Can We Get There From Here?

One of my favorite jokes involves a visitor lost in rural Scotland. The tourist comes upon a farmer and asks the farmer for directions to Edinburgh. The farmer pauses, appears deep in thought, and then says[1] “I don’t think that I would start from here”.

Challenges to reform

I’ve been listening to an interesting podcast series called Revolutions that discusses the English, American, French, Haitian, 1848 European, Spanish American, Mexican, and Russian revolutions[2]. The series is interesting in its consideration of the transition from feudal to industrial economies and the parallel development of liberal and socialist thought. Interesting for present purposes is the extent to which change, whether by reform or revolution, is shown to be incredibly difficult given existing economic and social realities. Legally liberating serfs doesn’t do all that much when the existing agricultural methods required the same work done in the same way for people to eat the next day.

The idea that change is usually path dependent is important. Imagining a bright new future is much easier than actually achieving useful change. This is not difficult to understand. People depend on their current roles for their economic and social well-being. Most people naturally want to contribute and believe that what they do, and how they do it, is socially valuable. Legal education provides an example. Some say that law school is too expensive and too long, especially given that most law students now have undergraduate or graduate degrees. Starting with a blank slate, we might not choose the current approach. But with law schools in existence, with the established academic tenure-based model, with professors who are skilled at, interested in and proud of what they now do, material change is very difficult. My point is not to demean this status quo but rather to underscore that change is hard, even where the right change is clear (which it usually isn’t).

Path dependence is important to achieving better access to justice. Much time and effort has been spent on access to justice reform over the last two decades. Important changes have been made – and yet it feels like things aren’t very different. This is, in part, because established systems are very hard to materially change.

The legal system in theory

In thinking about access to justice reform, it is useful to think about the legal system as a system.

In terms of players and roles, we have (i) people with legal issues, (ii) representatives and advisors and (iii) decision makers. Legal information is an important resource. For resolution of disputes, much of the system is bult around traditional in-person court and court-like processes.

As for decision-makers, our mental picture starts with judges but moves relatively easily to adjudicators in administrative tribunals. We do not as easily imagine or accept decision-making by processes or by use of technology.

As for representatives and advisors, our mental picture starts with lawyers but again moves relatively easily to paralegals. Importantly, many people represent themselves, sometimes with assistance and sometimes not. We naturally think about representation in disputes more easily than advice and assistance where there is no dispute. We do not easily see community justice help and provision of legal information as part of the puzzle and many are skeptical about process or technological provision of assistance and information.

People with legal issues don’t always know that they have legal issues. People with legal issues don’t always require a decision-maker. Not all legal issues are disputes. Not all disputes require a third-party decision-maker. The decision-maker does not necessarily have to be a traditional adjudicator, deciding based on an adversarial process. Adversarial processes can involve greater and lesser procedural complexity.

The legal system and reforms in practice

Just as it is useful to think about systems in theory, it is important to recognize realities. Our dominant paradigm is the judge and lawyer-based court system, even though this paradigm is not a perfect reflection of reality. But it is useful to see our current legal system as being based on the dominant paradigm and that much of what has been done in recent years as modification intended to relieve pressure on and in the system rather than materially change the system.

Self-representation

There has been an explosion of self-representation in civil and family disputes over the last two generations. The cause of this explosion isn’t entirely clear and there is likely not just one cause. Societal acceptance of divorce, and the resulting need to address the consequences of divorce, no doubt resulted in a much-increased need for legal decision-making. It seems that increased procedural entitlements have added to the cost and complexity. Perhaps increased education and access to information has made self-representation more effective or, at least, desired by some.

In any event, courts and tribunals have worked to enable self-represented litigants to participate in existing processes. Law societies have changed conduct rules to enable limited scope retainers so that people can obtain some assistance without full representation. The National Self-Represented Litigants Project provides important assistance and information to self-represented litigants. Significant work has been done to provide information and resources to litigants in family law matters[3].

Court and law reform

In family law, the adoption of child support guidelines has been particularly important both practically in practice and as an example. Reducing the need for and availability of expensive discretionary decision-making has been an important contribution to resolving important issues on separation.

In Ontario, court reform in civil matters has focused on increasing small claims court limits. In 2010, the limit was increased from $10,000 to $25,000. In 2020, the limit was increased to $35,000. In Superior Court, the simplified rules now apply to civil cases up to $200,000.

In British Columbia, the Civil Resolution Tribunal is Canada’s first online tribunal dealing with condominium disputes, civil claims up to $5,000 and motor vehicle accident and injury claims of up to $50,000.

In Manitoba, a three-year pilot “dispute resolution process for resolving family disputes, outside the traditional court system” has been established.

In Québec, exclusive monetary jurisdiction over civil claims for less than $85,000 was removed in 2016 from the Superior Court to Court of Québec. On June 30, 2021, this was held to be unconstitutional as being contrary to the “Prohibition Against Creating Parallel Courts That Undermine the Role of the Superior Courts”. Reference re Code of Civil Procedure (Que.), art. 35, 2021 SCC 27.

In their majority reasons, Justices Côté and Martin observed that section 96 of the Constitution Act, 1867 was based on two key principles: national unity and the rule of law. The former reinforces the national character of the Canadian judicial system which no doubt has its benefits but makes access to justice reform a greater challenge. The latter is maintained by maintaining the separation of judicial, legislative, and executive functions. From an access to justice innovation perspective, it is not necessarily important whether innovation is the responsibility of the judiciary, the legislature or the executive as long as there is innovation. However, this recent decision effectively requires more from section 96 courts including greater focus on reform by rule and process change rather than through establishment of new tribunals and other decision-making processes. This decision appears to limit the potential for the sort of innovation undertaken in British Columbia and Manitoba and to increase the importance of the simplified rules and similar initiatives within superior courts.

Post-pandemic courts

The pandemic of the last 16 months has been a startling disrupter and the cause of substantial innovation. Our dispute resolution process suddenly moved from a primarily in-person process to a largely remote process. It remains to be seen whether this will be seen to be a temporary change of merely historic interest or whether the post-pandemic world will continue to use technology to bring decision-makers, counsel, parties and witnesses together for in-person virtual hearings.

There are of course advantages to in-person hearings. The issue is whether those advantages are cost-justified, who bears those costs and whether there are counter-balancing disadvantages. For the judge, it is probably simplest to have everyone in the same room. For counsel who are paid for their time, being in-person has advantage and little disadvantage, subject to the inconvenience of travel if required. For witnesses, the issue is the cost of travel and time. In-person testimony imposes direct and indirect costs on witnesses. For parties, the issue is the cost of travel and time, both for counsel and of the party.

The recent Modern Advocacy Task Force Final Report from The Advocates’ Society is notable in this regard. The report observed that “Stakeholders repeatedly came back to the principle of proportionality when considering the future roles for remote and in-person oral advocacy. The method and type of hearing must be proportional to the issues at stake” while also saying that “Stakeholders acknowledged that proportionality is not tied to specific monetary amounts, or to specific categories of cases. It is more of a “smell test” and the consensus among stakeholders was that it must be left to judges and other judicial decision-makers”. In a path dependent world, this may well be a problem given the natural inclination of the decision-maker to choose what works best for the decision-maker where the cost is borne by someone else. There is a systemic difficulty in maintaining easy choice and accordingly the cost of two infrastructures.

The report’s recommendation that “As a general guideline, a court should order an in-person hearing where the matter to be determined represents a significant step in the proceeding, and at least one of the parties is seeking such a hearing” seems to me to be a recipe for maintenance of the pre-pandemic status quo.

Legal information and community justice help.

Another very important focus has been on access to legal information and community justice help as already discussed above, in the family law context. A good example of new approaches to the provision of legal information is the Steps to Justice website provided by Community Legal Education Ontario. Steps to Justice provides a structured guide to legal information with on-line chat assistance.

As for community justice help, Julie Mathews and David Wiseman have recently published a discussion paper that sensibly starts with the observation that that “When people who have low incomes or face other social disadvantages need help with basic needs and rights, they need it urgently. They often turn to community workers they already know and trust”. Making sure that appropriate community justice help is not chilled by unclear and unnecessary legal services regulation is important.

Access to legal information and community justice help is important. It is valuable for people to be able to easily access information and assistance. But it is probably also right to think that this access is more important because of the expense of the dominant paradigm.The Canadian Forum on Civil Justice, with support from IDRC, is currently involved in a study to better understand the costs and benefits of community-oriented legal services and the opportunities for scaling these services for broader local and regional impacts.

Paralegal representation

While paralegals have been part of the Ontario legal system since the 1980s, paralegal regulation only began in 2007. This change reflected the increasing importance of paralegals in the legal system which arguably reflected a search for less-expensive alternatives. In any event, the number of paralegals has continued to increase, and paralegals are seen as a way of addressing the cost of dispute resolution. Entirely unsurprisingly, this results in political tugs-of-war as vested interests play out in legitimate policy debate. Path dependence is a thing.

Alternative providers

In England, the desirability of increasing competition from new types of legal service provision led to significant reform in the Legal Services Act, 2007. While the English approach was more driven by the policy view that regulation was inhibiting innovation and that competition would enhance consumer choice, there was an element of access to justice focus in the decision to allow alternative providers. This is reflected in the regulatory objectives set out in the Act which include both “improving access to justice” and “promoting competition in the provision of legal services”.

While still early days after nearly a decade, the advent of alternate providers has not been paradigm- shaking. As Richard Susskind (a long-time advocate for alternative provision) has recently written:

For routine legal work, therefore, the law and lawyers should lie at the heart of legal service. The common narrative that great swathes of legal work can be taken on by non-lawyers with playbooks or by autonomous advanced technologies neglects the essential sense-checking, supervisory, quality control, and gap-filling contributions that only lawyers can make, if legal service is to be robust and reliable.

What to take from this?

Over the last decade, there has been no controversy about the need for reform. Much work has been done in Canada. In many important ways, fundamental problems have been ameliorated by reform. But it is not clear that the fundamental problems have much changed.

The same is true in other countries. In Australia, England and the United States, interesting and sometimes existing regulatory and other innovations have been adopted. But it does not appear that any of these innovations have done more than take the “edge” off the problem.

Taking an empirical approach, it seemed to me that it might be useful to look internationally at self-representation, assuming self-representation principally to signal a problem with the existing system rather than a preference. The hypothesis was that comparable jurisdictions with lower self-representation might be doing something right or at least better.

After a literature search and having made inquiries of Canadians who would know of knowledgeable people internationally, what I had found was information from the common-law world. This could of course have reflected linguistic and cultural solitudes and so I made inquiries to learn who might have informed insights regarding access to justice issues outside of the English common-law world. I focused on Europe, thinking that countries with reasonably similar economic, cultural and social conditions could provide the best comparators. I thought that the civilian legal system with greater emphasis on inquiry-type processes rather than adversarial processes might be more accessible by ordinary people.

While I had limited responses, what was said in response was that self-representation is not an issue in Europe because self-representation is generally not permitted. Even where self-representation is permitted, I was told that opting for self-representation is rare because the cost of legal representation is inexpensive. This obviously explains why I could not find literature on self-representation in Europe.

So (i) do lawyers earn that much less in Europe? or (ii) is the legal time required to be spent much less in Europe such that legal representation is affordable? I don’t know the answers to these questions or whether there are other questions that should be asked. But this information seems to suggest that the answer to high costs leading to self-representation is likely process reform to drive down the professional time required by ordinary people to resolve their disputes.

Returning to Canadian reforms, an interesting but difficult question is whether the unintended consequence of reform has been not to have to address the hardest issues. It is a reasonable hypothesis that prohibiting self-representation causes the legal system to find ways to work efficiently so that legal representation is affordable. It is also plausible that all of our thoughtful and innovative reforms designed to make self-representation reasonably possible and effective have meant that the legal system has not been forced to evolve and is more expensive than would otherwise be the case.

As often is the case, this limited research suggests further work. Comparative research in civil procedure to see what can be learned from comparable jurisdictions which have not had the self-representation phenomenon seems useful. It is also likely that there are malignancies to be understood in the European experience that are not apparent through limited investigation.

But there is reason to think that a legal system that requires more professional assistance than can be afforded by most people needs to be changed and that to ameliorate may be to accommodate that which ought to change. Of course, if change is not possible then amelioration is better than nothing but that is not a great result.

To return to the original theme, process dependency matters. Much of the good work that has been done in Canada assumes the current court-like adversarial model. It is very hard to do otherwise given the investment by society and by individuals (judges, lawyers and others) in this status quo. It is very hard for those within a system to meaningfully change the system and it is very hard for those from outside of the system to have much impact.

But it does seem that the paradigm needs change. Resolving disputes through the current system requires significant time and effort. As a result, professional assistance is expensive. As a result, many people represent themselves. As a result, much effort is properly spent trying to make that work. But, root causes matter, are hard to address, and deserve attention.

By Malcolm Mercer

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Malcolm Mercer is a senior research fellow at the Canadian Forum on Civil Justice.

[1] with a Scottish brogue that makes the joke better

[2] A paltry 305 episodes to date

[3] In Ontario, every person going through the family court process is required to participate in a mandatory information program. Directories of lawyers who provide limited scope services have been established to assist litigants. Court-based family law information centres and mediation centres have been established. These are just some of the important work that has been done by the courts, the government and the profession.