Any effort to tackle the so called "access to justice problem" in the Ontario justice system must begin with a clear definition on what is meant by the term "access to justice problem." For the purpose of this commentary the "access to justice problem" in Ontario speaks to the lamentable circumstance which sees ordinary Ontarians unable to access legal services on account of its prohibitive costs. The manifestation of this very serious problem is evidenced by the steadily increasing number of self-represented litigants coupled with the increasing amount of time it takes to bring a case to resolution. In this commentary I will attempt to identify some of the impediments to access to justice and suggest a few policy prescriptions to tackle the problem.
A few years ago I assisted a friend in trying to retain a family lawyer. My friend was a a single woman earning a bit over $40,000 per year with a mortgage free home worth roughly $225,000. All the lawyers I approached on her behalf except for one stated matter of factly, "she can't afford me." The one lawyer who agreed to take the case quickly devised a plan which called for her to move into an appartment and sell her house. It was crystal clear to my friend that what this lawyer was saying to her was that she would pay his fees with the proceeds of her house. This experience caused me to think seriously about this issue. I realized that if this single woman who was earning $40,000 a year could not afford a lawyer and the average family income in Ontario is in the area of $60,000 per year then who can ? As the evidence is beginning to reveal there is a significant number of individuals in Ontario who can not afford lawyers fees.
Policy makers who are serious about accesss to justice need to bring all the stakeholders together to look into the question of how can we make the cost of legal services accessible to average citizens. As unpalatable as it is this may require a review of how legal servicces are billed.
Insurance coverage of
defence costs only:
Some years ago I was involved in a case against Women's College Hospital. I was representing a poor woman who asserted that she was fired from her employment because she asserted her right to overtime pay under the Employment Standards Act. In the course of this litigation I came to learn that the hospital's legal defence was fully covered under an insurance policy which provided for their full defence costs but not for liability. I was made to understand that any liability payment would come from hospital revenues and not the insurer. I was many years younger then but I understood that this type of insurance coverage was very problematic to the efficient operation of a civil litigation system because there is no insentive for the hospital to settle and certainly an incentive for counsel representing the hospital to litigate the case rather than settle the case.
Policy makers who are serious about access to justice need to look into the impact that this type of insurance coverage has on acting as an impediment to the quick and efficient resolution of disputes.
Costs on interlocutory
motions and trials:
The conventional wisdom thinking that all litigants must be treated the same when it comes to the adjudication of the issue of costs in civil litigation has been in my personal experience one of the most significant impediments to access to justice in Ontario. The reason is simple. A costs award against GM in a proceeding against RBC is a mere cost of doing business which will have very little impact on their viability. A cost award against a poor litigant who was beat up by the police and is unable to work is clearly a very different matter. The costs award against the poor litigant can and too often slams the doors of justice in their faces. Costs awards on both interlocutory motions and trials are all too often creating an impediment to access to justice.
Policy makers who are serious about access to justice need to reevaluate this practice. The principle that costs ought not to deprive a poor litigant access to the courts to have their case heard on it merits likely requires some sort of statutory amendment in the Rules of Civil Procedure or Courts of Justice Act to that effect. The current practice of leaving this to the court's discretion is not working very well it would seem. Readers who are interested in this point should review Justice Dennis Lane's costs decision in Walsh v. Regenscheit where he said that the people pay for the courts and they ought not to be denied entry because of the fear of losing their case and the devastating financial consequences that may flow from that. Justice Lane is a wise man.
NOTE: This piece is written for the sole purpose of exchanging ideas on an issue of publice importance. Democracy and the rule of law work better with the free exchange of ideas.