The Canadian Bar Association (CBA) released a summary report from the Access to Justice Committee this month called Equal Justice: Balancing the Scales. It addresses the challenges to accessing the civil justice system in Canada and sets out targets that should be achieved by 2030. The targets engage many different sectors of society, including provincial and federal government, the courts system, law schools, members of the legal profession and the public, to improve the accessibility of the civil justice system.
The CBA report comes on the heels of the recent Ontario Superior Court of Justice decision York University v. Markicevic et. al, where Justice Brown quite openly addressed the burdensome costs associated with civil litigation and the right to access the civil justice system (including accessing legal representation).
In Markicevic, Justice Brown was asked to lift a certificate of pending litigation registered against a property owned by one of the defendants, Mima Markicevic. A certificate of pending litigation is registered against title to a property which informs other parties that a plaintiff has an interest in the property that he or she is seeking to enforce. The defendant wanted to access the equity in the property to cover her, and her parents’, legal fees.
In dealing with whether to grant Mima Markicevic’s request to lift the certificate, Justice Brown highlighted the importance of providing access to the civil justice system and the role judges can play in ensuring that “those who seek justice actually end up in a court room where justice is dispensed, without encountering financial exhaustion before reaching the threshold of the court room.”
In that case, Justice Brown discharged the certificate on the property owned by Mima Markicevic, freeing up approximately $507,000 in funds to finance the defendants’ future legal fees. According to Justice Brown, $507,000 would be less than even a conservative estimate of what it would cost to defend the litigation. In making the order to lift the certificate, Justice Brown noted that, “If we have reached the point where $800,000 cannot buy you a defence to a $1.2 million fraud claim, then we may as well throw up our collective hands and concede that our public courts have failed and are now only open to the rich.”
Justice Brown’s concerns about accessibility in the civil justice system are captured in the Equal Justice report. The report notes declining public support for the justice system has led to a “devalued” civil justice system that is no longer regarded as a fundamental aspect of our democratic system.
According to Equal Justice, despite strong support among Canadians for a publically funded legal aid system, individuals accessing the system raise consistent concerns that the system is too costly and inaccessible to ordinary people. As a result, the public has not actually mobilized to demand public funding and increased accessibility of the civil justice system in Canada. Instead the CBA estimates that funding for legal aid has decreased 20 per cent since 1994, in part because of a decrease in federal funding to legal aid programs.
In addition, Equal Justice notes that the inability to access the civil justice system in a meaningful way has effects beyond the immediate legal issues impacting individuals who become engaged with the system, and may negatively affect other areas of an individual’s life including health, employment and housing.
Notably, Equal Justice criticizes the continued reliance on pro bono legal services. The report finds that the reliance on volunteer efforts will not improve accessibility because these efforts are too ad hoc to provide “predictable and secure response to essential legal needs.”
The CBA makes several recommendations aimed at decreasing the costs of litigation and assisting unrepresented litigants in navigating the civil justice system. These recommendations include improving legal literacy, making greater use of technology in delivering legal services, more active case management and use of alternative dispute resolution during litigation, and “team delivery” of legal services, which may involve other types of service providers, such as social workers.
The report also recommends significant strengthening of publicly funded legal services, including not only improving access and eligibility for low- and modest-income individuals, but also providing access to publicly funded legal services to all Canadians.
As highlighted in Markicevic, one of the main obstacles to making the civil justice system publicly accessible is costly “money‑draining” procedural steps which prevent litigants with limited resources from using the civil justice system in a meaningful way. Justice Brown states that this is “reflects an unacceptable failure on the part of our civil justice system.”
Given the high costs and complexity of litigation, Equal Justice has offered solutions geared towards reducing legal costs and improving public funding. Achieving these two complementary goals will require significant public engagement in the justice system, something which will likely be the biggest hurdle in the action plan set out. Without providing a path for meaningful engagement with the civil justice system, it is difficult to see how we can reshape the public perception of our civil justice system as worthwhile and fundamental to a democratic society.
Iler Campbell LLP is a law firm serving co-ops, not-for-profits, charities, and socially-minded small business and individuals in Ontario.
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