A Call to Arms and More Ikea Monkeys

Short of a historic influx of legal aid funding to pave the way forward, any trans-Canada highway to equal justice must be cobbled together piece by piece, steppingstone by steppingstone. Progress is likely to be slow and painstaking, but should eventually come from a mix of incremental enhancements and bold reforms. In the spirit of resolute movement forward, I offer two ideas imported from the old world—one relatively challenging and the other relatively mundane—for balancing the scales of justice for Canadian civil and family litigants:

1. embrace the civil law principle of equality of arms; and
2. introduce legislation permitting pro bono cost orders.

Originating from the “right to a fair trial” provisions in Article 6 of the European Convention on Human Rights, the modern principle of equality of arms seeks to ensure that each individual litigant is provided reasonable opportunity to present his/her case under conditions that do not place him/her at a substantial disadvantage to another. The Human Rights Act 1998 allows UK domestic courts to remedy breaches of Convention rights. On several occasions, UK judges have interpreted Article 6 and the principle of equality of arms as granting the court jurisdiction to assign civil legal aid to an individual litigant when it is necessary for a fair trial. Judicial considerations include the importance of the right in question (privacy is accorded less value than spousal support, for example), the complexity of the proceedings, and the ability of the court to compensate for disadvantages faced by the self-represented litigant.

In a Bizarro World approach to achieving equality of arms, some Canadian jurisdictions look to balance the scales of civil justice by simply removing legal counsel from the equation. BC’s new Civil Resolution Tribunal Act, for example, has a general rule that parties must represent themselves in hearings. Though it does make allowance for legal representation in cases where a party is a child or has “impaired capacity”, the Act arguably entrenches power imbalances between litigants, and increases the likelihood of coerced resolutions. It also bets on somehow gaining time efficiency from proceedings involving two self-represented parties.

If the positive principle of equality of arms is preferred for increasing equal access to justice in Canada, there is no simple argument for invoking it as a constitutional right. There are rough equivalents to the “right to a fair trial” provisions of Article 6 of the Convention in sections 7 and 15 of the Charter of Rights and Freedoms, but attempts to establish a positive right to legal counsel on those and other grounds failed in British Columbia (Attorney General) v. Christie, 2007 SCC 21 and Canadian Bar Assn. v. British Columbia, 2008 BCCA 92. While both courts ruled out a broad-based systemic claim to greater legal services based on unwritten constitution principles, they left the door open to individuals successfully arguing a right to legal counsel in the same constitutional vein. With judicial rhetoric ramping up on the subject of equal access to justice, the time may be ripe for an individual assertion of the right to legal counsel based on a Canadian version of the principle of equality of arms.

A more manageable and much less glorious strategy for enabling equal access to justice involves the legislation of pro bono cost orders. Unlegislated pro bono cost orders are somewhat rare and underutilized. Still, one such order made national headlines this January when an Ontario Superior Court judge ordered the former owner of the Ikea Monkey to pay $83,000 in costs to the defendant primate sanctuary where the monkey now resides. The sanctuary was represented by pro bono counsel, and the judge held that pro bono cost orders discourage abuse of the justice system and increase access to justice by promoting pro bono representation.

Canadian judges have historically shied away from ordering pro bono costs on the view that a litigant who is represented on a pro bono basis incurs no legal costs or disbursements in the course of the litigation, and therefore has no loss to be indemnified. But this line of reasoning compounds the inequality between parties who can afford to pay legal fees and those who cannot; the better-resourced party has the unfair advantage of litigating without the normal risk of paying the other party’s costs.

To help level the playing field for pro bono clients, England and Wales introduced legislative amendments in 2008 to explicitly encourage pro bono cost orders. There, pro bono costs reflect the financial value of the free legal help, with the amount being based on what a paying client would have recovered. The costs cover any period when free representation was provided and even if only one of the lawyers acted for free (i.e., normal costs can also be sought for fee-paid work). The losing party is required to pay the pro bono costs to a prescribed charity that provides free legal services to those in need. Recognizing the rarity of a new legal funding source, the Law Society of BC has supported pro bono cost orders being legislated in BC.

Neither of the above concepts are game-changers. If they ever amount to anything, it may only be busy work until the next big idea comes around. But it’s a long march to equal justice and any amount of forward progress is at least movement in the right direction.

[For more information on the concept of equality of arms, please read this research paper written by law student Tiffany Glover for the Access Pro Bono Society of BC.]