Chapter 6: Legal Aid in Context

A fundamental precept of this report is that the legal aid system must be viewed as part of the broader justice system. In the latter, we include the criminal justice system, the civil justice system, the administrative justice system, and a wide range of legal and regulatory instruments that may be deployed by the state to address existing or incipient legal problems and to pre-empt their escalation into legal conflicts or disputes requiring resolution in a formal adjudicative forum. We have several reasons for viewing the legal aid system as part of the broader justice system. First, while reforms to the legal aid system, including shifts in the mix of delivery models, have some potential for realizing various efficiency gains in the utilization of legal aid resources, our judgment is that these gains are likely to be quite limited relative to those to be realized by improving the efficiency and efficacy of the underlying justice system through appropriate substantive and procedural reforms.

Second, the legal aid system occupies a unique vantage point from which to view the operation of the various elements of the broader justice system. The large volume and wide diversity of problems and clients embraced by the legal aid system provide an opportunity to observe recurring patterns in the functioning (and systemic dysfunctions) of the system, and capped funding of the system provides highly concentrated financial incentives to minimize the cost to the legal aid system by promoting reforms to the underlying justice system that maximize its efficient and effective functioning. No other institution or set of individuals in Ontario, professional or otherwise, possesses, at least potentially, this body of systemic information or this acuteness of incentives. This combination of characteristics ideally equips the legal aid system to play a major role as a proactive change agent. One of the starkest shortcomings of the existing legal aid system in Ontario is that it has not assigned a central priority to this role, in part because with an open-ended budget, it has not been motivated to do so, and in part because, given the governance structure of the Legal Aid Plan, there may have been insufficient economic incentives (or even economic disincentives in some cases) to attack and eliminate unnecessary sources of complexity and prolixity in the justice system.

Third, by assigning a central priority to this change-agent role, the new legal aid system would acquire a new legitimacy and rationale with the general body of residents and taxpayers in the province of Ontario beyond its obvious response to needs and rights. Indeed, all Ontarians, including the very large percentage of the population who are unlikely ever to require the services of legal aid, should be able to expect that the legal aid system is mandated in such a fashion that taxpayers can properly view expenditures on legal aid as, in part, an investment in the quality of justice in the province for everyone.

Fourth, the symbiotic relationship between the legal aid system and the broader justice system requires emphasis in another respect: many of the reforms of the broader justice system noted below, such as alternative measures and diversion in the criminal law system, and case management more generally, can work effectively only if parties are legally represented. In the absence of such a relationship, these reforms are likely to be severely compromised, with adverse consequences for all participants in the justice system.

In the course of our deliberations, numerous proposals for substantive and procedural reform of the broader justice system were brought to our attention, many focusing on particular areas of law. As we lacked the time, resources, and specialized expertise to evaluate these proposals in a detailed or authoritative way, we can only list in summary form, by areas of law, the most prominent and potentially promising proposals that came to our attention; it should be recognized that this list is by no means exhaustive and that inclusion of any proposal on the list is not indication that we endorse it. Rather, the point of listing the proposals is to underscore our strongly held view that the existing justice system should not be taken as a given in redesigning the legal aid system, when a significant amount of legal aid resources goes to subsidize or underwrite existing inefficiencies in the underlying justice system. Instead, the new legal aid system should become a major institutional focus for evaluating ideas that have been advanced in the past, and will be advanced in the future, for substantive and procedural reforms to the broader justice system. These are likely to have a much more dramatic impact on the cost of the legal aid system than any reforms of that system we can propose. They will, in addition, generate pervasive benefits for all Ontarians who come into contact with the justice system. In the remainder of this chapter, we list some of these proposals by area of law and offer our conclusions and recommendations.

REFORM OF THE CRIMINAL JUSTICE SYSTEM

Professor Alan Young, in a research paper prepared for the Legal Aid Review, argues that, throughout this century, there has been an increasing reliance on the criminal process to resolve problems. The evolution of new social problems has tended to result in the criminalization of related conduct without consideration of whether the problems could be solved or contained through other methods of state control. In addition, the 1980s witnessed an explosion in court delays, some of which can be attributed to the fact that the Charter of Rights and Freedoms introduced a wider array of new procedural defences. The combination of increased reliance on the criminal process and the entrenchment of procedural rights culminated in the so called Askov crisis of the early 1990s.

The Askov crisis and the demands of a constitutionalized process have spawned a series of proposals to effect improvements in case management. Professor Young is skeptical about the efficacy of attempts at case management in Ontario to date, pointing out that the number of court appearances for a guilty plea is almost the same as for a contested trial, and the number of appearances required for the withdrawal of charges is also similar to the number of appearances for trial. Professor Young argues that relatively minor offences constitute the majority of all criminal charges which remain within the court system. In Professor Young's view, if charge screening, diversion, and conditional sentencing were to be implemented effectively and administered by the Crown, there would be considerable savings for the legal aid system. Ron Levi, in a research paper prepared for the Legal Aid Review on young offenders, endorses a similar set of proposals in that context. In 1993, the Attorney General's Advisory Committee on Charge Screening, Disclosure, and Resolution Discussions (the Martin Committee) advanced a wide range of reform proposals in these areas, some of which have been implemented. Another proposal that Professor Young endorses is repeal of the preliminary-hearing process for indictable offences, provided that an effective pre-trial discovery process is established to replace the discovery function of the preliminary hearing.

In a June 1992 report of the Criminal Law Tariff Review Sub-Committee of the Legal Aid Committee of the Law Society of Upper Canada, a number of more particular proposals were advanced for improving the administration of the criminal justice system. These included improved change screening, Crown disclosure, alternative measures for young offenders, and expansion of hybrid offences (now implemented, in part, by federal amendments to the Criminal Code).

While some of these proposals have been acted on, the Legal Aid Committee of the Law Society of Upper Canada at a meeting on May 7, 1997, adopted a set of proposals that have many similarities to those outlined in the June 1992 report:

  1. Pre-trial conferences: Defence counsel are now required to attend in person for pre-trial conferences, when they could be conducted by phone. Defence counsel are using up valuable time on the limited tariff waiting to attend these meetings.
    Pre-trial conferences should be set for specific times and conducted by telephone or video teleconference whenever possible.
  2. Crown screening: This policy has been in place for three years now and allows Crown attorneys to review charges before an accused person's first appearance. The Crown can then decide which charges to proceed with and which are not worth pursing, thus saving the accused's lawyer preparation time.
    The policy has been successful in reducing legal aid fees paid to lawyers. However, in too many jurisdictions, Crown attorneys are not doing this screening thoroughly, so that too many charges are going forward to court. In some cases, junior Crown attorneys are conducting charge screening and are not experienced enough to make decisions.
    Experienced Crown attorneys should conduct charge screening on a consistent basis across the province.
  3. Releasing accused persons from jail: Recent changes to the Criminal Code of Canada have allowed more accused people to be released directly from the police station by way of an appearance notice, a promise to appear or recognizance, rather than being held overnight for a bail hearing the following day. This policy has been unevenly implemented across the province and has caused added expense to the Plan for unnecessary bail hearings.
    Whenever possible, people in jail should be released by way of an appearance notice, a promise to appear or recognizance, and not held for bail hearings, in keeping with the recent Criminal Code amendments.
  4. Diversion and alternative measures: These can prevent costly court and trial times, but are being used inconsistently across the province.
    Crown attorneys should consider diversion and alternative measures whenever possible.
  5. Inexperienced Crown attorneys: Too many inexperienced Crown attorneys are prosecuting large, complex cases. They are not able to identify the real issues of the case, and are therefore less able to settle cases and resolve them out of court. This is costing the Plan money in court time and longer trials.
    Experienced Crown attorneys should be assigned to deal with large, complex cases.
  6. New provincial court rules: As of January 1998, new Provincial Court rules will be implemented. These may cut into a lawyer's ability to properly represent a legal aid client if the lawyer's time is taken up with extra paperwork, leaving less time on the legal aid tariff to actually represent the client.
    Simplify the rules to eliminate as much paperwork as possible.
  7. Conspiracy charges: Lawyers are concerned that Crown attorneys are tending to prosecute conspiracy charges rather than substantive charges which might require more or tighter evidence. Conspiracy trials are longer and more expensive.
    Crown attorneys should concentrate on prosecuting substantive charges as opposed to conspiracy charges.
  8. Fees for disclosure: Due to severe province-wide cutbacks to the court and law enforcement budgets, new fees are applied to more things. Defence counsel are being charged for tapes, transcripts, and photocopying of disclosure materials. This is inappropriate because accused people have a legal right to know what evidence the state intends to use against them.
    The policy of charging fees has also been used inconsistently across the province, with little predictability. Many of these charges are being introduced in an ad hoc manner by police. However, they have a real impact on the rights and the accused person, as well as on the costs of the Plan. For example, defence counsel are now being charged to obtain a judge's order allowing a prisoner to be brought to court for a bail review.
    Police should not be making their own policies about charging fees for the release of disclosure documents and, generally speaking, should not charge for disclosure. If it is considered desirable to have fees for extra or expensive materials (videotape evidence), the fees should be set after consultation, published, consistent, and adhered to across the province.
  9. Subpoenas on northern reserves: The Ontario Provincial Police (OPP) will no longer serve subpoenas on northern reserves, nor will they transport witnesses from remote areas to court. Defence counsel and legal aid are increasingly bearing these costs.
    The OPP should serve subpoenas on northern reserves and should provide transportation from remote areas.
  10. Use of the media: Crown attorneys are making decisions on cases based on their perception of how the media will react, rather than making decisions based on the merits of the case. This is resulting in more trials, and Crown attorneys seeking tougher sentences than normal to appease the media.
    Crown attorneys should make decisions independently, based solely on the merits of the case, regardless of how the media might react.
  11. Inadequate court facilities: Some court facilities make it very difficult for counsel to carry out their duties, and may risk the privacy and safety of those in custody. Very often duty counsel can interview clients only in the dock or in the courtroom.
    Duty counsel should be able to interview clients in custody properly, with a reasonable degree of privacy.

Members of the Ontario Court of Appeal and representatives of the Crown Law Office, criminal defence bar, and the Plan have also held recent discussions aimed at streamlining criminal appeals by reducing documentation requirements and tightening scheduling of cases to reduce "double preparation" time. Beyond proposals of this kind, the Globe and Mail on June 20, 1997, reported that the Ontario government and two of the province's chief justices are set to launch a review of every aspect of the provincial criminal justice system with the aim of eliminating costly delays and cumbersome procedures.

REFORM OF THE FAMILY LAW JUSTICE SYSTEM

Professors Brenda Cossman and Carol Rogerson, in a case study prepared for the Legal Aid Review, extensively discuss a number of substantive and procedural reforms to family law and policy that may have pre-emptive potential in terms of reducing demands on the legal aid system. They summarize the conclusions that they reach from this evaluation as follows:

(i) Early legal and judicial intervention:

The various initiatives that encourage early legal intervention, and in turn early judicial intervention, offer the most promise for ensuring that family law disputes settle as early, fairly, and inexpensively as possible. Recent initiatives that emphasize this early intervention, such as mandatory informational sessions and case conferences before any motions (except emergencies) can be brought, should be supported and monitored.

(ii) Mediation:

Mediation may have an important role in assisting some family law litigants resolve their disputes. But it is not and cannot be a panacea for family law problems and needs. Many family law disputes will require judicial intervention, and cannot be completely diverted away from the court system. When mediation is done properly, with the appropriate legal assistance and protections for vulnerable parties, it is unclear whether it will generate major cost savings.

(iii) Case management:

When family law disputes do enter the judicial arena, case management will be an important means of ensuring against delays, and encouraging the parties to settle their disputes within the boundaries established by the case management judge. The early judicial intervention provided by case management will be particularly essential for resolving disputes that are higher conflict-that is, where the parties were unable to settle the dispute themselves, and where mediation of the dispute would be inappropriate.

(iv) Public legal education:

A greater emphasis on and availability of educational materials, including parenting education seminars and courses, can help individuals with family law disputes understand, negotiate, and ultimately resolve their family law problems.

(v) Coordination:

There is a need for much greater coordination within the family law justice system. Various positive initiatives are being pursued in a piecemeal fashion by a host of different actors within the system. These very encouraging initiatives could benefit greatly from coordination within the family law justice system as whole. Greater coordination and integration of the family law justice system would be greatly facilitated by the extension of Unified Family Courts throughout the province. A Unified Family Court-a family court with jurisdiction under both federal and provincial statutes to deal with all aspects of family law-was first established in Hamilton in 1977. The Unified Family Courts in Ontario was extended in 1995. Unified Family Courts are now located in Hamilton, London, Barrie, and Kingston. The provincial Attorney General has recommended the extension of the Unified Family Courts throughout Ontario, and has been seeking the financial support of the federal government for this expansion. In the 1997 federal budget, the federal government announced its intention to support the provinces in establishing and expanding Unified Family Courts. However, the process will take place in stages, which, in the interim, will leave three different classes of family law courts operating in the province.

The ability to deal with all aspects of family law in a single court, along with innovative court procedures, and court-annexed support services has made the Unified Family Courts very successful and effective. Adopting the less formal procedures characteristic of Provincial Courts, with the expanded jurisdiction of the General Division, has made the Unified Family Courts more accessible than the General Division, while providing in one location a more expanded jurisdiction than that of Provincial Court. These highly specialized, one-stop Family Courts avoid the confusion that results from the division of jurisdiction over family law matters between the Provincial Courts and the General Division. Individuals with family law problems need go only to one court, with one set of procedures and one set of forms. Many of the difficulties and confusions of the dual court system (such as choosing the right forum/switching forums as the proceedings develop, and using different procedures and different court forms) are thereby eliminated. Further, these Unified Family Courts have the advantage of being able to use duty counsel, which, within the dual court system, is available only in Provincial Court, and not in the General Division. The Unified Family Court is a more accessible, efficient and sensible court structure for family law. Professors Cossman and Rogerson endorse the views expressed by the Civil Justice Review and the Family Law Working Group, among others, that the Unified Family Court should continue to be expanded across the province as soon as possible.

The Civil Justice Review in its First Report recommended that an information-services video be prepared with respect to family law matters for distribution through community resource centres, shelters, legal aid clinics, courts, and law offices, and also that, except in emergency situations, it be mandatory for parties contemplating family law litigation to view the video prior to instituting court process. The Civil Justice Review also recommended that: an early, streamlined session/evaluation process involving the early intervention of the judge be adopted in the expanded Unified Family Court sites; the Plan consider the development of legal education programs for lawyers providing family law services and make the granting of legal aid certificates to lawyers representing family law clients conditional upon participation in such programs or upon some other form of accreditation; and administrative, low-cost options without judicial involvement be developed for the disposition of purely uncontested divorces. Some of these proposals for a "resolution-focused process" for family law were refined and elaborated in the Civil Justice Review's Supplemental and Final Report. A Family Law Working Group has been constituted since the release of the Civil Justice Review's First Report for the purpose of developing and implementing the Review's proposals.

In the June 1992 Report of the Family Law Tariff Review Sub-Committee to the Legal Aid Committee of the Law Society of Upper Canada, a number of proposals were advanced for streamlining the administration of the family law justice system. Many of these proposals were taken up again in a recent report from the Legal Aid Committee of the Law Society of Upper Canada (May 7, 1997):

  1. Case management: Case management has saved time and money by bringing the two parties together and eliminating unnecessary court actions. Province-wide implementation, with case-management officers in each court to schedule meetings, would allow the bench more time to conduct these meetings.
    Implement case management province-wide and use case-management officers to schedule meetings.
  2. Unified Family Courts: Creating unified family courts across the province would simplify legal proceedings, especially in cases where an order is being enforced in one court while needing a variation in another. One court, one set of procedures, and one set of forms would greatly reduce costs.
    Create Unified Family Courts province-wide, with one set of procedures and one set of forms.
  3. Changes in legislation and other court procedures: The Plan should be consulted by government when new legislation will require extra work and time on the part of lawyers. Likewise the Plan can be a valuable participant in discussions about changes to other court procedures such as the scheduling of motions, motion records, and robing for court.
    Consult with the Plan when new requirements and procedures may require lawyers to spend more time.
  4. Court intake workers and bailiffs: Although eliminating court intake workers and bailiffs may have saved money in one branch of government, it has driven up costs to other branches of government and the Plan since more clients are unrepresented or ill advised. Many times, documents are badly prepared because help at intake is no longer available. This causes delays in the courts, while everyone wastes time and money trying to sort things out. With no bailiffs, instances of fraud have increased, and some clients are being placed in a dangerous situation, having to serve papers themselves.
    Maintain court intake workers and bailiffs to assist clients before they reach the courtroom, thereby saving time and money for lawyers, the judiciary, and other court workers.
  5. Court filing fees: The fee to file a notice of motion, for example, has recently increased to $75. This drives up the cost of legal aid.
    Roll back higher court fees or provide legal aid with more government funding to cover these costs.
  6. Waiting times: Significant amounts of legal aid funds are paid to lawyers who must wait in courtrooms because court appearances are not scheduled sequentially. Court scheduling is ruled by an archaic system which requires that all clients and their lawyers show up at the same time for all court appearances that day. Savings can be achieved by staggering court appearances throughout the day, thereby allowing clients and their lawyers to appear in court with some expectation that their case will be heard without too much delay.
    Another example of waste is the motion lists in the General Division, which allow standard civil litigation motions be heard, followed by something completely different such as a landlord- and tenant-trial, followed by family matters at the end of the day, when time permits. By scheduling similar types of motions on the same day, schedules could be more predictable.
    Stagger court appearances throughout the day to give lawyers a shorter waiting period in court. Schedule similar motions on the same day, to allow for a more predictable schedule.
  7. Awarding costs: Costs should be awarded more frequently in family law matters. They should be assessed on the spot at the end of the motion and ordered to be paid immediately. Allowing the Plan to collect costs directly from the other party, without having to rely on the collection efforts of the legal aid client, would ensure that costs are routinely recovered.
    Award costs more frequently and allow the Plan to collect costs directly from the other party, without the help of the client.

REFORM OF THE REFUGEE DETERMINATION PROCESS

Professor Audrey Macklin, in a research study prepared for the Legal Aid Review identifies several features of the refugee determination process that impose additional costs on the legal aid system, most notably problems of scheduling and negligible use of the expedited claim process by the Immigration and Refugee Board (IRB) in Toronto.

With respect to scheduling, the standard practice in Ontario is that IRB Members sit in panels of two. They do not sit consistently with the same member or Refugee Hearing Officer (RHO). Lawyers can appear before a different panel every day of the week. Lawyers who appear before the IRB report that delay in hearing a claim is a major contributor to their costs. The lag time between referral of a claim to the IRB and the date of hearing averages about six to eight months. However, the rate of adjournments and postponements in Toronto is around 40 percent. The situation in Ottawa is, if anything, worse. This means that cases either do not begin or do not finish on the original hearing date. Once adjourned or postponed, the case may take several months to be rescheduled, because it can be difficult to find a date when both members, the RHO, the claimant, and counsel will be available.

The longer the wait for the original hearing, and the longer the interval between postponement or adjournment and resumption, the more time the lawyer must spend with the client reviewing the file, refreshing the client's memory, and preparing the client. If the panel requests additional information or raises a new issue before adjourning a case, the lawyer must invest more time researching and preparing this aspect of the case.

The IRB has experimented in other regions with different methods of organizing and scheduling cases. For example, a system instituted in Montreal appears to have had the effect of significantly reducing the rates of adjournments and postponements in that office. Two panel members and an RHO are paired for a cycle of three months, and assigned a batch of files that are ready to proceed to hearing. An attempt is made to distribute all the files from a given lawyer to a particular panel, so that a given panel works with a limited number of lawyers. The files are reviewed, and the cases are scheduled in accordance with estimates by the panel and counsel regarding how long the hearing will take. As much as possible, all files of a single lawyer will be scheduled back to back. A few days may be left free at the end of the schedule to allow for completion of cases that exceed the allotted time.

The objective of the three-month cycle is to complete all cases that are commenced. Once the three-month cycle begins, if individual cases are not completed in the allotted time, the panel members and counsel may agree to "bump" another of the counsel's cases to complete the one which has commenced, or utilize one of the empty slots to complete the case. The net effect is that cases are begun and finished within the three months. Because of the flexibility in scheduling, cases which are likely to require more than a half-day will be scheduled accordingly. Cases which have to be adjourned due to lack of time will be rescheduled within days or, at most, a few weeks. This diminishes the need for additional preparation time between hearings.

With respect to expedited refugee claims, the IRB, in most regions of the country, utilizes an expedited process for claimants from countries with very high acceptance rates or individual claimants with a profile that suggests a high likelihood of success. Instead of proceeding to a full hearing, expedited claims are determined on the basis of a relatively short (thirty to forty-five-minute) interview with the RHO. However, as of March 1997, the Toronto offices of the IRB have virtually ceased diverting claims to the expedited process, imposing significant additional costs on the legal aid system. In other centres throughout Canada, expedited claims account for between 40 percent and 85 percent of all positive determinations.

In terms of other factors having an impact on cost and delay, in early 1994 the Minister of Citizenship and Immigration announced his intention to amend the Immigration Act to move from two-member panels to single-member panels in refugee determination cases. Parliament consistently failed to act, and the bill died with the dissolution of Parliament in spring 1977. Obviously, moving from two-member to single-member panels would automatically increase the number of panels available to render decisions. Assuming that more RHOs were hired, the IRB could dramatically cut into its backlog and shorten the lag time between filing of the application and the hearing. Such an initiative could also reduce the requisite preparation time, thereby reducing the Plan's cost of counsel. The reason for the federal government's failure to act on its stated intention in over three years is unclear.

REFORM OF THE CIVIL JUSTICE SYSTEM

Reform of the civil justice system in Ontario has recently been the subject of extensive study and two reports by the Civil Justice Review, and a series of background papers undertaken under the auspices of the Ministry of the Attorney General and the Ontario Court of Justice. The Canadian Bar Association has also recently completed a major review of the civil justice system. A similar review of the British Civil justice system has recently been completed by Lord Woolf. In its First Report, the Civil Justice Review developed an extensive set of proposals based on certain central concepts: creation of a unified administration, management and budgetary structure for the court system in Ontario; judicial case-flow management with disposition of cases within predetermined time deadlines from the date of filing; court-connected alternative dispute resolution (ADR); mandatory settlement conferences and trial management conferences; and substantial enhancement of information technology and statistical assistance to improve the management of the civil justice system. In its Supplemental and Final Report, the Civil Justice Review recommended mandatory referral of all civil, non-family cases to a three hour mediation session, to be held following the delivery of the first statement of defence with a provision for "opting out" only upon leave of a judge or case-management master, the session to be conducted by a mediator selected by the parties from a list of accredited mediators, or, failing agreement by the parties, by a mediator selected from that list by a judge or case-management master. Other proposals contemplate the creation of an administrative tribunal for the resolution of landlord-and-tenant disputes, which are currently handled by the courts.

In research papers prepared for the Civil Justice Review under the auspices of the Ontario Law Reform Commission, a number of other proposals are developed. Professors Robert Howse and Michael Trebilcock, "The Role of the Civil Justice System in the Choice of Governing Instrument', suggest that the civil justice system be viewed as only one instrument available for addressing legal problems. In a wide range of contexts, other legal policy instruments are available to government either to pre-empt disputes or to divert them into other channels. For example, in the case of medical malpractice claims, rather than relying predominantly on the tort system, implementing quality-control and risk- management systems, particularly in institutional settings, where most medical malpractice claims arise, is likely to reduce significantly the incidence of such claims. For remaining claims, an administrative compensation scheme appears to have a number of advantages over the tort system. In the case of civil claims arising out of traffic accidents, the incidence of traffic accidents is likely to be significantly reduced by measures such as raising the drinking age and the driving age; probationary licensing regimes with conditions attached such as limits on the number of passengers than can be carried by recently licensed drivers and curfews on night-time driving; and mandatory installation of passive restraint systems (airbags). With respect to compensatory claims that arise with respect to traffic accidents, diverting these claims out of the courts into some form of administrative (no-fault) compensation system is likely to reduce substantially public and private transaction costs. If merchants are found to be exploiting consumers in particular marketing contexts, then some extension of the cooling-off or cancellation period that already applies to door-to-door sales may provide consumers with an effective, low-cost, self-executing remedy that avoids the private and public costs of pursuing civil claims. With respect to workplace accidents that may give rise to workers' compensation claims, enhanced powers for Joint Worker-Management Safety Committees and more effective regulation of workplace hazards are likely to reduce the incidence of workers' compensation claims. Thus, if data collected by the new legal aid system were to disclose heavy concentrations of claims in particular legal contexts, in addition to options entailing streamlining the processing of these claims through the civil justice system, consideration should be given to other legal and policy options that may pre-empt a significant number of such claims.

Professor Kent Roach, in a research paper for the Civil Justice Review, "Fundamental Reforms to Civil Litigation", develops detailed proposals for: streamlining the pre-trial process, which at present consumes more judicial time than do trials; alternatives to hourly billing, such as contingency fees and fixed litigation budgets; greater disciplinary use of cost rules to penalize for unnecessary motions and procedures; experimentation with user fees to internalize the cost of certain types of litigation to the parties; greater use of applications rather than full actions through the imposition of user fees on actions or the imposition of cost sanctions on actions that could have been decided by way of application; the adoption of a summary trial procedure; and adoption by appellate courts of appropriate procedures for identifying areas of law that need to be clarified in order to increase settlement rates and for consolidating cases that raise these issues.

Professor Iain Ramsay, in another research paper for the Civil Justice Review, "Small Claims Court: A Review", argues that, since the Small Claims Court is the court most often encountered by the ordinary person, it is an important symbol of the legitimacy of the justice system. However, in fact, to an important extent, the Small Claims Court performs the primary function of a debt collection court. Ramsay proposes that: performance standards should be developed for the disposition of small claims cases and that there should be periodic attempts to measure the quality of service provided by the various personnel in these courts; since individuals are often disadvantaged by current rules which allow organizations to sue in distant venues, actions against individuals should generally be heard in the defendant's own community; there should be greater imagination in the appointment and training of Small Claims Court judges-there is no reason that secondment to this court for two or three years could not be an attractive option for younger members of the bar; it may be possible to generate a differential pricing structure for repeat users (particularly creditors) of Small Claims Court so as to avoid public subsidies to credit provision and collection; experiments with the use of duty counsel in Small Claims Court should be extended (that is, through the use of student lawyers or articling students); and there should be permanent advice centres in larger courts.

Apart from reforms to Small Claims Courts, Ramsay also reviews a number of recent developments in consumer markets involving alternative forms of dispute resolution, including arbitration and mediation operated by industry, ombudspersons, and hybrid industry/government redress mechanisms. Examples in Ontario and elsewhere include arbitration plans in the automobile and new-home industry, a compensation scheme in the travel industry and ombudspersons in the financial-services industry. These informal consumer redress mechanisms seem to have a mixed record, at least as measured by surveys of participant satisfaction. Clearer standards or bright-line rules, improved appointment and other process requirements to ensure a fairer adjudication process, and adequate publicity of patterns of unacceptable practices are likely to enhance the effectiveness of these regimes.

Margot Priest, in another research paper prepared for the Civil Justice Review, "Fundamental Reforms to the Ontario Administrative Justice System", addresses the large role played by the administrative justice system in the day-to-day lives of the residents of Ontario, whether measured by the number of regulatory agencies that adjudicate rights and entitlements between individuals or between individuals and the state, or the cost of the administrative system, or the number and range of decisions made by agencies within the system. Priest develops proposals that would treat the administrative justice system as a single system: administrative agencies must have adequate case-management techniques, including methods of identifying major or urgent cases; administrative agencies should be encouraged to use generic policy proceedings and be granted rule-making powers to be exercised through a public consultation process; administrative agencies should publish annual statements of priorities in consultation with affected groups, the minister, and administrative officials; agencies should be encouraged to continue the use of and experimentation with alternative dispute resolution techniques; appeals from decisions of administrative agencies to the courts should be eliminated or curtailed, leaving judicial review for procedural irregularities as the principal form of judicial supervision of the administrative justice system; an Ontario Administrative Justice System Council should be established to deal with such matters as discipline, investigation of complaints, performance appraisals, training, and ongoing policy and research on administrative justice; the process of appointments to administrative agencies should be depoliticized with the creation of a body modelled on the Ontario Judicial Appointments Advisory Committee; and rationalization initiatives, such as more extensive use of cross-appointments, and the merger or co-location of families of agencies with similar missions should be encouraged.

CONCLUSIONS

This sampling of proposals for substantive and procedural reforms of the criminal, civil, and administrative justice systems suggests that, while public resources for the administration of these systems and the legal aid system may be scarce, ideas for improving their performance are not. Moreover, substantial consensus appears to exist with respect to a number of these ideas. However, the criminal, civil, and administrative justice systems are large, sprawling, and unwieldy, and are weakly coordinated and often afflicted with vested interests in the status quo, and ingrained habits of thinking and acting that inhibit serious systemic change. In addition, two levels of government must often agree before there can be changes to these systems, given significant federal jurisdictional involvement in criminal law, family law, and immigration law. In the past, reform efforts have been too episodic and cataclysmic in character, typically precipitated by perceived crises in these systems (such as "out-of-control" court back-logs). However, effective reform efforts require a continuous focus on incremental or marginal changes through ongoing design, experimentation, implementation, and evaluation exercises. Widely representative institutionalized change agents are required to move these systems in more productive directions. As the Civil Justice Review recommended, a widely representative, unified administrative, management, and budgetary structure for the court system in Ontario may provide a desirable institutional focus and impetus for reforms to the court system. As Margot Priest argues, a similar structure may be required for the administrative justice system. An important complement to these structures would be a proactive legal aid system which is assigned, as one of its major priorities, identification of systemic dysfunctions or deficiencies in the justice system; develops, evaluates, and publicizes reform proposals; and acts as an institutional advocate to the legal profession, the judiciary, the public, and governments in developing support for systemic reforms. This role for the new legal aid system would become even more important if these other institutional foci do not materialize.

RECOMMENDATIONS

  1. The legislative mandate for the legal aid system should assign a high priority to its role as a proactive change agent in researching, developing, publicizing, and promoting substantive and procedural reforms to the broader justice system; in turn, the system should develop the necessary human-resource capabilities (internal and external) to play this role effectively.
  2. The chief executive officer of the legal aid authority should develop close institutional linkages with other partners in the justice system including the governance bodies of any new unified administrative agency for the courts and any unified administrative justice system agency that might be created.
  3. The Ontario legal aid authority, either alone or, preferably, in concert with other provincial legal aid agencies, should develop reform proposals that require federal cooperation, and apply pressure on the federal government to be responsive to these reform proposals (rather than externalizing the costs of any existing inefficient federal proceedings onto provincial legal aid plans).