The following national problem should be part of every party’s federal election platform: the majority of the population cannot afford legal services at a reasonable cost—the legal advice of a lawyer is not affordable.
This is the most serious and damaging problem that Canada’s justice system and the legal profession have ever faced.
The abundant in-depth analytical literature provides this definition of the problem: “The majority of the population cannot obtain legal services at reasonable cost.” Or, the legal profession has priced itself beyond the majority of the population.
It is a problem caused by the obsolescence of the method of providing legal services, i.e., the costs of producing legal services are too high, due to a lack of innovation in the methods of doing the work necessary. It is innovation that creates national support services for the production of legal services. Therefore it is a type of innovation that has to be carried out by a national agency, such as Canada’s law societies acting together, collectively. Law firms and lawyers cannot individually bring about the necessary changes in the methods of producing legal services. Their volumes of production are too small and their degrees of specialization are not great enough to produce the necessary cost-efficiency. But Canada’s law societies have not tried to perform this duty, neither individually nor collectively.
This is a national problem that can be solved only by nation-wide action, i.e., by federal government and federal parliamentary action.
“Federal action” is required to create the necessary specialized support services. Just as the Federation of Law Societies of Canada sponsored the creation and maintenance of CanLII (the Canadian Legal Information Institute), a national institute needs to be created that provides the permanent expertise and support services necessary to making legal services adequately affordable. It performs a function comparable to that of a civil service for an elected government. Law society management lacks the expertise, permanent management, and motivation, necessary to solve the problem. Were the situation otherwise, the problem would not exist.
There are 3 sources of legislative jurisdiction for such “national action”:
- The “regulation of trade and commerce” power of federal legislative jurisdiction, enables federal legislation and administrative action to be applied to this national problem–see s. 91(2) of The Constitution Act, 1867.
- the P.O.G.G. clause (“peace, order, and good government”) of the preamble of s. 91, Constitution Act, 1867-which, per Prof. Peter Hogg (OHLS), Constitutional Law of Canada 5th ed. (Thomson Carswell), is treated as a residual clause, in spite of its wording (“not so as to restrict the generality of the foregoing”) and such “residuals” include, “national action required,” and “emergency matters”;
Section 91. “Legislative Authority of Parliament of Canada
It shall be lawful for the Queen, by and with the Advice and Consent of the Senate and House of Commons, to make Laws for the Peace, Order, and good Government of Canada, in relation to all Matters not coming within the Classes of Subjects by this Act assigned exclusively to the Legislatures of the Provinces; and for greater Certainty, but not so as to restrict the Generality of the foregoing Terms of this Section, it is hereby declared that (notwithstanding anything in this Act) the exclusive Legislative Authority of the Parliament of Canada extends to all Matters coming within the Classes of Subjects next hereinafter enumerated; that is to say, … .”
- The Canadian Charter of Rights and Freedoms, section 15 equality rights provision.
“(1) Equality before and under law and equal protection and benefit of law:
Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.
“(2) Affirmative action programs
Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.”
– but …
Section 1 “reasonable limits” limitation on the scope of rights and freedoms:
“The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”
The following paragraph provides the conceptual bases for this “equality rights” argument:
The duty to make legal services adequately available should be given constitutional status based upon a Canadian Charter of Rights and Freedoms s. 15 “equality rights” argument that recognizes, “legal services at reasonable cost” as a constitutional right, based upon the principle that being middle class, or of “middle income,” and unable to obtain legal services at reasonable cost, is a state of one’s condition that is “immutable, or changeable only at unacceptable cost to personal identity,” and to one’s ability to invoke constitutional rights and freedoms, and the rule of law. And, Charter arguments need lawyers because they cannot be effectively made without the advice and advocacy of a lawyer. See: Law v. Canada, 1999 CanLII 675,  1 S.C.R. 497, and progeny.
The factual basis for such “federal action” is that this is a national problem that can be dealt with effectively only by way of national action. Therefore the provincial legislative powers of The Constitution Act, 1867, s. 92(13) “the administration of justice in the province”; and, s. 92(16) “generally all matters of a merely local or private nature in the province”; do not provide a sufficient foundation for effective action.
Canada is a democracy that is heavily dependent upon the rule of law, as guaranteed by the Canadian Charter of Rights and Freedoms. But for people who are not lawyers, they cannot enforce the rule of law, nor the proper functioning of their democracy, without the help of a lawyer. However, for the majority of the population, such legal advice services are too expensive.
Many thousands of lives have been severely damaged because of the unavailability of affordable legal advice services (as distinguished from “routine legal services.”)
Judges have issued warnings that their courts are “grinding to a halt” because of the high percentage of litigants who are unrepresented litigants. Their cases take much longer to go through the courts because they lack the necessary legal training, thus overwhelming courts’ “time and personnel” resources. But no government has taken action to relieve such suffering and damage being caused.
Specifically, no government has held a law society to account for its failure to try to solve the problem. There is no law society program in effect, the purpose of which is to solve the problem. And, there is no law society public declaration that this problem is a law society problem, and it is the law society’s duty in law to solve this problem.
Instead, law societies offer “alternative legal services,” based upon a “cutting costs by cutting competence” strategy. For descriptions of such alternative legal services, see:
In effect, Canada’s law societies tell the population that never again will the average taxpayer be able to retain a lawyer at a reasonable cost, to perform all of the work necessary to deal with problems requiring legal advice. Such legal services will remain unaffordable for the majority of the population.
It is the duty of every law society in Canada to regulate the legal profession so as to make legal services adequately available to the population. That duty has three parts: (1) competent legal services; (2) ethically provided legal services; and, (3) provide affordable legal services.
For example, in Ontario:
The duty to make affordable legal services available to the population arises from the law that requires the law societies to regulate the legal profession and the monopoly it has over the provision of legal services. In the province of Ontario, that duty arises from the duties created by the Law Society Act, s. 4.2, which states:
4.2 In carrying out its functions, duties and powers under this Act, the Society shall have regard to the following principles:
- The Society has a duty to maintain and advance the cause of justice and the rule of law.
- The Society has a duty to act so as to facilitate access to justice for the people of Ontario.
- The Society has a duty to protect the public interest.
- The Society has a duty to act in a timely, open and efficient manner.
- Standards of learning, professional competence and professional conduct for licensees and restrictions on who may provide particular legal services should be proportionate to the significance of the regulatory objectives sought to be realized. 2006, c. 21, Sched. C, s. 7.
The major victims of this problem and the suffering it is causing are: (1) Canada’s population; (2) the courts; (3) the legal profession because of its drastic shortage of clients; and, (4) legal aid organizations, because it is now very “politically unwise” for governments to fund legal aid adequately by taking more tax money from taxpayers who pay for the justice system, but who cannot obtain an affordable lawyer to deal with their legal problems.
Law society benchers live off the justice system, paid for by taxpayers, but they don’t provide taxpayers with affordable legal services, because they neglect their duty to do so.
So, why should taxpayers continue to give their respect and tax money to the justice system?
See the following published articles (hyperlinked for quick access pdf copies):
(1) “A2J: Solving the Unaffordable Legal Services Problem by Changing Law Society Management Structure”; published: (1) Canadian Lawyer, posted: August 31, 2015; (2) Slaw, posted September 25, 2015.
(5) all of the other “access to justice” (A2J) articles posted on my SSRN author’s page: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=1398484#hide2533233.
Those articles provide an in-depth analysis of the problem, and a solution, and also, access to the in-depth analytical literature on this problem.
Ask all federal election candidates, “what are you and your party doing about this problem and the suffering it is causing?
— Ken Chasse (“Chase”),
member of the Law Society of Upper Canada (since 1966), and
of the Law Society of British Columbia (since 1978).