Recent media articles and speeches by senior members of the judiciary have reported a growing incidence of unrepresented litigants in Ontario's civil justice system. This view was shared by many lawyers, judges and court administrators with whom I met during consultations. However, no formal study has been conducted on the number of unrepresented litigants, their socioeconomic profile, the nature of the legal problems they face and the gaps in serving them. I am advised that the Ministry of the Attorney General is undertaking efforts to collect statistics on the number of unrepresented civil litigants in Ontario courts.
During the course of this Review, I heard several explanations as to why there are more unrepresented litigants, assuming this to be true, such as: the rising cost of legal fees making representation out of reach for low and middle-class Ontarians; the prevalence of a “do-it-yourself” attitude among some litigants; and litigants seeking to pursue a claim or defence on their own, despite the advice of formerly retained counsel. I also heard from judges, lawyers and court administrators about the unique challenges and problems they face when dealing with a case involving unrepresented litigants.
Whatever the cause and impact of unrepresented litigants on the civil justice system may be, I am of the view that the civil justice system must exist to serve members of the public – whether represented or not. The solution, in my mind, is not to create additional barriers to inhibit or restrict access to the system. Rather, a reasonable modicum of resources and assistance ought to be made available to assist those with legal problems who cannot afford counsel or choose not to retain counsel, to permit them to more easily represent themselves in a system that can be foreign and complex for those without formal legal training. At a minimum, they should be able to obtain basic information about the civil justice system and early summary advice as to whether it makes sense to pursue or defend a case.
Assessment of Unrepresented Litigants' Needs
In at least four other Canadian jurisdictions (Alberta, British Columbia, Nova Scotia, Quebec), studies have been conducted on the needs of unrepresented litigants and how to meet them. Depending on the study, they provide information about the profile of unrepresented litigants, the nature of the legal problems they face or present to other users of the system, where gaps exist in legal services and how services may be improved.
In my view, a similar needs assessment ought to be conducted in Ontario. Information obtained would be invaluable in improving access to justice and developing a strategy to respond to the unrepresented. It would permit limited resources to be targeted to those areas where the greatest procedural, substantive or geographic needs have been identified, and make it possible to prioritize improvements accordingly. It would also shed light on the best means of making legal information and resources available and communicating their existence to the public.
In some instances, litigants need early advice on the substantive merits of a claim or defence. Such advice may inform a decision to pursue or defend an action. For others, minimal guidance and direction to appropriate resources may be all that is needed. Some may be able to pursue their case through the Small Claims Court without representation. In other, more complex matters before the Superior Court of Justice, the services of a lawyer may be required. The issue then is how to provide legal assistance that is responsive to litigants' needs and cost-effective in a civil justice system that must operate in a world of limited resources.
As matters now stand, limited help is available to those with civil legal problems who cannot afford a lawyer. With the exception of a very few civil legal aid certificates, Legal Aid Ontario does not provide assistance to litigants with civil disputes before Ontario's courts. In 2004, the Solicitors Act was amended to permit contingency fee arrangements in Ontario. 40 The contingency fee arrangement is used in almost all personal injury litigation. It has limited use in other litigation. The Law Society of Upper Canada, through the Lawyer Referral Service, will supply an applicant with the name of a lawyer who will provide up to a half hour free consultation in a specified area of the law. However, given the 30-minute time period, there are obvious limits on the benefits this commendable initiative may deliver.
Improving Information Resources for Civil Litigants
The Ministry of the Attorney General and the Court of Appeal have produced various resources and step-by-step guides to help litigants understand the processes and procedures in the Small Claims Court, the Superior Court of Justice and the Court of Appeal. The most helpful are the Small Claims Court Guides, which are available at court locations and on the ministry's website and provide step-by-step plain language explanations. The material relating to proceedings before the Superior Court of Justice and the Court of Appeal could benefit from additional detail and plain language, to better assist litigants. What is also missing is plain-language material for the public on the civil justice system generally and on substantive areas of the law that commonly affect unrepresented litigants. Moreover, the material that is available may not be accessible or its existence may not be well known to the general public. I accordingly recommend improvements in these areas.
Pro Bono Services
Other initiatives have been undertaken in recent years to respond to the plight of the unrepresented. Pro Bono Law Ontario (PBLO), a charitable organization that creates opportunities for lawyers to provide pro bono legal services to persons of limited means, was created in 2002. Since it opened, it has created approximately 30 pro bono projects in Ontario, with two projects targeted at assisting those with civil legal problems: the Toronto Small Claims Court Pro Bono Duty Counsel Project, and the Appeals Assistance Project in the Divisional Court and Court of Appeal. Both connect volunteer pro bono lawyers with litigants of limited means in those courts.
Many lawyers have also responded to the call. Either through participation in formal pro bono projects or through individual representation on pro bono files, it appears to me that lawyers and law firms are providing more pro bono services than they have in the past. I note, however, that not all Ontario lawyers can afford to take on pro bono files. It is a financial reality that the larger Toronto firms can better afford to offer pro bono services. This may well make the firm more marketable to articling students and younger lawyers who want an opportunity for first-hand experience in having carriage of an action or defence. In smaller communities, lawyers provide assistance to those who cannot afford the full cost of legal services. As one lawyer from a smaller Ontario community said: “I already do a lot of pro bono work. It's called my accounts receivable.” And according to a 2005 Canadian Lawyer survey, more lawyers are adopting innovative billing structures, such as contingency, flat fees and sliding scale fees. 41
I agree that pro bono services cannot adequately respond to all of the needs of unrepresented litigants. I do not think that imposing mandatory pro bono quotas or greater regulation of fees charged by lawyers is the solution. Market forces and the lawyers' sense of public duty will drive the amount of pro bono services that any one lawyer can offer and the fees he or she may charge. A recommendation to regulate these areas would have a chilling effect on the spirit of volunteerism that appears to be growing among the bar. I prefer to leave it to the Law Society of Upper Canada to examine these issues, should it see fit to do so. However, I encourage Ontario lawyers to continue to offer pro bono services and innovative billing options to enhance access to justice.
On the subject of legal aid in civil cases, there has been a healthy debate on the extent to which parties to a private civil dispute should be entitled to a government (publicly) funded lawyer. In his 1997 Report of the Ontario Legal Aid Review, Professor John McCamus noted that there is a range of civil matters for which legal aid certificates were historically granted, but are no longer available. He found that “certificate coverage has been eliminated for most civil law matters,” and made various recommendations for improved civil legal aid funding.
In September 2006, the Attorney General announced that an update of Professor McCamus' 1997 report will be undertaken. To avoid the potential for competing recommendations, it would not be appropriate for me to make specific recommendations with respect to civil legal aid funding. As a general finding, however, it is clear to me that the needs of the unrepresented should not and cannot be met by the spirit of volunteerism of the Ontario bar alone.
A Model for a Self-Help Centre
I think that meaningful immediate and direct assistance can be achieved by the creation of a civil law self-help centre. Self-help centres exist in many American jurisdictions, reportedly with much success. In Canada, civil self-help centres have been established in British Columbia, Quebec and Alberta. Ontario has adopted a self-help centre model for family litigants, known as Family Law Information Centres (FLICs).
The components of a given self-help centre may vary. It may provide services in a physical location at or near a courthouse, from a mobile unit or through a virtual location on the Internet – or a mix of these models. Services offered may include basic legal information and resources, referrals to other agencies, assistance with completion of forms, and summary legal advice by a staff or volunteer lawyer.
For example, the British Columbia model provides on-line, video and print resources, including self-help packages and forms; connects people with courthouse librarians to assist with legal resources; and provides information about alternative dispute resolution. The centre also provides information about what to expect when going to court, and directs people to free courses on court processes and procedures. In British Columbia, free legal advice is available through the telephone system LawLINE and a pro bono legal advice clinic. Members of the public must meet financial eligibility criteria to qualify for one of these free legal services. An evaluation in August 2006 found that “the Centre was providing a unique set of self-help services and was forming part of a larger context of emerging services for unrepresented litigants. Users reported the Centre as largely effective in satisfying their needs and in helping them prepare for court.” 42 It is funded by the British Columbia Ministry of the Attorney General.
PBLO has developed a model for a new civil law self-help centre, to be piloted in Toronto. Based on its experience, PBLO has found that – short of full representation being made available – unrepresented litigants require: assistance with pre-trial services (basic procedural information, help with completion of forms, summary advice that focuses on identification of legal issues and assessment of legal merits), trial services (representation) and post-trial services (information on enforcement and compliance).
With assistance from the Advocates' Society and the Ministry of the Attorney General's Pro Bono Task Force, PBLO has proposed a self-help centre at Toronto's Superior Court of Justice that would be staffed by a full-time, non-lawyer facilitator and a part-time staff lawyer. The proposed self-help centre would provide:
- Clear-language information and instruction on various Superior Court procedures, including enforcement and compliance (e.g., information kits on motions). The Ministry of the Attorney General's Pro Bono Task Force has agreed to assist in preparing plain language information material and resources.
- Referral information to existing programs and services (e.g., mediation).
- Assistance with completion of forms through the use of lawyer volunteers, online document assembly software or a combination of both.
- Summary advice and duty counsel services by volunteer lawyers, focusing on identification of legal issues and assessment of legal merits.
- Representation at hearings and settlement conferences by volunteer lawyers.
PBLO estimates the cost of the self-help centre to be approximately $235,000 for the initial start-up and the first year of operation. No funding source has been secured for the self-help centre pilot project.
Based on the success of self-help centres elsewhere and their growing use in jurisdictions throughout Canada, PBLO's self-help centre pilot project in Toronto would appear to be part of a practical and cost-effective solution to improving access to justice for those who cannot afford a lawyer.
During consultations, judges, lawyers, court staff and unrepresented litigants have all identified the need for basic plain-language procedural information, summary legal information and advice, and the ability to refer unrepresented litigants to other information sources and services as needed. The self-help centre would provide this support. Since not all persons with legal problems will require full representation, the self-help centre can offer assistance and advice proportionate to user needs. In many instances, early assistance by the staff facilitator or a volunteer lawyer will reduce inconvenience and frustration and potentially avoid the costs of litigation altogether. With online access, it is hoped that those outside Toronto will also be able to benefit from the centre's services. Furthermore, as a pilot, its success can be evaluated to allow improvements to be made prior to any expansion elsewhere in the province.
Recommendations (Unrepresented Litigants)
- Undertake an independent needs assessment study, guided by
a steering committee of civil legal service providers and
chaired by PBLO. Funding from possible sources, such as The Law
Foundation and the Ministry of the Attorney General
(“MAG”) should be explored. The objectives of the
study should be to:
- Develop a profile of civil unrepresented litigants in Ontario and their points of interaction with the civil justice system that give rise to difficulties for unrepresented litigants themselves, court administrators and the courts;
- Determine the legal needs of unrepresented civil litigants, the scope and accessibility of existing legal services and where additional legal services may be provided to fill service gaps, geographically and in substantive civil practice areas; and
- Recommend the most cost-efficient and -effective means of providing legal information and assistance.
- A committee of providers of legal information and resources
(MAG, PBLO, Law Society of Upper Canada, Legal Aid), chaired by
PBLO, should meet to coordinate the delivery of improved legal
information and resources in the following four areas:
- General information about the civil justice system and its structure;
- Step-by-step procedural information to assist unrepresented litigants;
- Summaries of substantive areas of the law that would be of greatest assistance to most unrepresented litigants in civil proceedings;
- Procedural information on enforcement and compliance with court orders.
- The committee should consider the most effective and accessible media for communicating this information to the public (e.g., printed material available at courts or community legal clinics; electronically through the Internet; or videotaped displays of court processes and acceptable court conduct).
- Bar associations and civil litigators should continue to implement and offer pro bono services and programs where possible.
- Ontario lawyers should be encouraged to consider new and innovative billing methods that promote access to justice for litigants with civil legal issues who would not otherwise be able to afford counsel.
- As part of the review of legal aid announced in 2006, the 1997 McCamus recommendations with respect to civil legal aid should be revisited.
- PBLO's efforts to develop a civil law self-help pilot project in Toronto should continue to be assisted by the Ministry of the Attorney General's Pro Bono Task Force. Funding from possible sources, such as The Law Foundation and MAG, should be explored. Expansion of the pilot project to other regions of the province should be considered pending an evaluation of its success, and after considering cost-effective service delivery options that are responsive to the needs of those who would otherwise be unable to access legal representation.