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Meaningful Access to Justice: What Is the Role for Tribunals and Adjudicators?

A review of “The Justice Crisis: The Cost and Value of Accessing Law”, Edited by Trevor C.W. Farrow and Lesley A. Jacobs (UBC Press, 2020)

This recent book arises out of the research done by members of the Costs of Justice research project with a focus on the cost and affordability of justice in the civil and family law areas. The two main research questions in this project are: what is the cost of delivering an effective civil justice system; and, what are the economic and social costs of failing to do so?

The main audiences for this book are those tasked with administering the civil justice system, including governments. However, there are parts of this book that are of interest to those of us working in the administrative justice system.

In the introduction, Farrow and Jacobs highlight an important distinction between “access to justice” and “access to meaningful justice”. The traditional approach to access to justice has focused on the timely access to formal legal institutions, such as the courts, to secure redress for real or perceived wrongs. The alternative approach of “meaningful access to justice” focuses on access to a range of resources (including, but not limited to, courts) that will assist people to understand, prevent, meet and resolve their legal challenges and legal problems. Under this definition, access to justice is measured by how helpful the pathway is for addressing a legal problem, rather than simply access to lawyers and adjudicated decisions.

The surveys reviewed in this book have shown that 48.4% of adult Canadians will experience at least one legal problem over any given 3-year period, demonstrating the pervasiveness of legal problems in the lives of Canadians. The most common types of legal problems experienced by adult Canadians involve consumer, debt and employment issues, followed by problems related to neighbours, discrimination, and family (relationship) issues. Other frequent problems reported include issues involving wills, medical treatment, housing, personal injury, disability, and social assistance. However, a study cited in the book reveals that fewer than 7% of people report going to courts and tribunals to resolve a legal problem and fewer than 20% of people report seeking legal advice. The vast majority of “paths to justice” for Canadians are outside of the formal justice system, including non-legal assistance, the Internet, friends and family, and informal negotiations with the other disputing party.

The book surveys the financial costs of access to justice, but also notes other significant costs that we should not lose sight of, including spending time to understand the problem, identifying possible solutions, and sorting out the rules and processes for the various legal options. Other important costs come in the form of lost employment, stress, physical and emotional costs, and productivity costs. These costs have an impact at the individual level and at the societal level. As Farrow and Jacobs note in the introduction:

Each of these costs – economic and social, individual and collective – is significant. Taken together, they are cause for significant concern. To date these costs, and other related justice system costs and value related considerations, have been significantly understudied in the world-wide access to justice literature. This lack of focus and understanding has created a major gap in the context of evidence-based policy thinking and reform. It is this gap which is explored by the contributions to this book.

Most of this book is directed at civil and family law litigation and therefore of little direct relevance to administrative tribunals or adjudicators. There is an article by David Wiseman, on the impact of the licensing of paralegals in Ontario in representation at the Landlord and Tenant Board. The conclusion of this study is that this licensing has only been effective at improving access to justice for landlords and has done little for tenants who in most cases are unable to afford any fee-based legal assistance. Further study on the use of paralegals in other disputes, such as human rights and disability-related claims, might show some evidence of the effectiveness of licensing of paralegals in access to justice. Noel Semple discusses contingency fees in the context of civil litigation, but this is also a fruitful area of study in disability and income-support benefits law, areas of law that attract significant numbers of paralegals.

Tribunals have been at the forefront of meaningful access to justice and I do not think there is much for tribunals to learn from the courts on this front. I do find it perplexing that courts have been seemingly reluctant to learn from the successes and mistakes of tribunals. I think it is the equivalent of realizing that perhaps your little brother or little sister might have something to teach you – a bit humbling. The article by M. Jerry McHale (“Legal Culture as the Key to Affordable Access”) highlights this in his discussion of the flawed use of mediation in the courts. He notes that mediation usually occurs too late in the process – after the parties have expended significant resources and have become entrenched in their views. Tribunals have been offering mediation of disputes at the front-end of the dispute resolution process for decades, mostly with significant success.

Mr. McHale does highlight one of the key obstacles to improving access to justice that will resonate with adjudicators interested in the potential of active adjudication for improving access to justice: the internal culture and mindset of the people who work in the justice system (lawyers, paralegals, judges). He recounts the many failed (or less than successful) reform initiatives over the years and concludes that we need more than rule changes and additional funding. His call for a new spirit in reform initiatives that embraces new attitudes, new ways of thinking and new behaviours is an important one for those of us interested in access to justice. His article outlines the barriers to meaningful change in the delivery of justice services. I think the most challenging barrier is that of (legal) cultural resistance. He notes that even with a myriad of rule changes, there has been little impact of these changes on litigation practice. That is because litigation continues to be informed by older attitudes and traditional beliefs about litigation and judging. He provides a useful list of many of those beliefs:

  • The belief that more process is a guarantee of more fairness
  • The assumption that litigation is the one-size-fits-all process appropriate for every dispute
  • The practice of managing every case as if it will ultimately be decided by a judge at trial
  • The belief that the only proper advocacy is zealous advocacy
  • The exploitation of court rules to play labour-intensive litigation games
  • The pre-trial focus on winning skirmishes rather than solving problems
  • The neglect of the principle of proportionality
  • The convention of the judge as umpire presiding above the fray while counsel make their case as they see fit.

Adjudicators will recognize many of these beliefs as barriers to effective reform initiatives in the tribunal setting. I would argue that tribunals have made more advances than courts, however, in countering some of these values. Active adjudication is one tool that has been used productively by tribunals in improving access to justice, as well as addressing delays to access to justice. But Mr. McHale’s general point about the need for significant changes to legal culture until it “achieves a much deeper and more sophisticated alignment with reform goals”, is a valid one. His vision of the depth of that culture change is daunting – but achievable:

…Such alignment would demand the creation of a true multi-option civil justice system where disputes are seen as problems to be solved, not battles to be won, and where cases are managed to settlement, not trial. It would presume that lawyers were prepared to default to consensus-based resolution processes and would have the knowledge and skills necessary to collaborate effectively in all contexts, including litigation. It would not require the abandonment of adversarial processes, skills, or values, but it would require that they be employed only when necessary and not as a matter of course in every dispute.

This brief summary has not done justice to this article by Mr. McHale. I highly recommend it for those interested in the thorny problem of legal cultural resistance to reforms in any dispute resolution setting. I think a more meaningful dialogue between tribunals and courts would be a good start to mapping out how to encourage the necessary cultural change – many tribunals have been chipping away at some of these entrenched legal beliefs, through the pervasive use of mediation, the use of active adjudication tools, as well as the use of alternative models of dispute resolution, including online dispute resolution.

This book is a useful resource on the costs of justice and also lays out some of the challenges in achieving meaningful access to justice. If it inspires those in the civil and family law litigation worlds to look at administrative tribunals for ideas and assistance in addressing the barriers to access to justice, it will have served a larger purpose.

Comments

  1. I spotted something on twitter about this book two weeks ago and briefly commented on slaw about it – in the last comment to the column at http://www.slaw.ca/2020/12/08/name-calling-aside-the-problem-with-the-unrepresented-vs-self-represented-distinction/.

    I cannot accept Mr. Mackenzie’s claim that the courts have anything positive to learn from the tribunals. They’ve learned and they continue to learn from each other, and that to a large degree explains the A2J problem. Here’s my layman’s short version of the story.

    The system run by lawyers began to develop in Europe roughly around eight hundred years ago. The “court” then was the King’s court and a great deal was borrowed from the church, which explains, among other things, the historic (and still not entirely purged) reliance on Latin. Skip forward to the 19th Century. In the U.K. there is the tradition of the common law – “judge made law”, but there is also more and more law created by Parliament. So today in Canada we have common law and statutory law. Administrative tribunals first started to appear in the 19th Century. They are all children of statutory law. For a long time, it is claimed anyway, the courts looked down on the tribunals, and gave them minimal “deference” in judicial review. But that changed over time, to the point where the degree of deference was such that it was virtually pointless to try to challenge a tribunal in court. It is now claimed that Vavilov portends a reversal of that trend. We’ll see.

    The courts and tribunals are not two separate communities. Tribunal adjudicators become judges. Judges retire and resume careers as counsel, free to participate if they wish in the tribunal world. What I personally saw when I sought judicial review looked like a veritable love-in. So I’m a bit sceptical that Vavilov is going to change that. The tribunals are not models of efficiency, transparency or anything else laudable. Nominally they look more “accessible”, which is why they draw so many “complainants”. But by the simple means of talking to a representative set of those complainants you could easily confirm what I say.

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