Minding the Gap

It sometimes seems that efforts to improve access to justice follow the age-old pattern of “One step forward, two steps back.” No sooner is a gap identified than a committee is struck to propose and develop gap-filling solutions, often without regard to the possibility that those solutions may themselves create new gaps.

Legal Aid Manitoba recently announced a significant change to its financial eligibility criteria. The Notice to the Profession, issued earlier this month, sets out the current income guidelines for eligibility and re-introduces a partial user-pay system for those outside the regular guidelines but within expanded financial criteria.

The new criteria put minimum wage earners within the basic eligibility guidelines. Manitoba’s minimum wage, as of October 1, 2015 is $11.00 per hour and at 40 hours per week that equates to an annual full-time income of $22,880, just below the $23,000 cutoff for a single person household.

This seems like a very positive change and it surely will increase the number of individuals who will be eligible to receive Legal Aid services.

The changes were not accompanied, however, by any new job postings at Legal Aid Manitoba or by any announcements of increases to the Legal Aid tariffs paid to lawyers. Demand may well increase with the expanded financial eligibility but it’s not certain that there are enough lawyers willing or able to provide the services that will now be offered.

At the same time, the range of services provided by Legal Aid didn’t expand at all. Under current policy, summary conviction offences are only covered where it is likely the individual will go to jail or lose their job if convicted. In family law proceedings, there is coverage so long as there is some likelihood of success, except that family property divisions are not covered. In addition, the following continue to be excluded from coverage:

  • real estate transactions;
  • wills and estates;
  • corporate or commercial matters; and
  • civil suits.

Some of these issues are commonly seen at Legal Help Centre where the service focus remains on filling gaps in access to justice and supports are provided at no cost to individuals with household incomes of <$50,000 annually. Nearly 2800 client assists were made at Legal Help Centre in 2014/15 and this number is expected to rise in the current year.

What remains to be seen is whether the expansion of Legal Aid’s financial eligibility criteria will have any noticeable impact on the gaps that Legal Help Centre is working to fill.

My guess is that the volume of need is also expanding such that demand for services supplied by both Legal Aid and Legal Help Centre will continue to exceed the supply of those services. The usual pattern is that as soon as gaps in access to justice are be identified and filled, new gaps arise, whether arising from legislative changes, procedural reforms or administrative processes.

On the horizon in Manitoba, for example, are significant changes in family law procedure that appear likely to confound and complexify the Case Management process in the Court of Queen’s Bench Family Division, at least for those who are self-representing.

The Rule changes, going into effect November 1, 2015 are expected to increase demand among self-represented litigants for help in preparing for case conferences. These same changes will potentially also increase the workload for family lawyers taking Legal Aid certificates, again, with no concurrent increase in their remuneration.

Minding the gaps in access to justice is a challenge that continues to defeat even those most well intentioned. Although stakeholders are encouraged to share information and collaborate, there’s little evidence it’s happening other than in limited circumstances. For example, informing one another of decisions after the fact has some value, it would be more effective to implement a consultative process with other stakeholders to identify and address potential new gaps before they arise.

I find that working in what has become an access to justice sector requires constant vigilance as gaps continue to arise in spite of efforts to plug them. In this context, the reminder to Mind the Gap is always relevant.

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