Column

Governments: A2J Is Mostly Your Mess to Clean Up

It’s easy to blame lawyers for the failure to provide people with accessible and reliable legal solutions. But truthfully, I’d place only about a third of the responsibility for the A2J at the feet of the legal profession.

Lawyers’ contribution to the access failure in Canada falls into two broad categories:

Regulatory: Lawyers elected by other lawyers constitute the great majority of law society Benchers who have consistently blocked expanding the supply of legal services providers beyond the legal profession.

Commercial: Lawyers in private practice charge fees that are beyond most people’s financial capabilities, both in terms of amount and uncertainty, driving ordinary people away from the justice system.

Neither of these problems is insoluble — lawyers could reform both these areas if they were sufficiently interested. But if we could wave a magic wand tomorrow and make lawyers in this country widely available and reasonably affordable, we’d still have an access problem. (In fact, as I wrote here a few years ago, free and plentiful lawyers would actually make that problem worse.)

Most of the responsibility for our access failure, I’ve come to conclude, lies with governments, both federal and provincial. Governments’ contributions to our failure to ensure accessible and reliable justice again fall into two broad categories.

Institutional: Governments have allowed the public infrastructure of justice to deteriorate, from a federal government that seems incapable of appointing badly needed new judges to provincial governments that don’t even understand why they can’t tell judges how to rule. Not enough courthouses and staff, not enough public-facing resources in those courthouses, not enough money for civil legal aid.

Democratic: Governments have failed to address people’s disempowerment in seeking justice solutions. They have not overruled law society protectionism, they have insufficiently educated people on their legal rights and remedies, they have failed to develop more alternatives to the calcified court system like the Civil Resolution Tribunal, and they have been largely indifferent to the ensuing justice gap.

Whereas lawyers’ sins against access are mostly those of commission — restricting supply and charging inaccessible fees — governments’ sins have been those of omission: failing to act, refusing to intervene, allowing the justice system to corrode and decay. (Courts and judges have their own flaws to reckon with, including overly complex rules of procedure and needlessly formalistic standards for submissions.)

Anyone involved in the justice system who wants to point fingers of blame at others for the access crisis should remember the Spider-Man meme — there are just as many fingers pointing back your way. Nobody is guiltless here. But the good news is that we can do something about all of this.

  • As lawyers, we can press for regulatory governance reform and invest in modernization efforts to lower our costs of doing business to make our services more affordable while still maintaining profitability.
  • As friends of the court, we can collegially push judges to lower their procedural barriers and join them to demand better justice infrastructure.
  • And as citizens, we can demand that our elected representatives take justice in this country seriously, or organize and campaign in favour of challengers who will.

There’s plenty of blame to go around, and governments own more than anyone. But let’s not forget that fundamentally, we are the government — it’s run by people like us, led by people voted into office by us. Ultimately, the only people who can change that — the ones with the right and responsibility to change that, through public advocacy and at the ballot box — is us.

Comments

  1. Thank you, Jordan, for writing such a thought-provoking article. With an election year just around the corner, it is time to press candidates for their stand on A2J.

  2. Great piece Jordan, thank you for the write up. I do, however, thing that fewer barriers and more plentiful and cheaper lawyers will have a positive impact. Governments have become accustomed to reactive approaches instead of proactive ones, and so it might be that a breaking-point crisis is the only thing that will see them take real action. For my part, I would accelerate the current trends by making justice more available. If that causes issues, it is unfortunate, but sometimes the wheel must squeak before it can be greased, and clearly it’s not squeaking loud enough today.

  3. Gerald R. Genge, P.Eng., LL.M. B.A.Sc., C.Arb., Q.Med.

    Let’s try to avoid pigeonholing the term “justice” into one dispute resolution process. More judges and more courthouses, as far as access to justice is concerned, are just nibbling at the edges of the real problem. That is, allowing people to seek their own manner of resolution (within the law). Currently, the court process is a lumbering and aging giant that needs not more bulking up, but an opportunity to go on a serious diet.
    Most civil cases are all about money. Parties say they are about rights… but it is money in the end because the courts use money as a proxy for entitlements arising from rights. If that is the case, and all evidence, including mediated settlement, points to it being the case, then why not have subject matter expert adjudication? Just let the parties pick a third party they both believe actually understands the issues, rights, and valuations and let them decide. Lawyers and the courts would have to change their protective attitude in the guise of fair process, but the parties really want a quick, low-cost process, that gets them a good answer and that’s what expert adjudication does.

  4. I agree that expert, specialized adjudicators are often very helpful in creating A2J. That’s why arbitration is so common, in cases where the parties can afford it. Unfortunately in many of the most problematic A2J areas (family law, landlord-tenant, personal injury, etc) the parties can’t afford arbitration, and also lack the experience to identify and agree upon a suitable arbitrator.
    For such cases, I think tribunals are a great option in principle. Tribunals, when functioning properly, are able to offer expert and specialized adjudication (and mediation), at little or no cost to the parties.

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