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PBO issue highlights unfinished business

Speaker's Corner

Pro Bono Ontario has received the money it needs to keep three Law Help Centres open for a year. Because of this, thousands of Ontarians will continue to receive free civil legal help from lawyers.

Congratulations go to all those who spoke out and donated money to make this happen and to the federal government, which came through with a $250,000 contribution that will keep the centres open in 2019. The thousands of hours of free legal help donated every year by Ontario lawyers demonstrate how deeply and passionately lawyers care about people and their access needs.

However, this news is not a solution to a deeply embedded problem with our justice system.

The legal needs being met by the Law Help Centres are part of a much larger civil access-to-justice crisis. It is not new. Many have spoken in particular about a court process that is too complex, slow and unaffordable for most Ontarians.

The proposed solution often begins with a call for more — more judges and lawyers, more money and more support. Respectfully, more is not the answer. To borrow from Einstein, if you do more of the same, you will get more of the same result. Access for civil legal needs is now back to where it started before the funding crisis began. Can we use this opportunity to build better access to justice into the civil system and, if so, what are the levers of change?

What people need is less — less complexity. Complexity increases delay and cost. Together, they all undermine the quality of justice. Why is the system as it is? Maybe it’s the understandable desire to perfect the system and deal with the exceptional case. Whatever the reason, the system is not what it needs to be. 

Besides, Ontarians should not have to pay even more for access to a system for which they already pay. There is enough money for a system of justice that works better for those it is supposed to serve. It’s not enough for a perfect system, but it’s more than enough for better. However, the resources need to be allocated differently.

Why won’t it change? Many reasons might be at play. For now, let’s settle on saying that the reason these issues persist is due to the “momentum of inertia” — a phrase used by a former professor of mine at the University of Toronto.

But don’t take my word for it. Ask. Don’t just ask those who control and have built the system. Ask those who need to use it. And watch as lawyers take the clients who can afford a different approach out of the court system. What do the wealthy clients want? Always a simpler, faster and less costly alternative. Unfortunately, most people can’t afford to leave and, increasingly,  they can’t afford to stay.

Access is an issue that affects all, including the middle class. The wealthy can purchase an alternative. The poor sometimes get a little help with a small part of it. The middle class is left on its own in a system it pays for but that doesn’t work as it should. More money is not the answer; reform is.

If the energy and determination that were unleashed in less than a month to solve the PBO funding issue were engaged to reform the court process, significant and permanent change could be made in just a few months.  

The single most important access-to-justice initiative that could be undertaken would be to streamline the process to make it simpler. Cut out most of the paper/forms and the steps. Get to the decision point faster. This is what successful organizations have been doing for years.

Who could lead the reform? The judges and lawyers who control most of the court process through the rules committee have the power to change it. 

How? Start with three simple steps: Inform, triage, decide. First, provide information upfront, online, available to anyone whether they have launched a case or not that fairly tells them the issues, the options and what realistically will happen (not just the process). You could add to this by using technology to build a database of often-asked questions, leveraging the work of PBO and many other organizations. 

Second, triage every case before or as it is filed so that the emergencies are dealt with quickly and only the real issues are allowed to linger. Why? The justice system is publicly funded. It is not an all-you-can-litigate buffet. It should be like a hospital. You might want to see every expert in the hospital and have multiple procedures, but you will only see those you need to see and get what you must have.  

Finally, get the cases that can be resolved out fast. Move the cases along. Decide. Some may enjoy the journey, but most people need to get to the destination.

Justice is a right of all Canadians. It is entrusted to the profession to deliver. The system that is being delivered to Canadians is not working in the way it needs to work.

The professionals themselves are working as hard as ever. However, the system they work in is too slow, too complex and unaffordable for most. Governments can help the reform by protecting the vulnerable, standing up for all, including the middle class, and telling justice leaders there’s no more until they deliver a faster, simpler and more affordable system.

Let’s take this opportunity to build the more accessible justice system that people need.

Chris Bentley is managing director of the Legal Innovation Zone and Law Practice Program at Ryerson University and a former attorney general of Ontario (2007 to 2011).

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