You Can’t Have It Both Ways

Either limit the regulatory monopoly or provide for the efficient and effective delivery of legal services for all legal problems

Access to justice and legal services is a central challenge both for society and for the legal profession. The extent to which members of the public are unserved, under-served or inefficiently served is a difficult issue for lawyers being both a challenge to existing practice and an opportunity for innovation.

As suggested in earlier columns, it seems to me that this access question raises central ethical questions. If there are some legal services which are not provided by lawyers[i], how can the current regulatory restrictions be justified for those services. If there are some legal services that can be effectively and properly be provided in other ways, how can current regulatory prohibitions against other means of legal service delivery be justified.

Broadly speaking, there are three potential supply-side policy responses[ii] that arise when one examines unmet legal needs. The first is now of long-standing. It is clear that a fully trained lawyer is not necessarily required for the effective and proper delivery of all legal services. Whether by expansion of paralegal scope of practice or by introducing new types of paraprofessionals, this is one of the tools to consider. The second is the controversial topic of alternative business structures which is essentially about accessing new resources, financial capital as well as business and technological, to develop new ways of providing legal services beyond the small professional consultancy model. The third is not yet well understood. If we cannot find ways to effectively have regulated lawyers, paralegals or alternative providers deliver legal services in some areas, there can be no justification for prohibiting anyone but licensees from servicing those areas.

There are two different area of demand side perspectives to consider. The first is areas of demand that are currently served by lawyers and paralegals. The second is areas of demand that are currently unserved or underserved. The point of this column is to help better understand the second by reference to a recently released study.

In 2013, the UK Legal Services Research Centre released a report entitled Civil Justice in England and Wales. There are many points of interest but I only propose to highlight a few.

The first is that the study found that many “justiciable” problems are not seen by the public as being “legal” problems. To quote the report:

Just over 10 per cent of problems reported through the 2010 CSJPS were characterised by respondents as “legal‟ (despite all problems involving justiciable issues), with 45 per cent being put down to “bad luck‟ or “part of life‟. Almost a third of respondents had no understanding of their rights at the time they first experienced problems, with a further one fifth having only a partial understanding.

Obviously, if someone does not even understand that a justiciable problem is legal in nature then legal assistance will not be sought. This practical observation is reflected in the further observation that:

Respondents sought advice for their problems from a wide range of advisers. Solicitors were the most commonly used source of advice – although Citizens Advice Bureaux, local councils and the police were also frequently used. Use of the Internet for advice seeking was observed to have increased still further to 24 per cent of problems. This continued the upward trend from 19 per cent in wave 1, 16 per cent in the 2006-9 CSJS, and just 4 per cent in the 2001 CSJS. The manner of conclusion of problems was, unsurprisingly, related to problem resolution strategy. For example, those who obtained advice were more likely to see their problem conclude through a formal process.

While it is perhaps reassuring that solicitors were the most common advisors for legal problems, the explosion of using the internet for advise seeking is noteworthy. But the limited use of legal advice is also significant. For those who sought advice in respect of justiciable issues, 25.9% sought advice from a barrister or solicitor. A broad range of other non-legal advisors also provided assistance.

This UK research helps us better understand similar Canadian research. In 2009, the Federal Department of Justice released The Legal Problems of Everyday Life. This report helps us explore the nature of justiciable problems experienced in Canada. The following chart from The Legal Problems of Everyday Life shows both the nature of justiciable problems and the those that cause problems for the public

Problem Type Number of
Problems Overall
Number of Problems
That Made Daily Life
Per Cent
Consumer 1,480 639 43.2%
Employment 1,421 978 68.8%
Debt 1,444 721 49.9%
Social Assistance 49 38 77.6%
Disability Pensions 48 43 89.6%
Housing 95 65 68.4%
Immigration 35 29 82.9%
Discrimination 91 64 70.3%
Police Action 103 59 57.3%
Family: Relationship Breakdown 224 208 85.2%
Other Family Law Problems 68 63 92.6%
Wills and Powers of Attorney 330 228 79.0%
Personal Injury 161 136 88.9%
Hospital Treatment
and Release
86 69 84.1%
Threat of Legal Action 51 29 65.9%
Total 5,655 3,369 59.6%


The Legal Problems of Everyday Life (at p. 56) is the source of the information noted in an earlier column that legal assistance is sought for only 11.7% of justiciable problems.

By contrast, 16.5% of those surveyed took no action at all but for a reason, 22.1% sought assistance but not legal assistance and 44.0% handled the problem on their own. Only 5.7% took no action because they felt that the problem wasn’t important enough.

The analysis of the use of non-legal assistance to address justiciable problems is interesting:

Understandably, respondents experiencing problems involving the threat of legal action were least likely to use a non-legal source of assistance, 9.8 per cent …. On the other hand, respondents experiencing a personal injury problem were most likely to consult a non-legal source of assistance, 42.2 per cent of all people experiencing a problem of that type …. Employment, 35.8 per cent …, housing, 33.7 per cent … and problems related to disability benefits, 33.3 per cent … are other areas in which respondents were relatively highly likely to resort to non-legal sources of assistance. It is particularly interesting that 35.8 pre cent … of respondents who experienced a problem related to wills and powers of attorney said they used some form of non-legal assistance. This is a problem area that would seem to be pre-eminently within the legal domain.

It is noteworthy that people with personal injury problems and problems relating to wills and powers of attorney are particularly likely to seek non-legal advice. It is less surprising that employment, housing and disability benefit problems are relatively likely to be addressed with non-legal assistance.

For the 16.5% who did not address their justiciable problem (and did not seek any assistance yet thought their problem important), approximately one-third thought that there was nothing that could be done, approximately 10% were uncertain of their rights and approximately 10% thought that taking action would take too much time.

In 2010, the Ontario Civil Legal Needs Project released its report Listening to Ontarians. This study proceeded on a different basis than the two studies previously mentioned. Rather than examining all justiciable problems (whether or not understood as legal problems), the Ontario Civil Legal Needs Project considered what Ontarians understood to be a “civil legal problem or issue”[iii]. As the report put it:

Our survey indicated that 35 per cent of low and middle-income Ontarians said they had experienced a civil legal problem or issue in the last three years. People mentioned a broad range of problems or issues that caused them or someone in their household to need legal assistance, including problems with a family relationship, wills and powers of attorney, real estate transactions, housing or land, employment, personal injury, money or debt, legal actions, disability-related issues, traffic offences, immigration, and small or personal business issues.

Yet even where a legal problem or issue was recognized as such, approximately 30% did not obtain legal assistance and

One in three respondents among low and middle-class Ontarians said they prefer to resolve their legal needs by themselves with legal advice, but not necessarily with the assistance of a legal professional. Legal advice was sought from a variety of sources, both legal and non-legal. In addition, many civil problems are resolved outside the formal justice system.

What can be taken from all of this is that a very low proportion of justiciable problems are addressed with legal assistance. Non-legal assistance is more common than legal assistance. Justiciable problems are not understood to be legal problems. Even where a problem is understood to be a legal problem, a substantial proportion of the public does not seek legal assistance.

In this context, it is clearly difficult to justify permitting only lawyers (and in Ontario regulated paralegals) to engage “in conduct that involves the application of legal principles and legal judgment with regard to the circumstances or objectives of a person” to quote the Law Society Act (Ontario). If only “legal service providers” are permitted to assist then ways must be found for legal services to be available and desirable. Alternatively, there is no real alternative but to allow others to provide these services.

The choice must ultimately be between limiting, or even ending, the regulatory monopoly and ensuring that services can can actually be delivered within the regulated sphere.


[i] and regulated paralegals in Ontario and notaries in British Columbia

[ii] I examine this issue for the purposes of this column without examining two other hard access questions namely (i) the source of payment for legal services (i.e. legal aid or pre-paid legal insurance) and (ii) the extent to which the complexity of the administration of justice is part of the access problem.

[iii] The Quantitative Report by Environics states at p. 15 that in the survey, “respondents were asked to volunteer the kinds of issues and problems that they had experienced for which they had sought legal assistance or for which they thought legal assistance might have been helpful even though they did not avail themselves of such assistance”.


  1. Law societies’s duty to remedy these figures as to unserviced legal problems. Good column Malcolm. It shows why there is a need for a “family doctor counterpart” in the legal profession, i.e., to provide a comparable sorting, triage, and advice service that: (1) makes sure that all available legal services are used; and, (2) people are aided in their understanding and decision-making as to which of their problems need legal services.

    Everybody, including school children, should be taught to accept the principle that a legal problem under-serviced is as dangerous to one’s ability to function adequately in one’s family and in society as is a medical or health problem.

    But that requires that legal services be affordable, or socialized law. Legal Aid is socialized law. To remedy the unacceptably high percentages of unserviced legal problems, should provincial and territorial governments raise Legal Aid’s availability to the top income levels of the middle class, i.e., to serve most taxpayers?

    Yes they should, if law societies won’t accept the proposition that the duty to make legal services affordable is the law societies’ duty. That is expressly stated in s. 4.2 of Ontario’s Law Society Act:
    “In carrying out its functions, duties and powers under this Act, the Society shall have regard to the following principles:
    (1). The Society has a duty to maintain and advance the cause of justice and the rule of law.
    (2). The Society has a duty to act so as to facilitate access to justice for the people of Ontario.
    (3). The Society has a duty to protect the public interest.
    (4). The Society has a duty to act in a timely, open and efficient manner.
    (5). 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.”

    Those are duties requiring not only that legal services be made affordable, but also facilitated by a “family doctor” type legal service. Then, law societies should advertise to increase awareness of the need for legal services.

    Because of the forces that are greatly increasing the volume of laws and their complexity, people are progressively less able to solve their legal problems by themselves, and are forced to accept law society programs that “cut costs by cutting competence” (e.g., law students, paralegals, self-help, and “unbundling” of legal services). That means that lawyers are needed more than ever before. Therefore, if legal services were affordable, lawyers would have more work than they can handle, and Legal Aid could remain as it is.

    A Law Society of Upper Canada publication states: “Being without a lawyer means being without power in our society.”- a quote from, W.A. Bogart, Frederic H. Zemans & Julia Bass eds., “Access to Justice for a New Century-the Way Forward,” (Law Society of Upper Canada, 2005), “Introduction” at page 12. That quotation should be the theme of Law Society advertising and other forms as to the marketing of legal services.

    — Ken Chasse; more in-depth articles on this subject can be freely downloaded from my SSRN author’s page: .

  2. Greater access to lawyers may well result in… the need for greater access to lawyers.

    Seeing a doctor can in theory reduce complications and reduce the need to see doctors in the future. Treatment e etc. (I say in theory because in practice treatment often requires multiple follow up visits, treatment extends life span which results in more end of life care requirements, and and ‘treating’ diseases many of which are incurable by having everyone sit in the dr.’s office waiting for an antibiotic prescription that will do no good for their virus just provides a convenient way for the virus to spread, but I digress).

    Seeing a lawyer though, will usually result in the need for the other party to also see a lawyer. Instead of one consumer who investigates whether they have a right to a refund on their own, and sees a manager or gives up, there is a demand letter, a review of the demand letter, possible litigation and appeals.

    If a service is paid for or subsidized then people will access it at a greater rate than they would if it wasn’t pair for or subsidized by third parties. This would of course be the point here, as the subsidy is meant to encourage more access to lawyers for problems not currently going through lawyers.

    That means… subsidized lawyers will result in more demand letters, more lawsuits, and more need to review demand letters and defend lawsuits. Good for lawyers, not sure if its good for most people, particularly those who have to pay for the subsidy through higher taxes. And especially for those who have to pay for the subsidy through higher taxes, and don’t fall within the class offered the subsidy.

    Consider also, most of the issues that don’t go through lawyers might be best not going through lawyers. In order to provide effective service a lawyer needs training and experience and basic skills and capabilities. There is a limited supply of individuals with these services (supply), and a given demand for these services (demand). Currently those with high demand for legal services pay sufficiently to acquire a supply of lawyers time. This generally means that lawyers are engaged in matters which are of significant financial or emotional concern to the client, or which are highly technical in nature.

    A proposal to pay more lawyers money to take cases they wouldn’t otherwise take increases and shifts demand, but not supply. If supply is unchanged increasing the pool of fees available for some cases will result in higher fees or declining marginal cases that are currently being taken by lawyers, in order to find more time to take cases that are now paying but were not previously. i.e. for every new case you get access to a lawyer, you will probably be taking away another case.

    A pure subsidy for those who may need lawyers but otherwise couldn’t afford them may have be argued to have greater benefits than the costs identified above. An income and needs tested model could assist those in need. However, the net effect of such a system is to send general tax revenue into lawyers pockets, while providing legal services to a few who might not otherwise have chosen those services. Those individuals, given the choice apriori the recognized legal need, would likely have preferred a more general form of income redistribution, and this would be more effecient from an administrative viewpoint as well. (i.e. rather than giving 5 people in a low income bracket the chance to get $1000 dollars worth of lawyers time if they need it, and assuming a 20% chance that they will, you could instead give each person $200 dollars in cash (plus whatever administrative costs choosing the person and the lawyer and the fee would involve). At least 4 of the 5 would be happier with this result in the end with this approach.

    Rather than a general fee subsidy, consider allowing/encouraging legal insurance, so that individuals could choose whether to risk life without a lawyer, or otherwise. Consider also increasing supply. Reduce barriers to legal education, consider allowing focused/tracked based school programs (lawyers qualified to practice in one area but not others, in exchange for faster and cheaper routes to qualification), early specialization (barrister vs. solicitor and civil vs criminal at a minimum), and yes, an increased roll for paralegals and others who can provide legal services at a reduce rate, which may be all that most legal issued justify.

  3. “If we cannot find ways to effectively have regulated lawyers, paralegals or alternative providers deliver legal services in some areas, there can be no justification for prohibiting anyone but licensees from servicing those areas.”

    This issue is ultimately going to be sorted out in the courtroom. I hope to take an initial stab at it shortly in a judicial review matter to which the Law Society of B.C. has already formally responded [] and that I anticipate will likely be heard in September.

    I’ve had more than enough experience as a self-represented litigant contending with what I perceive as a hostile bar and bench. This time my role is being characterized as that of a “lay advocate” and the Law Society is asking the court to refuse to deny me that role and additionally to award it “special costs”. This situation classically illustrates the unreasonable lengths to which the legal establishment will go to defend its ground.

    I would suggest that the question of the legitimacy of the legal monopoly is itself a justiciable one, and I believe that ultimately it will be settled in favour of the rule of law and the public interest.

  4. A stimulating column that has attracted some useful additional thoughts, thanks.

    Mr Mercer says he has avoided asking, for present purposes, “the extent to which the complexity of the administration of justice is part of the access problem.” One should also consider, for completeness, the extent to which the law itself is part of the access problem. How many of the people with justiciable issues not recognized as such would have recognized them if the law had been clearer? How many might have found resources to resolve them rather than giving up without trying?

    I am talking principally of substantive law rules that are archaic, unfair or just unsuited to our times. One could think as well of the drafting of our older statutes – say the 19th century codifications of 18th or earlier century rules. They are very hard even for lawyers to read.

    Current statutes are generally well drafted and as easy to read as their subject-matter permits, though the desire (by the political folks, not by the drafters) to satisfy a diverse set of interests can lead to complexity and difficulty in comprehension.

    Law reform contributes to access to justice by fighting these problems.

  5. It seems to me that in framing the problem in this way, the legal profession is treading down a very dangerous path. To quote from the 2013 UK Legal Services Research Centre “Civil Justice in England and Wales” report, the definition of “justiciable problem” that they use is:

    “Justiciable problems are problems of everyday life, often linked to social exclusion, which may have legal aspects and potential legal solutions.”

    The only operative words in that sentence are “may” and “potential”. Unless I’ve forgotten how the English language works, the definition means that literally every single event which occurs in someone’s life is a “justiciable” problem and is therefore the appropriate subject of the attention of the legal profession and the courts. It should go without saying, but that way lies madness.

  6. Steven Frenette

    Having taken a cursory look at the DOJ’s study, I agree with Bob’s criticism and in fact, given the generality of the questions put forward as to what constitutes a “justiciable” problem, I’m actually impressed (in a positive sense) that only 44.6% of respondents report experiencing an issue in the three years prior to the study.

    For instance, the consumer section of the questionnaire featured such questions as whether you had “Paid for a service (such as a moving company, a health club or tax preparation) then found out you didn’t get what you paid for or the service was poor and the service provider would not make things right.” One would expect a large segment of the population to confirm experiencing problems of this nature, although it would only be in rare circumstances that the issue would be important enough to require legal services.

    As expected, it’s revealed in the report that the median value of the consumer services from which issues arose was $500. At this level not only are we talking about involvement of lawyers being economically out of reach; we’re talking about involvement of any paraprofessional whatsoever being too costly. This same issue presumably arises from any number of the issues that were probed, such as refusal of welfare benefits or eviction from a residential unit.

    That’s not to say that nothing should be done about small injustices, but we have to at least be honest that there’s no money in representing people for the majority of these issues, and any realistic approach will likely have to involve some form of self-service.

    Non-lawyer service providers should definitely be a part of the access to justice arsenal, but the reality is they’re already being implemented fairly extensively in many practices, where non-lawyer employees outnumber lawyers and cover most of the administrative legwork. I expect that only marginal gains would be made by allowing untrained individuals to freelance, so to speak, and it would come with a whole host liability issues.

    I suspect that the real heavy lifting in enhancing access to justice is a matter of procedural reform — specialized decision-making bodies with extremely simplified procedural rules for specific civil law issues (something that actually already exists in certain areas such as Landlord/Tenant, but could be further improved upon), wider permissions for over-the-counter motions, fewer unnecessary court appearances, fewer procedurally-mandated appearances (e.g., going from a Case Conference to a Settlement Conference to a Trial Management Conference, and possibly further, before you can get to a family law trial), and so on. Reform on this front could make lawyers largely unnecessary for common problems, and on the occasions that they are necessary, it could at least make them somewhat less expensive.

  7. Couple of comments – with the greatest of respect – as I know, Malcolm, you like I are doing our best with our respective Law Societies to assist the public in this very difficult area of A2J.

    Several years ago the Law Society of Alberta undertook a relatively broad Ipsos census relating to the delivery of legal service. Some very interesting information came forth.

    First, most people actually have no difficulty in paying lawyer for basic services – real estate, wills, etc.. the problem, clearly, in the A2J field relates to trial work – not general legal advice and support.

    Places like CANLII (paid for by lawyers, btw) do a pretty good job of making the “law” accessible to the public to allow for a “basic understanding” – and to the extent they do not, obtaining general legal advice is not a massive burden for most Canadians. Because even $500 for an hour’s worth of advice will not be a massive burden to most Canadians – and will give them the understanding of where they stand respecting their issue. What IS a massive burden is carrying on a trial with a lawyer in tow.

    This is the core of the A2J problem, IMHO:

    “I can tell you what’s wrong, but if you want me to fix it, well, it will cost you perhaps $50,000.00 or more, and at the end of the day, I can’t tell you, for sure, if it will be any better than it is now.”

    Now then.

    Will paralegals resolve that issue? I don’t think so. Even for relatively minor legal matters (uncontested divorce for example) the cost differential is not massive between lawyers and paralegals (another interesting result of our Ipsos survey).

    So – getting to the nub of the issue – will broadening the field of delivery be of more assistance than harm?

    Firstly – I’m doubting a lot of paralegals will want to run a 5 day trial against a lawyer – so availability will still be an issue.

    Secondly – if they do, they won’t do it for free, and if they do the research and preparation required to do the job properly, one might reasonably wonder just how much savings there will be for the client.

    Finally – the biggest question – what is the risk, then, to the litigant?

    Paralegals, to a great extent, are unlicensed, and uninsured. To provide the public the same protections, will be an issue – or will at least be a problem – either choosing to work “without a net” or the safety net imposed (insurance and regulation), will then, add increased cost to the delivery (as it does with lawyers).

    And the final, and I think most difficult question.

    Best illustrated by an analogy.

    Our health care system is broken and risking failure because of rising costs and lack of available doctors.

    Should we consider allowing untrained “paradoctors” to perform surgery in our hospitals? Or, should we set up “self-help” kiosks at hospitals showing people how to treat their own injuries and illnesses – and then let them in the operating room?

    Granted the analogy is not exactly the same – but – legal service is neither simple nor of trivial impact upon the client. Inherent in much of our A2J discussion is a not-so-thinly-veiled implication that we can make the law simple and easy. And we, as lawyers, know it isn’t and can’t be – that the law is, more and more – complex and of significant impact upon our citizens.

    So – one might reasonably question just how much assistance broadening the field of delivery will be.

    In Alberta, for the most part, short of non-lawyers going to Court, we have chosen not to enforce our “monopoly”. We have approximately 1,000 or more unlicensed “legal service” sources in Alberta – and our approach has been to a great extent to allow the market to dictate service.

    And it hasn’t come close to solving the problem.

    So – while one response might be “educate the public of the differences between lawyers and non-lawyers, and allow them to choose” – which, more or less, is what we’re going in Alberta – it is highly doubtful that the weakening of the so-called “monopoly” is going to have any significance on the core problem of litigation costs.

    And that is a complicated issue.

    Lawyers, Legislators, Judges and the public themselves all have a share of the blame.. but, no offense, the suggestion that expanding the role of paralegal delivery will make trials fundamentally less expensive, is just wishful thinking.

    My two cents – and a comment I’ve made many times.. we have a problem with disproportionate delivery of service resulting from the paternalistic approach to legal service delivery mandated by our Courts and our regulators. Lawyers have a “duty” to make all inquiry and all efforts to assert all reasonable claims, to “turn over every stone” so to speak, failing which, they are at risk of censure by their regulator and the courts in a civil action.

    We are keenly conditioned to be “risk-adverse”.

    Perhaps the time has come to allow the lawyer, with proper documentation – to allow the client to dictate the level of delivery desired – “Do you want me to research the law or rely upon my general understanding?” “Do you want me to obtain copies of financial records behind the financial statements or rely upon the statements as presented?” “Do you want me to do some due diligence regarding the fairness of your agreement, or do you just want me to explain what this agreement means.”

    And – while we’re at it – I agree Malcolm, let the client decide “Do I want advice from a lawyer, from a trained paralegal, or from my cousin’s husband who used to be an RCMP officer?”

    Show the public the respect to make their own decisions on delivery and level of service – and allow them the right to make bad decisions. I mean, being a divorce lawyer, as bad as the outcome of divorce can be – the real problem was the decision that went into getting into the relationship in the first place – and no one suggests we start regulating how and who we can marry.

  8. Julie Macfarlane

    This is a great chain and there are many things to say here. I am going to confine myself to a couple of observations:
    1. There is a big $$$ distance between getting basic legal assistance ($500) and going to trial ($50,000). But there is a lot of space in between that people need help with. Many SRLs can afford some basic legal orientation but they also need and want procedural assistance short of a trial. Assistance by trained and experienced “others” (the ubiquitous “non-lawyer”) could fill the large distance between basic legal orientation (for $500) and trial. This is where most SRLs need help.
    2. We need to take a long hard look at what tasks require the skills and qualifications of a lawyer (for example, some would say, conducting a trial – but what else?) and which tasks can be efficiently carried out by a para-legal or non-lawyer. None of our Law Societies has done this research/ evaluation yet and it is crying out for systematic attention.
    3. To confront our A2J crisis, we have to be willing to relax our tight grip on some of the cultural fetishes of lawyering. These include (from the insights in this chain): describing everything as “justicable” (this always leaves me wondering, “and so…?”) – lawyer/client paternalism (SRLs are savvy shoppers) – lawyer overkill (leave no stone unturned) – and a general obsession with preparing every case for trial even though we know that less than 10% will actually end up there.

  9. 1. I don’t rely on law society surveys as to the affordability of legal services. Prefer surveys without biased sponsors.
    2. Here are the authorities that support the statement that the majority of the population cannot obtain legal services at reasonable cost:
    (1) Report of the Legal Aid Review 2008, at 76-77, being the report of University of Toronto, Faculty of Law, law and economics professor, Michael Trebilcock, to the Attorney General of Ontario, on July 25, 2008 (“the Trebilcock report”); online:
    or, ;
    (2) Noel Semple, “Access to Justice through Regulatory Reform” (a paper prepared for the National Family Law Program, July 16, 2012; electronic copy available online at: ). Dr. Semple is a postdoctoral research fellow, Centre for the Legal Profession, University of Toronto Faculty of law. At p. 3 he states: “Although comprehensive and reliable data about the cost of Canadian legal services is not available, the information that is available makes it clear that prices are high enough to deter many potential clients. According to the Canadian Lawyer 2012 survey of hourly rates, the average for a Canadian lawyer with 10 years’ experience was $340 per hour. The average legal fee for a contested divorce was $15,570. Given that the median income for a single Canadian is less than $30,000 per year, the potential for these legal fees to deter Canadians is obvious.” (Therein text accompanying notes 13 and 14 [quoting from, Robert Todd, “The Going Rate” Canadian Lawyer (June, 2012) therein at page 32 at pp. 37 and 34].
    (3) Michael Trebilcock, Anthony Duggan, and Lorne Sossin (eds.), “Middle Income Access to Justice” (University of Toronto Press, 2012), the “Introduction” states in part (p. 4): “For our purposes, when we refer to middle income earners, we are contemplating the large group of individuals whose household income is too high to allow them to qualify for legal aid, but too low, in many cases, for them to be in a position to hire legal counsel to represent them in a civil law matter. As a result of this denial of effective access to justice, we are witnessing a staggering number of individuals trying to navigate an increasingly complex civil justice system without any or adequate legal assistance and feeling increasingly alienated from the legal system. This is the crisis of access to civil justice that we face. … One of the findings in this review [the Trebilcock report] was an acute lack of access to civil justice for lower and middle income earners in Ontario, manifesting itself particularly in an increasing number of unrepresented litigants.”
    (4) Reports, dated May 2012, of the Action Committee on Access to Justice in Civil and Family Matters, recommending that legal services be provided by non-lawyer professionals who provide related services: Report of the Access to Legal Services Working Group; and, Report of the Court Processes Simplification Working Group. Available online: . The Action Committee is part of the Canadian Forum on Civil Justice at York University in Toronto, where it is affiliated with the Osgoode Hall Law School and the York Centre for Public Policy and Law. See the Canadian Forum on Civil Justice website; online at: . But treating the problem of unrepresented litigants and clogged courts by simplifying court processes and procedures is like trying to remedy a cold by blowing your nose to simplify the act of breathing. It’s treating the symptoms and not the cause. However, I’m not saying that blowing your nose should not be done.
    (5) Rachel Birnbaum, Nicholas Bala, and Lorne Bertrand, “The Rise of Self-Representation in Canada’s Family Courts: The Complex Picture Revealed in Surveys of Judges, Lawyers and Litigants” (2012), 91 Canadian Bar Review 67, at 71, 92, and 94.
    (6) Canadian Bar Association, “Reaching equal justice: an invitation to envision and act”-A summary report by the CBA Access to Justice Committee, August 2013; online: .
    (7) Gillian K. Hadfield “The Cost of Law: Promoting Access to Justice through the (Un)Corporate Practice of Law” International Review of Law and Economics (forthcoming); download copy available at: SSRN
    (8) View the video of the University of Toronto, Faculty of Law’s Access to Civil Justice Colloquium, on Feb. 10, 2011; online: . It provides seeing and hearing the Chief Justice of Canada, Beverley McLachlin, as the keynote speaker (introduced by Ontario’s Attorney General, Chris Bentley). She has spoken publicly “off the bench,” several times on this topic–the legal profession has a monopoly over the provision of legal services, therefore it has a duty to make legal services available at reasonable cost.
    (9) Beverley McLachlin C.J.C., 21st Century Justice, Remarks to the Probus Club, Vancouver, Feb. 26, 2013, p. 9: “In some courts, up to 40% of the cases involve self-represented litigants.”; citing: Andre Gallant, “The Tax Court’s Informal Procedure and Self-Represented Litigants: Problems and Solutions” (2005), 53 Canadian Tax Journal 2; and, Anne-Marie Langan, “Threatening the Balance of the Scales of Justice: Unrepresented Litigants in the Family Courts of Ontario” (2005), 30 Queen’s L.J. 825, “the author cites data compiled by the Ontario Ministry of the Attorney General, which show that in 2003, 43.2 percent of applicants in the Family Court Division of the Ontario Court of Justice were not represented by counsel when they first filed with the court. The average percentage of unrepresented litigants in Ontario family courts between 1998 and 2003 was 46 percent.” Online at: .
    (10) Osgoode Hall Law School at York University (Toronto) Professor John McCamus, Chair of the Board of Directors of Legal Aid Ontario, stated on July 3, 2013, that he is aware that the majority of Canadians cannot afford a lawyer, and that the income ceiling to qualify for a legal aid certificate in Ontario was $10,800, and the threshold for a single parent with one child was $18,000; online: . Professor McCamus is the author of the 1997 “Report of the Ontario Legal Aid Review-A Blueprint for Publicly Funded Legal Services,” recommendation 79 of which states that, “governance of the legal aid system in Ontario should be transferred from the Law Society to an independent statutory agency.” That recommendation was implement in the Legal Aid Services Act, S.O. 1998, c. 26, s. 3(1) of which states: “A corporation without share capital is established under the name Legal Aid Ontario in English and Aide juridique Ontario in French.” Professor McCamus, has served as the Chair of Legal Aid Ontario’s (LAO’s) Board of Directors since 2007. See public information statements about LAO, provided by Professor McCamus at (1): ; and, (2)>.
    (11) the May 15, 2013, Toronto Star newspaper article about the “broken justice system,” entitled, “Do-it-yourself-law—a trickle becomes a deluge,” dealing with the National Self-Represented Litigants Research Study (2013) conducted by University of Windsor law Professor Julie Macfarlane online: . And in the LAO blog issue for Jan. 22, 2014, see Dr. MacFarlane’s photo and article, “Fire in the hole: Why every lawyer needs to care about access to Justice.”

    3. The alarmingly high percentages of self-represented litigants, show that law societies are to blame for doing nothing about the problem for decades. Part of the reason is the traditional view that legal fees are to be set in private conversation between lawyer and client. It’s no longer a tenable view. The legal profession’s monopoly over the provision of legal services generates 3 duties–be proactive so as to bring about, competent, ethically provided, and affordable legal services. Canada’s law societies have failed to perform that third duty, and show no signs of accepting that duty as theirs to perform. In fact, the Federation of Law Societies of Canada’s text, “Inventory of Access to Legal Services Initiatives of the Law Societies of Canada” (Sept. 2012; FLSC website), refers to the problem as being merely, “gaps in access to legal services… .” Therefore a different management structure needs to be imposed upon our law societies, or their powers to regulate the legal profession be transferred to an independent agency. How else will young lawyers and future generations of lawyers cut their losses–continuing and greater losses of clients due to the unaffordability of legal services?

    4. The recommendation in a comment above, that costs be cut by allowing clients to choose how much legal research, and other preparatory services they want to pay for, justifies incompetence, which is unjustifiable. And it undermines the lawyer’s duty to help the judge reach the right decision. Should doctors allow patients to choose how to provide medical services and treatments? (But ironically, allowing clients to choose how many records they will pay to have “reviewed” for purposes of electronic discovery production is where this A2J problem is heading.) The solution for solving the prohibitively high cost of the “review” stage of electronic discovery–see my Slaw post for April 17, 2014.)

    5. Procedural reform is not the solution. The law has to be as complicated as the technology, rights & freedoms, access to justice, and causes of action & defences, it seeks to regulate. Even if procedural law doesn’t have to be as complicated, that doesn’t solve the need for substantive law’s complexity. Increasing complexity means a decreasing ability to solve legal problems without a lawyer. Therefore, if legal services were affordable, lawyers would have more work than they could handle. Law societies would be asking law schools to increase their student bodies instead of asking for decreases.

    6. Arguing that increasing the availability and affordability of lawyers will merely increase the demand for legal services, is like saying feeding starving people will merely increase the demand for food, therefore don’t do it. Buffet restaurants do well because our stomachs and our gluttony have affordable limits. Similarly, lawyers’ services are not chosen as sources of pleasure and entertainment. (Albeit, sometimes that is the unexpected result.)

    7. The legal profession’s monopoly over the provision of legal services requires that it provide all legal services needed. The answer is to satisfy that need, rather than perpetuating “two tier justice” by leaving legal services affordable only for the rich and those obtaining Legal Aid certificates. When this situation is declared unconstitutional, that will provide the basis for making law societies pay for the legal services that people cannot afford (except for Legal Aid’s very limited availability). Only then will law societies feel enough motivation to create the necessary solution, such as enabling CanLII to provide the legal services to lawyers that LAO LAW provides. See my SLAW post of Oct. 24, 2013.

    This comment is confidently and precisely stated because I am the only lawyer in Canada who has had the opportunity to go beyond making recommendations, to the trial-and-error learning necessary for creating successful solutions for the affordability of legal services problem. Any dedicated lawyer who had had the same opportunity, would make the same recommendations. Unfortunately our law society Benchers have not had that opportunity to learn– Ken Chasse, member LSUC (since 1966); LSBC (since 1978).