Increasing Access to justice requires ‘culture shift’ not just lower lawyer fees: new book

With unmet legal needs at a “crisis point,” it is not simply reducing lawyer fees but rather “foundational reforms” and a culture shift, that is needed to improve access to justice, according to new research from the Cost of Justice Project, at Osgoode Hall Law School.

These findings are contained in a new book, released Sept. 1: The Justice Crisis: The Cost and Value of Accessing Law. The book compiles a new collection of empirical research from 24 Canadian and U.S. academics and is edited by York University Professors Trevor Farrow and Lesley Jacobs. The research is part of the seven-year, $1-million Cost of Justice Project, carried out at the Forum on Civil Justice located at Osgoode Hall Law School.

“For decades, we've tried to understand the access to justice problem by looking at the provider – meaning, lawyers, courts and academics in the system. What we have started to pick up on… is to shift our focus from the provider to the user – being the public,” says Farrow, who is also chair at the Canadian Forum on Civil Justice.

Aside from courts and lawyers, access to justice requires public legal education, alternative dispute settlement, paralegals, regulatory innovation and robust legal aid, among other factors, he says. Also needed are social innovation initiatives, such as justice innovation hubs, NGOs, information centres and public/private collaboration, said a press release on the book release.

In July, a report from Community Legal Education Ontario found that to enhance access to justice, more collaboration was needed between the justice system and not-for-profit community groups.

“Having access to justice primarily means having available options to prevent, address and resolve the legal problems and challenges that people face in their daily lives. This requires more than traditional courts and lawyers,” says Farrow.

According to the research, Canada lags among peers in accessible justice. At a cost of around $6,000 per matter, Canada spends nearly $8 billion a year on “everyday legal problems.” This represents three-quarters what households spend on food, half of average transportation costs and a third of what Canadians spend on housing, annually.

While Canada was in the middle of the of the pack among sample comparison countries in access to laws and legal information, when it comes to affordable justice and efficiency in the civil justice system, Canada ranks lower than average. While less than 20 per cent of Canadians will seek legal advice for their problems, even fewer – less than seven per cent – will use the courts to resolve those problems.

“There's a lot of really good-faith efforts, by courts and lawyers and governments and others, to try and start to understand and improve access to justice,” says Farrow. “Up until recently, we have not had much of any good data on what works, what does not work, what's the cost-benefit analysis of doing or not doing certain things. And so we've been working at a data deficit for quite some time in the Justice community.”

The book uncovers how the access-to-justice crisis is experienced differently by different communities and how some actions taken to meet the challenge have not had their desired effect, says Farrow. For example, the research details how for domestic violence survivors, “access to justice costs and barriers are higher and more complex,” than for other justice system participants. For Indigenous communities, although the compensation scheme for residential school survivors was put in place in an attempt to provide justice for survivors, in some cases the process re-traumatized and re-victimized those it intended to help, says Farrow.

Another study looked at the impact of paralegals on landlord and tenant cases in Ottawa.

“In this particular study, what was found was a mixed result, in that some of the assistance that paralegals were providing actually benefited landlords more than tenants, which was not the intention in terms of the access-to-justice benefit of widening the scope of who provides legal services,” says Farrow.

“It's not surprising that when you start to study things and get good data, you start to learn a lot more about what works and what doesn't. And this book is an example of us really working hard, through a collection of scholars and research projects, to better understand what's needed in justice. What's working and what we might do better.”