Unaffordable Legal Services Is a Federal Election Issue: A Message to the Candidates

The following national problem should be part of every party’s federal election platform: the majority of the population cannot afford legal services at a reasonable cost—the legal advice of a lawyer is not affordable.

This is the most serious and damaging problem that Canada’s justice system and the legal profession have ever faced.

The abundant in-depth analytical literature provides this definition of the problem: “The majority of the population cannot obtain legal services at reasonable cost.” Or, the legal profession has priced itself beyond the majority of the population.

It is a problem caused by the obsolescence of the method of providing legal services, i.e., the costs of producing legal services are too high, due to a lack of innovation in the methods of doing the work necessary. It is innovation that creates national support services for the production of legal services. Therefore it is a type of innovation that has to be carried out by a national agency, such as Canada’s law societies acting together, collectively. Law firms and lawyers cannot individually bring about the necessary changes in the methods of producing legal services. Their volumes of production are too small and their degrees of specialization are not great enough to produce the necessary cost-efficiency. But Canada’s law societies have not tried to perform this duty, neither individually nor collectively.

This is a national problem that can be solved only by nation-wide action, i.e., by federal government and federal parliamentary action.

“Federal action” is required to create the necessary specialized support services. Just as the Federation of Law Societies of Canada sponsored the creation and maintenance of CanLII (the Canadian Legal Information Institute), a national institute needs to be created that provides the permanent expertise and support services necessary to making legal services adequately affordable. It performs a function comparable to that of a civil service for an elected government. Law society management lacks the expertise, permanent management, and motivation, necessary to solve the problem. Were the situation otherwise, the problem would not exist.

There are 3 sources of legislative jurisdiction for such “national action”:

  1. The “regulation of trade and commerce” power of federal legislative jurisdiction, enables federal legislation and administrative action to be applied to this national problem–see s. 91(2) of The Constitution Act, 1867.
  1. the P.O.G.G. clause (“peace, order, and good government”) of the preamble of s. 91, Constitution Act, 1867-which, per Prof. Peter Hogg (OHLS), Constitutional Law of Canada 5th ed. (Thomson Carswell), is treated as a residual clause, in spite of its wording (“not so as to restrict the generality of the foregoing”) and such “residuals” include, “national action required,” and “emergency matters”;

    Section 91. “Legislative Authority of Parliament of Canada

    It shall be lawful for the Queen, by and with the Advice and Consent of the Senate and House of Commons, to make Laws for the Peace, Order, and good Government of Canada, in relation to all Matters not coming within the Classes of Subjects by this Act assigned exclusively to the Legislatures of the Provinces; and for greater Certainty, but not so as to restrict the Generality of the foregoing Terms of this Section, it is hereby declared that (notwithstanding anything in this Act) the exclusive Legislative Authority of the Parliament of Canada extends to all Matters coming within the Classes of Subjects next hereinafter enumerated; that is to say, … .”

  1. The Canadian Charter of Rights and Freedoms, section 15 equality rights provision.

    “(1) Equality before and under law and equal protection and benefit of law:

    Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

    “(2) Affirmative action programs

    Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.”

    – but …

    Section 1 “reasonable limits” limitation on the scope of rights and freedoms:

    “The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”

The following paragraph provides the conceptual bases for this “equality rights” argument:

The duty to make legal services adequately available should be given constitutional status based upon a Canadian Charter of Rights and Freedoms s. 15 “equality rights” argument that recognizes, “legal services at reasonable cost” as a constitutional right, based upon the principle that being middle class, or of “middle income,” and unable to obtain legal services at reasonable cost, is a state of one’s condition that is “immutable, or changeable only at unacceptable cost to personal identity,” and to one’s ability to invoke constitutional rights and freedoms, and the rule of law. And, Charter arguments need lawyers because they cannot be effectively made without the advice and advocacy of a lawyer. See: Law v. Canada, 1999 CanLII 675, [1999] 1 S.C.R. 497, and progeny.

The factual basis for such “federal action” is that this is a national problem that can be dealt with effectively only by way of national action. Therefore the provincial legislative powers of The Constitution Act, 1867, s. 92(13) “the administration of justice in the province”; and, s. 92(16) “generally all matters of a merely local or private nature in the province”; do not provide a sufficient foundation for effective action.

Canada is a democracy that is heavily dependent upon the rule of law, as guaranteed by the Canadian Charter of Rights and Freedoms. But for people who are not lawyers, they cannot enforce the rule of law, nor the proper functioning of their democracy, without the help of a lawyer. However, for the majority of the population, such legal advice services are too expensive.

Many thousands of lives have been severely damaged because of the unavailability of affordable legal advice services (as distinguished from “routine legal services.”)

Judges have issued warnings that their courts are “grinding to a halt” because of the high percentage of litigants who are unrepresented litigants. Their cases take much longer to go through the courts because they lack the necessary legal training, thus overwhelming courts’ “time and personnel” resources. But no government has taken action to relieve such suffering and damage being caused.

Specifically, no government has held a law society to account for its failure to try to solve the problem. There is no law society program in effect, the purpose of which is to solve the problem. And, there is no law society public declaration that this problem is a law society problem, and it is the law society’s duty in law to solve this problem.

Instead, law societies offer “alternative legal services,” based upon a “cutting costs by cutting competence” strategy. For descriptions of such alternative legal services, see:

Access to Justice: A Critique of the Federation of Law Societies of Canada’s Inventory of Access to Legal Services Initiatives of the Law Societies of Canada” (pdf, 48 pp.).

In effect, Canada’s law societies tell the population that never again will the average taxpayer be able to retain a lawyer at a reasonable cost, to perform all of the work necessary to deal with problems requiring legal advice. Such legal services will remain unaffordable for the majority of the population.

It is the duty of every law society in Canada to regulate the legal profession so as to make legal services adequately available to the population. That duty has three parts: (1) competent legal services; (2) ethically provided legal services; and, (3) provide affordable legal services.

For example, in Ontario:

The duty to make affordable legal services available to the population arises from the law that requires the law societies to regulate the legal profession and the monopoly it has over the provision of legal services. In the province of Ontario, that duty arises from the duties created by the Law Society Act, s. 4.2, which states:

4.2 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.

The major victims of this problem and the suffering it is causing are: (1) Canada’s population; (2) the courts; (3) the legal profession because of its drastic shortage of clients; and, (4) legal aid organizations, because it is now very “politically unwise” for governments to fund legal aid adequately by taking more tax money from taxpayers who pay for the justice system, but who cannot obtain an affordable lawyer to deal with their legal problems.

Law society benchers live off the justice system, paid for by taxpayers, but they don’t provide taxpayers with affordable legal services, because they neglect their duty to do so.

So, why should taxpayers continue to give their respect and tax money to the justice system?

See the following published articles (hyperlinked for quick access pdf copies):

(1) “A2J: Solving the Unaffordable Legal Services Problem by Changing Law Society Management Structure”; published: (1) Canadian Lawyer, posted: August 31, 2015; (2) Slaw, posted September 25, 2015.

(2) “Access to Justice—Unaffordable Legal Services’ Concepts and Solutions;

(3) “A2J: Preventing the Abolition of Law Societies by Curing the Defects in their Management Structure: A Solution to the Unaffordable Legal Services Problem” ;

(4) Alternative Business Structures Proposals or Solving the Unaffordable Legal Services Problem

(5) all of the other “access to justice” (A2J) articles posted on my SSRN author’s page:

Those articles provide an in-depth analysis of the problem, and a solution, and also, access to the in-depth analytical literature on this problem.

Ask all federal election candidates, “what are you and your party doing about this problem and the suffering it is causing?

— Ken Chasse (“Chase”),
member of the Law Society of Upper Canada (since 1966), and
of the Law Society of British Columbia (since 1978).


  1. Ken – I suggest that you reread the Securities reference. The logic of the decision is to completely undermine the analysis from City National Leasing that underlay such dubious federal initiatives as Pipeda.

    There is an argument under the US federal trade and commerce power for seeing legal services as having a national dimension, but in Canada, you’ve almost 150 years of entirely provincial legislative action and a ton of caselaw to overcome.

    All of this is putting to one side the scandalous reality of underserved citizens and underserved communities.

    But ultimately, if any leader were to devote today’s press conference to what my government would pledge to do about access to legal services, it would not shift one constituency.


  2. Ken,
    Virtually everybody who needs legal services for real estate transactions (because you either own or are able to buy an asset worth hundreds of thousands of dollars), wills (because you have assets), powers of attorney (usually ditto), estates (ditto), notarizations, incorporations and small business transactions (because you have the wherewithal to be starting, buying or selling a business) can easily afford the very modest fees charged for those services (fees that are less than and often far, far less than, as applicable, the government charges, the realtor charges, the accountant’s charges, the moving van company, the new appliances, etc. etc. etc.). The tiny few who, for example, need something commissioned or notarized and lack even the $10 to $40 to pay for it are the types of people we solicitors would help pro bono.

    It would be helpful if commentators would make it clear that there is no access to justice problem for those services except at the fringe of the fringe and that the real barrier the public faces is the outrageous and ruinous time and cost of litigation.

    It would also be helpful if commentators would point out that doubling the number of litigation lawyers per capita in 18 years does not bring down the cost of litigation but instead drives it sky high as lawyers try to make a living on half the number of clients, a living that features no benefits and an average retirement age, out of necessity, of 75 years. See the US experience for the miseries caused by the shallow notion that too many lawyers per capita is a good thing. Also note that the number of self-represented litigants has risen in lock-step with the rise in the number of lawyers per capita, and that the increase in the former is the direct result of the increase of the latter. Also note that the blunder that ABS would be would do precisely nothing except worsen the problem. Thank you.

  3. Legal ADVICE services cause the unaffordable legal services problem. That is stated 4 times in my post today. Routine legal services are not the cause of the problem. And it is only routine legal services that the ABS advocates offer to automate. The legal profession can provide the automation for itself, just as it created CanLII for itself, without outside help. But legal advice services cannot be automated. Therefore, the ABS proposals cannot solve the unaffordable legal services problem. That problem requires a change from the present “handcraftsman’s” method to a “support services” method of producing legal advice services.
    For example, no doctor’s office provides all treatments and remedies for all patients the way a lawyer’s office does for all clients. Law firms operate as production units isolated from one another and without reliance on any outside specialized services. That is the method used by cottage industries. As a result, law firms are not sufficiently specialized, nor scaled-up sufficiently in their volumes of production, to be able to provide high quality legal advice services at affordable prices.
    This engineering principle applies: “nothing is as effective at cutting costs as scaling-up the volume of production.”
    LAO LAW, the centralized legal research unit at Legal Aid Ontario (LAO) is the only true support service in the whole of Canada’s legal profession.
    Over 100 years ago, all of competitive manufacturing began moving to a support services method of producing goods and services. As a result, for example, the “auto parts industry” is as big an industry as are the motor vehicle manufacturers themselves. Each “special parts” company makes 100,000 to 1 million units of each special part it manufactures. It has the revenue with which to specialize each factor of production to a much higher degree in regard to what it manufactures, than can the auto manufacturers themselves.
    The solution to such cost vs. price conflicts is to move the inefficient parts of any production process, to a specialized, scaled-up volume method of production. But no law firm is sufficiently specialized or scaled-up in its volume of producing legal advice services to be able to cope with the problem. Even the biggest law firms are collections of small law firms called “practice groups.” Therefore, the economic factors by which they operate are the same as apply to other law firms. Their production is not large enough to create any significant “economies of scale.”
    For example, legal research, as a specialized support service provided by career research lawyers, is a far more competent and cost-efficient way of producing legal opinions than relying of students’ legal research. By its 9th year (1988), LAO LAW was producing over 5,000 legal opinions per year. No law firm produces 5,000 legal services per year, let alone 5,000 of any one legal service.
    A support services method of production means that all factors of production are much more highly specialized than exists in any law firm–specialized lawyers, equipment, materials used, principles of database management, and methods of production, so as to maximize the re-use of previously created work-product. That is the key to making legal advice services affordable, and also provided by way of the highest degree of competence, because of the much higher degree of specialization than now exists in any law firm.
    But the ABS proposals don’t involve a change in the method of producing legal services. Therefore, they cannot solve the problem of the unaffordability of legal advice services. But their purpose is to make money by controlling the legal services market, and not to solve social welfare problems such as the unaffordability legal advice services. ABS investors are not in the social welfare business. They offer nothing that the legal profession cannot do for itself, and do much more effectively.
    So, we shouldn’t give up ownership of our law firms by taking in “another mouth to feed” with profits. Ownership by ABS investors will cause the profit duty to suppress the fiduciary duty. The practice of law is not a business, and business is not the only way to make the production of all legal services as cost-efficient and affordable as needed by the population of Canada.

  4. Simon, thanks for reading me. But in 1930, Lord Sankey cautioned bloggers that, “the B.N.A. Act planted in Canada a living tree capable of growth and expansion within its natural limits.” – Edwards v. A.G. Can. [1930] A.C. 114, 136. And, as did the Privy Council thereafter, that metaphor has been approved by the SCC a number of times, including in regard to the Canadian Charter of Rights and Freedoms s. 8 (search or seizure) in, Hunter v. Southam [1984]2 SCR 145, 155; and also in regard to s. 6 (mobility rights) of the Charter in, LSUC v. Skapinker [1984] 1 SCR 357, 365.

  5. I agree with Simon C on the constitutional issue – but there are provinces, including Ontario, with big enough populations that if there was a solution to the issue, they could do it on their own, or with informal or even formal collaboration with others.

    My question is whether the high cost of litigation services derives from the need for research, or the need for anything that a Legal-Aid-style back office could provide. Is the cost in generating opinions? I would have thought usually not, but maybe those in the trenches can enlighten me.

    My guess would have been that costs come from needing to figure out the facts and how to prove them, chasing witnesses, reading documents and analyzing them for argument, deciding on strategy, all in consultation with the client to some extent (depending on how much the client wants or needs).

    Is a Legal-Aid-style support office cheaper because its people are paid less than junior lawyers and paralegals working for firms? Or because the lawyers in traditional practices simply charge too much because they want to earn too much? In other words, is the cottage industry model sustained because it is more lucrative than a more modern, streamlined or centralized model, rather than because people don’t know how to do the work differently?

    What of the various forms of automation (Watson etc), alternative structures (not ABS but various firm set-ups like Cognition or Practical Law) and legal process outsourcing e.g. to India or even Halifax (Tory’s research and drafting wing)? Are they routes to a solution, or at least sufficient threats to the traditional model that new techniques will be needed for economic reasons, if not social justice reasons?

    Do different techniques just allow law firms to increase their profits from the existing numbers of clients, rather than increase the number of clients?

  6. Just because a matter is provincial in nature under the constitution doesn’t mean there cannot be federal involvement. But that would still require a transfer of funds to the provinces from an already shrinking tax base.

    Ken’s post really seems to be encapsulating the frustration we all feel as members of this profession with a duty to improve the system, but remaining incredibly constrained over how we can actually accomplish this. It’s certainly a sentiment I can heartily endorse.

    I would love to see access to justice being one of the main issues up for discussion this election. Unfortunately it seems we are all distracted by far more mundane and unimportant considerations, and we have nobody to blame about that but ourselves.

  7. I wrote about this problem in Law Times, March 21, 2005 as it relates to Family Court in Ontario. At that time, the court imposed a case management system that virtually quadrupled the number of court appearances necessary to complete a matter. No lawyers could make that affordable to their clients. The court then created 20 times more required forms and filings to get before the court, and no self-rep could navigate those, either. No audit or review of the implementation of this system was ever conducted (10 years of it). The bench hints it was necessary to stop the “affidavit wars” and the “adversarial system so hurtful to families”. They are now faced with self-reps (80% in some jurisdictions) and to blame that on lawyers (the high cost of legal services) is absurd. To expect the resolution to come from lawyers means you are just as dishonest (or in denial) as the persons or committees that created the problem. The misdiagnosed the problem, applied the wrong remedy, and are now too committed to admit error and let us correct the system. The Ontario Auditor General or the Federal Auditor General should audit the Case Management System in the Ontario Superior Court of Justice, Family Branch, follow the money and name names. The results will amaze you.