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Access to Justice and the Need for Direct Funding of PBO

28,872. That is how many clients Pro Bono Ontario (“PBO”) served across the province in 2018 through services like its Free Legal Advice Hotline, 3 Law Help Centres, 6 medical-legal partnerships, 2 children’s programs and projects serving low-income start-ups and non-profits. In the past decade, demand for PBO’s services has increased by 272%. Yet the same year that PBO helped a record number of people, the charity narrowly avoided closing its court-based centres because the resources afforded PBO to meet these growing needs have barely budged. This is simply not good enough. It is not good enough because the private bar can do better. It can do better in a systematic way by funding PBO through direct funding from their annual dues.

It is a recognized fact, thanks to Professor Julie MacFarlane’s 2013 Report entitled “The National Self Represented Litigants Project: Identifying and Meeting the Needs of Self Represented Litigants”, that access to justice is slowly starting to be out of reach for the average Ontarian. Part of the reason why that is in Ontario there has been a culture shift away from the concept that one of the things that it means to be a practicing lawyer in Ontario is to give a percentage of one’s time over to performing pro bono services. In fact, it should not be this way because the private bar in Ontario is uniquely suited to address the area most underserved that the leading cause of the access to justice problem: civil non-family law matters, including consumer, money/debt, and employment problems, which account for 60% of legal needs.

LAO has almost entirely withdrawn from this area and the private legal market for many of these services is non-existent. Neither of these factors is likely to change in the near future, but the profession can help address this crisis by establishing a sustainable means of connecting people with lawyers who are ready, willing and able to provide high quality services, free of charge.

The term “pro bono” comes from the Latin phrase pro bono public, which means for the public good. In modern times pro bono has come to mean lawyers providing legal services free of charge, which in Provinces other than Ontario is supported by way of directing funding of pro bono organizations. In British Columbia, Alberta, and Saskatchewan, for instance, the respective Law Societies are already providing stable funding for pro bono organizations through member fees or levies. They are doing this because these three law societies felt that if lawyers have a professional obligation to provide pro bono services; it follows that their governing bodies should provide support to enable them to meet this obligation. They are also likely doing it because as the Supreme Court of Canada stated in Pintea v. Johns, 2017 SCC 23 at para 4  “[m]embers of the Bar are expected to participate in designing and delivering legal aid and pro bono representation to persons who would otherwise be self-represented…”

If other Canadian Provinces provide direct funding through the fees paid by lawyer to pro bono organizations, why not Ontario? The reason is that from its founding in 2001, as a joint initiative of the Law Foundation of Ontario (“LFO”) and Legal Aid Ontario (“LAO”), until 2011 PBO was funded by grants from LFO and LAO. However, in 2009 LAO informed PBO that it would be reducing and ultimately eliminating the grant as part of its broader cuts to its civil non-family supports. As a result, since 2012 PBO has had to rely on the grant it receives from LFO, a small rent subsidy from Law Society of Ontario (“LSO”) and law firm donations.

This is not an appropriate way for lawyers in Ontario to demonstrate their commitment to participating in designing and delivering legal aid and pro bono representation to persons who would otherwise be self-represented. Ongoing secure funding, on the other hand, as committed to in British Columbia, Alberta, and Saskatchewan is.

It is widely accepted that the legal profession must play a role in promoting access to justice. While pro bono is not a complete solution to the access to justice crisis, it is a key component, and has an immediate, measurable impact on individuals in need. In order for lawyers in Ontario to demonstrate their commitment to pro bono they need to follow the lead of lawyers in British Columbia, Alberta, and Saskatchewan in providing direct funding to PBO. To do that requires that the LSO commit to directing $25 from each licensees current annual dues to fund PBO on an ongoing basis. Only when that happens will Ontario be on the road to properly addressing the access to justice issue in Ontario.

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