a lawyer, self-represented litigants are significantly less likely to receive a favourable outcome (The Canadian Bar Association, Reaching Equal Justice: An Invitation to Envision and Act (Ottawa: The Canadian Bar Association, November 2013) at 26 [Equal Justice]). When people cannot afford counsel, but cannot succeed without a lawyer, they are denied access to justice and justice itself.
B. Public Distrust of the Civil Legal System
In addition to monetary concerns, many researchers identify a deep-seated distrust of the legal system within the Canadian public. Many people view the justice system as a self-serving entity that exacerbates problems rather than solves them. The Canadian Bar Association surveyed Canadians about this issue, and their results identified four over-arching negative perceptions:
The system is person-dependant – achieving justice depends on who you know and the luck of the draw than the facts of the case (Equal Justice at 18).
Rights only exist on paper – there is no effective mechanism to honour or access your rights, and no method to enforce the rights that are given to you (Equal Justice at 15).
The justice system cannot be trusted – the justice system can aggravate and perpetuate existing problems will leave participants feeling betrayed and abused (Equal Justice at 16).
The Justice System is difficult to navigate – lacking information about one’s rights renders them useless, but referrals and legal information are often inadequate and leave users “running in circles” (Equal Justice at 20).
These perceptions permeate all segments of our society, but generally speaking, the more marginalized or vulnerable a particular group is, the more acutely these negative opinions are held.
C. The System is Shaped by Legal Insiders, not the Public
Canadians view the legal system as inward looking and unwilling to change unless it benefits “legal insiders” – i.e. judges and lawyers. The public feels that the legal system does not listen to the voices of the community or the general public, and that it does not prioritize their concerns. This frustration comes into focus when examining many different experiences and priorities in our justice system. For example:
Excessive delay is repeatedly flagged as a barrier to justice. When members of the public are compelled to appear in Court only to face repeated adjournments, they feel disrespected and unimportant. Alarmingly, many people reported that the delay they faced by virtue of the court system negatively impacted their substantive rights (Equal Justice at 16).
The “Commercial List” in Alberta permits certain commercial files to enter a separate queue to have their matter heard on an expedited basis. More often than not, the matters on the Commercial List are ones involving corporations with money and experienced legal counsel. Similar lists do not exist for non-commercial and family civil matters, where self-representation is much more likely (see: Lustre Studio Inc. v West Edmonton Mall Property Inc, 2014 ABQB 525 at para 17).
Self-represented litigants are not treated as the permanent and integral part of the civil justice system that they now are. For example, in Alberta provincial family court matters, 40% of cases feature at least one self-represented litigant. Dr Julie MacFarlane, "The National Self-Represented Litigants Project: Identifying and Meeting the Needs of Self-Represented Litigants" (May 2013) at 33 [National SRL Project]).These individuals fare worse than parties represented by counsel, and are often treated as an inconvenience that slows down legal proceedings. Despite this, programs and guidelines for assisting self-represented litigants are inconsistent and ill-defined. These uncertain expectations engender feelings of injustice by all parties to the dispute.
(see, for example, Michelle Flaherty, “Self Represented Litigants: A Sea Change in Adjudication” in Graham Mayeda and Peter Oliver eds, Principles and Pragmatism: Essays in Honour of Louise Charron (Markham: LexisNexis, 2014) at 333, 335; Jona Goldschmidt and Loretta Stalans, “Lawyers’ Perceptions of Fairness of Judicial Assistance to Self-Represented Litigants” (2012) 30 Windsor Y.B. Access Just. 139 at 161-165).
Even when attempting to build a more inclusive justice system, there are concerns that legal insiders are reinforcing their monopoly on Court control. Efforts to reform the justice system are largely driven by lawyers and judges -- the public is not engaged in this movement. When legal insiders control meaningful reform efforts, there is the potential to retrench the negative perceptions that isolate the legal profession from the Canadian public (Ab Currie, The Legal Problems of Everyday Life: The Nature, Extent and Consequences of Justiciable Problems Experienced by Canadians (Ottawa: Department of Justice Canada, 2007) at 1 [Currie]).
D. Misunderstanding the Nature of Legal Problems
Lawyers tend to view legal problems as distinct, isolated issues that periodically pop-up, and are properly resolved through legal proceedings. Members of the public view legal problems with detachment -- it is something that will happen to someone else and, even if should it arise, it will be handled by a lawyer. Neither of these perceptions reflect the reality for many Canadians.
Approximately 1 in 3 Canadians experience a “justiciable issue” (one that raises a legal issue) over a three year span (Currie, ibid at 10,11). The vast majority of justiciable issues are resolved without involving the formal justice system (Action Committee at 11; Equal Justice at 32, 34).
These problems do not occur uniformly across our population. The poor and vulnerable (for example, those who are disabled) are significantly more likely to experience legal problems than the rest of the population. Those poor and vulnerable groups are more likely to experience “clustering”, wherein a legal problem sets off, or occurs in the midst of, other serious problems. This often creates a domino effect on other aspects of the individual’s legal, social and mental health (see Action Committee at 2; Currie at 89; Equal Justice at 16).
E. Public Apathy
All of the aforementioned problems have created a culture of public apathy, indifference, or even hostility towards the justice system. Albertans do not feel like they "own" the justice system in a way similar to the health care or education systems. This indifference has permitted government funding for the system wane to its current dismal figures with little or no public outcry. While the justice system (and specifically Legal Aid) is drastically underfunded, this fact will not change without political will. The justice system's failure to engage with the public and respond to its needs has left it without a sympathetic public ear.
Current Positions and Initiatives
The civil justice system is not oblivious to the criticisms it faces. Across Canada and in Alberta specifically, there are various initiatives that are attempting to address these (and other) barriers to civil justice. Some of the most notable examples are outlined below.
The Expansion of Small Claims Court
Provincial Court (Civil Division), commonly known as Small Claims Court, is a statutory court designed for ordinary people with smaller civil claims to handle their legal disputes without having to hire a lawyer. Since 2002, the financial limit for Small Claims Court has gone from $7,500 to $50,000 (Alberta Government Press Release, July 21, 2014). This rapidly increasing limit recognizes that the Court of Queen’s Bench does not offer a proportional response for resolving a dispute under $50,000. Raising the monetary threshold for Small Claims Court allows more people to access a simplified procedure where they can competently represent themselves without the expense of a lawyer. By moving more civil claims into a streamlined procedure, the goal is to decrease the cost and complexity in accessing traditional justice. This monetary increase is not, however, a perfect initiative. The increased cap has lead more lawyers to handle Small Claims cases, which can negatively impact the level playing field that makes this Court accessible.
Pro Bono Law Alberta Courtroom Initiatives
Pro Bono Law Alberta (PBLA) is a non-profit organization that seeks to promote access to justice in Alberta by creating and promoting opportunities for lawyers to provide free legal services to persons with limited means. PBLA offers a variety of programs to advance access to justice. Among its many commitments (and with the assistance of local law firms), PBLA operates two programs to advance access to justice in Calgary and Edmonton courtrooms:
the Civil Claims Duty Counsel (CCDC) project recruits volunteer lawyers to provide self-represented litigants with summary legal advice and assistance in drafting documents and preparing for court appearances;
the Queen's Bench Amicus Project brings volunteer lawyers into Queen’s Bench Justice and Masters Chambers to assist self-represented litigants who are set to appear that day. The volunteer lawyers act as 'amicus curiae' and help the court understand the litigant’s issues and position.
Read more about PBLA’s initiatives, its funders, and the law firms that support its programs here.
Community Outreach Legal Clinics
While Legal Aid Alberta's budget has declined, a variety of low-income community based clinics are shouldering a greater burden to provide support, assistance and advocacy to people who cannot afford counsel. Clinics such as Calgary Legal Guidance and the Edmonton Community Legal Clinic provide assistance to people who cannot afford a lawyer, but do not qualify for Legal Aid.
In recent years, these and other clinics have adjusted their service model to serve more Albertans. This has included a growing network of smaller community outreach legal clinics (for example: the Calgary Immigrant Women's Association (CIWA) and the Aboriginal Friendship Centre). It also includes a graduated approach to the level of legal assistance needed. Visit PBLA's website for a detailed list of the Alberta legal outreach programs and clinics (here).
Student Legal Assistance and Student Legal Services
The Province of Alberta is home to two law schools (the University of Calgary and the University of Alberta). These institutions have launched student-operated clinics that assist self-represented litigants in limited matters when the clients cannot afford to hire a lawyer. Student Legal Assistance operates in Calgary, and Student Legal Services operates in Edmonton.
Limited Scope Retainers
The Law Society of Alberta and Canadian Bar Association have been promoting Limited Scope Retainers (LSR) as a way to meet the legal needs for some middle income Albertans. An LSR is an agreement to between a lawyer and client whereby the lawyers performs part, but not all, of the services related to a legal matter (see, Law Society of Alberta, Code of Conduct (Law Society of Alberta, 2018), definitions (the “Code”)). In other words, it "unbundles" the full-package traditional services offered by a lawyer.
The public is in favour of LSRs. The legal profession is, however, much more hesitant to hop on board. (Dr. Julie MacFarlane, “Listening to the Public: Getting the Public and the Profession on the Same Page about Unbundled Legal Services”, in The Canadian Bar Association, Alberta Branch, The Limited Scope Retainer (The Canadian Bar Association) at 20 [MacFarlane]. The lack of enthusiasm stems (at least in part) from an uncertainty about how an LSR impacts the fiduciary duties and obligations that protect solicitor-client relationships (see, Anne Kirker and Jennifer Blanchard, “Limiting the Risks of Limited Scope Retainers”, The Canadian Bar Association, Alberta Branch, The Limited Scope Retainer: (The Canadian Bar Association) at 14). In addition though, there is a large cultural component within the legal profession that is resisting a move to LSRs. Until the legal profession wants to incorporate LSRs (meaning, until they see it as necessary or profitable), it will be challenging for them to find footing in mainstream practice.
In an effort to advance LSRs, the Law Society of Alberta has published best practices for LSRs in its Code of Conduct (the Code, s. 3.3-2). The Canadian Bar Association has also published articles promoting LSRs and highlighting their financial and practical benefits (see: MacFarlane; Robert Harvie, Q.C, “Limited Scope Retainers: Why Me, Why Now?” The Canadian Bar Association, Alberta Branch, The Limited Scope Retainer (The Canadian Bar Association) at 6. It remains to be seen if these efforts will lead to an increased rate of LSRs. If the public and the legal profession can reach common ground on the utility of LSRs, they have the potential to increase access to justice by providing tailored and affordable assistance when needed.
Legal Expense Insurance
Another option for middle income Albertans is known as legal expense insurance ("LEI"). LEI works like other insurance schemes -- individuals pay a premium and in return, they receive legal advice and representation if and when they need it. While novel in Canada, legal expense insurance is relatively common in Europe, and related offerings exist in the United States.
There are many perks to LEI: it is much more affordable than hiring a lawyer; insurers can receive favorable rates that keep premiums relatively low; and it allows persons with meritorious claims to pursue their matter. LEI schemes can also offer preventative or information-based services. For example, some insurers include a "help line" with coverage, which provides summary legal advice and information.
LEI is not, however, a cure-all for the failings of the justice system. Most LEI offerings do not include coverage for family law matters. Often an insured is not given the opportunity to choose their lawyer. Mechanisms to review coverage denials are unclear. And most importantly, it is only a viable option for persons who can afford the premiums -- LEI will not assist the poorest Canadians, and is unlikely to alleviate the burdens on Legal Aid.
For more information see: The Canadian Bar Association, "Legal Expense Insurance", Working Paper 1
The current changes to the justice system are positive, but they will not remedy the significant barriers to justice experienced by the public. The following section outlines the predominant theories on what the future holds for access to justice reform, and what it will take to rebuild a healthy relationship between the justice system and the community.
Current reforms are focused on courtroom and litigant-based assistance. Research indicates, however, that most justiciable problems never reach the courtroom (Andrew Pilliar, “Law and the Business of Justice: Access to Justice and the Profession/ Business Divide” (2014) 11 Journal of Law & Equality 5 at 10). In recognition of this reality, reformers are advocating for a change in how we view the courtroom. Instead of viewing Courts as the only avenue of legitimate dispute resolution, it should be viewed as a possible, though not exclusive, path to justice. In other words, reformers have adopted the mantra, "court if necessary, but not necessarily court" (Action Committee at 11).
In order for the re-centred court model to succeed, legal assistance must be moved “further upstream” (Equal Justice at 62). More people can avoid their problems entirely, or at least resolve them more economically, if the matter is dealt with long before the formal justice system is engaged. Mediation and informal negotiation are viable options to resolve a dispute long before a Court action is started. In addition, early intervention provides community members with a heightened sense of justice, as they are more involved and can craft their own solutions.
Making Law a Life Skill
In order for the re-centred court model to work, the public must have a working knowledge of their rights. People cannot be proactive about their legal rights or access community resources if they do not know they exist. Many people lack basic information or know-how to protect themselves against justiciable events, or to diffuse a legal problem when it arises. For these reasons, increasing the public's legal I.Q. is a central feature of most future access to justice reforms.
The Canadian Bar Association is exploring new ways to build every day legal competencies within the community. For example, it is involved in developing a series of “Legal Health Checklist" that outline the documentation and protections any person can put in place to protect their legal standing (Equal Justice at 68). These checkups will be placed at various community hubs -- not just legal clinics.
Public Legal Information
On a related note, people who are interested in learning about the law should be able to easily access free, accurate, and reliable public legal education and self-help materials. While a great deal of public information on legal rights currently exists, this information is uncoordinated, has significant gaps, and its quality is unverified.
Some reformers have called for a coordinated online hub of current, verified public legal information (Action Committee at 13). Law Central Alberta has taken on this challenge. Law Central Alberta is a non-profit organization that seeks to develop an online portal that will act as the first point of access to legal information and services in Alberta.
Early Resolution Services
A re-centred court is one that emphasizes the early resolution of disputes, and provides opportunities for consensual dispute resolution whenever possible. It emphasizes a "multi-door courthouse" that provides much more than adjudication of disputes before a judge (Action Committee at 11).
For instance, instead of immediately opting for formalized legal proceedings, voluntary dispute resolution mechanisms such as conciliation and/or mediation are available and encouraged whenever possible (before and during a formal action). Consensual dispute resolution increases an individual's ownership of the situation, and the allows them to craft their own notion of justice in a way that is rarely achieved in a courtroom. This can occur within a courthouse itself, but would also benefit from an expanded community outreach program.
Holistic Service Providers
Legal problems do not arise in isolation from the other aspects of life. They tend to "cluster" and intersect with non-legal issues. Despite this tendency, the justice system is structured to only assist individuals with their legal problems, ignoring the fact that these issues are integrally linked with the non-legal aspects of their life.
A reformed justice system should recognize that legal and non-legal problems are often fused and difficult to untangle. Community outreach clinics that meld legal and non-legal service providers (for example, lawyers and social services or health practitioners) could more meaningfully respond to the problems faced by the community, in a way that reflects how these problems are actually experienced.
However, the holistic model has its challenges. For it to succeed, holistic service providers must design mechanisms that respect the confidentiality concerns for all providers. Despite this challenge, some community clinics in Alberta are moving towards a more comprehensive approach to assistance.
A User-Centric Court
The legal system has long operated on the basis that it is owned by lawyers and judges, rather than the public. In order for the public to become engaged in the justice system, it must become responsive to its rightful owners -- the public. There are several ways to refocus the Courts on the public it serves. For example:
Courts can be more accessible by simply employing "greeters" to direct people where they need to go and what resources are available to them.
Courts would benefit from enhanced (and more concretely defined) assistance to self-represented litigants, including increased information about dispute resolution, and procedures designed to facilitate individual ownership of justice.
One of the most common complaints of self-represented litigants are problems completing and filing court forms. A user-friendly, simplified form that emphasizes practical knowledge and explains the terminology it employs would greatly facilitate access to justice and ease stresses on the litigants and the courts (National SRL Project at 59-63).
The justice system should be harnessing modern technologies to ease filing and other procedural requirements. In doing so, it should be careful to respect the limitations of technology and retain more personalized assistance models for individuals who are not computer-literate.
Some broader structural changes that could facilitate access to justice for areas frequented by self-represented or non-corporate litigants. For example, other provinces have created a Unified Family Court which handles all the matters related to relationship breakdown. This prevents litigants from having to switch between two different Courts in order to finalize a divorce, custody and maintenance arrangement (for a more expansive view, see, Gerald TG Seniuk and John Burrows, “The House of Justice: A Single Trial Court” in Peter Russell, ed, Canada’s Trial Courts: Two Tiers or One? (Toronto: University of Toronto Press Incorporated, 2007) at 163- 214).
Re-centred courts should also consider the benefits gained by an expanded role for case management. Self-represented litigants express frustration at the inconsistency and inefficiency produced by appearing before a series of different judges. The self-represented litigants exposed to case management are more satisfied with their experience, and were relieved of the need to re-establish credibility every time they appeared in court (National SRL Project at 14). Case management encourages settlement and keeps expectations realistic early in the litigation, before costs become out of control.
Long-Term Public Engagement
While money does not solve all the legal system's problems, the fact remains that the justice system is drastically underfunded. This fact will not change without political will. That will only come with public interest and engagement.
The public's apathy towards the justice system stems from many factors -- not the least of which is the system's longstanding inward focus and failure to seek public support and input. For too long, the justice system has failed to meaningfully engage with the public it serves. In order to shift these tides and re-establish a relationship with the public, the justice system must be prepared to spend effort on long term engagement. There have been several suggestions to accomplish these ends, however, none of them offer easy or quick fixes:
A long term public advertisement campaign to shift public opinion, similar to a no smoking campaigns.
Locating an supporting an access to justice "champion" from the community who can galvanize support and engage a critical mass of people. It would be helpful if the champion was not a legal insider.
Forming Access to Justice Commissions as the provincial and federal level to coordinate standards and goals of access to justice across Canada and exchange ideas. These commissions should include lawyers, judges, other social service providers and members of the public. It is important to listen to the public 's voice
Support research in access to justice, but recognize that this research has to be translated into concrete action.
Hopefully these efforts, over a sustained period of time and coupled with the reforms outlined above will advance access to our civil justice system and restore faith in our legal institutions.
Are you interested in expanding on this research? Please download our Annotated Bibliography and take a look at our sources to help get you started.