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Middle Income Access to Justice

Middle Income Access to Justice

Michael Trebilcock
Anthony Duggan
Lorne Sossin
Copyright Date: 2012
Pages: 624
  • Book Info
    Middle Income Access to Justice
    Book Description:

    Middle Income Access to Justicepresents a variety of innovative solutions, from dispute resolution process reforms to the development of non-lawyer forms of assistance and new methods for funding legal expenses

    eISBN: 978-1-4426-6060-1
    Subjects: Law, Political Science, Economics

Table of Contents

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  1. Front Matter
    (pp. i-iv)
  2. Table of Contents
    (pp. v-viii)
  3. Foreword
    (pp. ix-x)
    Beverley McLachlin

    We live in a society committed to the rule of law. We have aCharter, a complex and vast edifice of law (both common law and statute), a strong legal profession, and a respected judiciary. We have built, in Canada, what by world standards is an impressive justice system – one of the best in the world. This has not been easily done. It was achieved by the vision, tenacity, and sacrifice of the generations that have preceded us. We should be proud of their accomplishment. Yet the task of securing justice for Canadians is not done. Having achieved a justice...

  4. Contributors
    (pp. xi-xviii)
  5. Part 1: Introduction

    • Introduction
      (pp. 3-24)

      This volume proceeds on the fundamental assumption that access to justice is a basic right. Access to justice, as we conceive it, means the effective right of an individual to advance in appropriateforalegitimate legal claims or defences against claims by others.¹ Most conceptions of the rule of law assume equality before the law and hence access to law or the justice system as one of its fundamental predicates. This basic right is not being met for many low and middle income Ontarians, especially in the area of civil justice (which we take to include the full range of...

  6. Part 2: Defining the Problem – What Are the Unmet Legal Needs?

    • 1 Caught in the Middle: Justiciable Problems and the Use of Lawyers
      (pp. 27-54)

      The problems to which the principles of civil law apply are, to a great extent, problems of everyday life. They concern people’s employment, housing, family life, consumer transactions, health, and welfare. As Hadfield has commented, we live in a ‘law-thick’ world.¹

      While ‘not all problems are justiciable,² nor all justiciable events problematic,’³ those everyday problems that are justiciable consistently result in worry,⁴ frequently involve adverse health consequences, and can lead to loss of income, employment, or a home or even the break-up of a family.⁵ Thus, it is a matter of general concern that people be able to resolve such...

    • 2 The Ontario Civil Legal Needs Project: A Comparative Analysis of the 2009 Survey Data
      (pp. 55-92)

      Several countries have followed the lead of British researchers since the late 1990s by using civil legal needs surveys to characterize the types of legal problems that individuals confront, their responses to these events in terms of advice-seeking behaviour, and the demographic traits and socio-economic conditions that are likely to predict patterns of problem and response. A shared approach to conducting and analysing these surveys has emerged – first among the Commonwealth jurisdictions and more recently in countries such as Belgium, the Netherlands, Japan, and China. The comparative results of these studies are now beginning to tell an increasingly nuanced story...

  7. Part 3: ‘Front-End’ Proactive Solutions

    • 3 Front-End Strategies for Improving Consumer Access to Justice
      (pp. 95-142)

      Access to civil justice is not exclusively a poverty-related concern. In other words, the problem is not just that some people cannot afford to pay legal fees, but also that legal costs are often high relative to the amount in dispute so that it becomes uneconomical for the claimant to take her case to court regardless of how poor or wealthy she may be. The bottom line is that typically it makes no sense to litigate small to medium-sized claims in the traditional way.¹ The problem affects civil disputes across the board, but surveys in Ontario and elsewhere suggest that...

  8. Part 4: Non-Lawyer Forms of Assistance

    • 4 Opportunities and Challenges: Non-Lawyer Forms of Assistance in Providing Access to Justice for Middle-Income Earners
      (pp. 145-172)

      In this paper, I address the issue of non-lawyer forms of assistance and middle-income access to justice as part of a comprehensive strategy to promote meaningful access to justice. I do so by presenting the ideas of ‘non-lawyer’ and ‘middle income’ as variables in, or components of, the larger Access to Justice question. As the Background Paper to the Colloquium cautions, we should be ‘attentive to the fact that a focus on solving access to justice problems of the middle class may have an impact on low-income individuals and communities.’¹ How can we be sure whether the steps we propose...

    • 5 Middle Income Access to Civil Justice: Implication of Proposals for the Reform of Legal Aid in England and Wales
      (pp. 173-190)

      This paper addresses the content and implications of a consultation paper, titledProposals for the Reform of Legal Aid in England and Wales, which was published on 15 November 2010.¹ The proposals themselves cover both criminal and civil cases. However, this paper is concerned only with those that relate to civil matters and, in particular, legal advice or, as it is now known technically, ‘legal help.’ English experience might be relevant to Canada in three ways:

      The government’s proposals indicate those areas of law that the current U. K. government considers are sufficiently grave in their effects on potential clients...

  9. Part 5: Access to Lawyers

    • 6 Should Legal Services Be Unbundled?
      (pp. 193-221)

      The purpose of this paper is examine and evaluate the phenomenon of unbundling legal services as a means of enhancing access to justice, particularly for the middle class.¹ We argue that unbundling has significant potential to enhance the efficiency and effectiveness of delivering legal services, but in order to achieve these outcomes, unbundling will require changes both in the regulatory culture and in the business model of the legal profession.

      As Michael Trebilcock asserted in theReport of the Legal Aid Review 2008, ‘if the rule of law is considered to be based on laws that are knowable and consistently...

    • 7 Money Isn’t Everything: Understanding Moderate Income Households’ Use of Lawyers’ Services
      (pp. 222-245)

      We know surprisingly little about the use of lawyers by moderate income people. What we do know includes some unexpected elements. Despite a widely shared perception that lawyers’ services are prohibitively expensive, a survey of Americans who have used lawyers’ services finds that Americans are often satisfied with the fees they paid, while surveys of Americans who considered and decided not to use lawyers have found that this decision is motivated by cost in only a minority of instances.

      Drawing on fundamental insights from sociology, I propose two additional factors that may shape middle income Americans’ use of lawyers: the...

    • 8 Legal Services Plans: Crucial-Time Access to Lawyers and the Case for a Public–Private Partnership
      (pp. 246-268)

      A fair legal system aspires to provide justice to all. This requires that all people have access to appropriate legal services as soon as they are needed. The crucial time is often well before the legal crisis occurs; it is when the seeds of the future dispute are sown. If crucial-time legal services are not obtained, poor decisions are made and an easily resolved problem will grow into one that only litigation can solve. When legal services are provided at an earlier, crucial time, overall cost is substantially reduced. The general public may not believe that private legal disputes should...

  10. Part 6: Reforming the Dispute Resolution Process

    • 9 Reforming Family Dispute Resolution in Ontario: Systemic Changes and Cultural Shifts
      (pp. 271-315)

      Ontario residents are more likely to have a dispute concerning a familial relationship than any other type of serious legal problem.¹ The family dispute resolution process has evolved considerably over the past few decades, but the pace of change has been frustratingly slow, with many sound reports and recommendations for reform ignored, resulting in continuing unaddressed concerns about the family justice system. Many of those embroiled in these often traumatic, life-altering disputes have difficulties gaining access to the justice system and must proceed without adequate legal advice and assistance. The 2010 Law Commission of Ontario Report on the ‘broken’ family...

    • 10 Some Reflections on Family Dispute Resolution in Ontario
      (pp. 316-327)

      I generally agree with Professor Bala’s excellent, insightful, and, not surprisingly, well-researched paper, and with his conclusions on systematic changes and cultural shifts. I add my own commentary based on my personal judicial perspective, influenced by my experiences as a practising family lawyer in Hamilton, as a sitting judge at the original Unified Family Court in Hamilton, and, since 2007, as a member of the Superior Court Family Team in Toronto.

      Wonderful, dedicated, and well-intentioned professionals (including academics and researchers) across disciplines and court staff work in family. They assist the vast majority of families to resolve issues arising from...

    • 11 Access to Justice for Small Amount Claims in the Consumer Marketplace: Lessons from Australia
      (pp. 328-351)

      This paper addresses the problem of small amounts claims in the market place for consumer goods and services. A small amount claim is an amount that could potentially be obtained by a successful (legal) claim for loss suffered but that is insufficient to justify actually pursuing the claim because of the risks and potential costs involved. Because these risks and costs are generally so substantial, the dollar amount of a small amount claim can be significant. The loss from abandoning the claim is borne by individual consumers, as well as by society and the economy. Individuals suffer loss through forgone...

    • 12 Challenges in Small Claims Court Design: Does One Size Fit All?
      (pp. 352-382)

      The small claims court holds a unique place in access to justice theory;¹ often hailed as the ‘People’s Court,’ it purports to offer individuals an informal, fast and inexpensive public forum for resolution of small disputes.² Within this aggressive mandate, the court is charged with the responsibility of satisfying the accessandjustice needs of disputants. In addition to access to justice objectives, the court has other responsibilities, such as enhancing government efficiency within the administration of justice as a whole and offering effective business debt collection. In sum, the expectations for small claims courts are numerous and varied, involving...

  11. Part 7: Creating Change and Reform of the Judicial System

    • 13 Growing Legal Aid Ontario into the Middle Class: A Proposal for Public Legal Expenses Insurance
      (pp. 385-410)

      The legal aid system in Ontario is not working, particularly with respect to access to justice in civil matters. Financial eligibility requirements remain frozen at extremely low levels and have been steadily eroded by inflation, leaving increasing numbers of people ineligible for publicly paid legal assistance. The range of services covered prioritizes criminal law and family law and, except for some legal aid clinics, does not extend to employment law, consumer law, and debtor/creditor law. In combination, this means that publicly funded legal aid cannot meet many of the most pressing legal needs of middle income Ontarians. Moreover, private markets,...

  12. Part 8: The Options Papers

    • Middle Income Access to Justice: Policy Options with Respect to Family Law
      (pp. 413-449)

      Family law problems are the civil legal issues that are experienced most frequently by Ontarians.¹ Roughly 75,000 new family proceedings are commenced every year in the province’s courts.² The justice system that these people encounter has substantial strengths but also notable weaknesses. For example, 45.7 per cent of lower- and middle-class Ontarians who resolved a family justice problem within the past three years reported that the process by which they did so was ‘unfair.’³ These problems persist despite continuous and well-intentioned reform efforts. Within the past few years alone, there have been several major policy reports focused on family dispute...

    • Middle Income Access to Justice: Policy Options with Respect to Employment Law
      (pp. 450-484)

      The complex role of work in the lives of individuals presents a number of unique challenges for access to justice in the area of employment law. With over 17 million people working in Canada,¹ the pool of individuals with potential legal needs is substantial, and the proportion of daily life spent at the workplace contributes to the likelihood that problems will arise. Moreover, the stakes involved for employees are often high. Employment is the ‘primary means of distributing income in Canada,’² and its impact on the life of an individual extends to non-economic issues as well. As the Supreme Court...

    • Middle Income Access to Justice: Policy Options with Respect to Consumer and Debtor/Creditor Law
      (pp. 485-520)

      Problems involving consumer and debtor/creditor law have consistently been identified as some of the most prevalent legal concerns among the lower and middle income population.¹ Ontarians consistently have difficulty accessing the legal system to address these concerns due to a lack of awareness (1) of their rights with respect to various consumer transactions, and (2) of the mechanisms available to vindicate these rights. Other hurdles include literacy barriers, legal process costs, and a variety of other factors considered below. This paper develops policy options for improving access to the civil justice system for lower and middle income Ontarians seeking to...

  13. Select Bibliography
    (pp. 521-540)
  14. Index
    (pp. 541-556)