Section VII: Innovations In Service Delivery
As I noted in the earlier section on LAO's notable achievements, beyond the increased use of staff delivery systems, LAO has not been particularly innovative in service delivery. I am aware that LAO has often faced a certain amount of resistance to change from its service providers, which has undoubtedly hampered some of its attempts to be innovative. However, as I have noted elsewhere, it is critical to the health of the system that LAO experiment with various methods for delivering quality legal aid services to its clients.
We are now well beyond the debates of previous decades about the merits or cost-effectiveness of particular models for the delivery of legal aid services, whether these delivery models be based on the private bar, staff lawyers, clinics, or other variations. It is also now clear that there is no silver bullet, no previously unimagined idea that will reveal the best, most efficient and most cost-effective means of delivering legal aid in all contexts. In the face of the serious issues confronting the legal aid system that I outlined in the previous section, it becomes increasingly important that LAO be much more strategic, innovative and experimental in its approach to service delivery.
I begin in this section by evaluating the range of existing mechanisms and suggest areas for improvement or enhancement. I then review other innovations or alternatives worthy of consideration. These innovations, in particular, are directed at addressing the issues I outlined earlier: the increasingly serious problem of unrepresented litigants and the lack of universally available, non-means-tested forms of summary information and assistance. Next I discuss empirical studies in various jurisdictions that demonstrate the need for greater integration in legal aid services. Finally, I set out potential areas of exploration to address the serious emerging issues in family justice services.
I. BUILDING ON CURRENT INITIATIVES
a) Duty Counsel
Duty counsel services have been shown to be high quality and cost-effective, particularly where staff duty counsel are utilized. Since duty counsel services focus on a more limited set of functions than the private bar, duty counsel have developed a very high level of expertise and specialization.
The expanded duty counsel (EDC) and supervisory duty counsel/Duty Counsel Office (DCO) programs appear to be particularly effective. Not only do EDCs show promising results in the early resolution of cases, but they also address some of the traditional limitations of duty counsel, such as the lack of file continuity and strong relationships between lawyer and client. LAO should continue to pursue opportunities to use staff duty counsel where feasible, in both criminal and family courts. In particular, LAO should explore the potential for duty counsel to provide more, and more varied, pre-litigation services, especially in family law. I encourage LAO to think more innovatively and creatively about the services that could be provided by this valuable resource.
I have not seen strong evidence that the scope of duty counsel functions should be broadly expanded to include conducting trials. In very limited circumstances (i.e. where there is a demonstrated shortage of private lawyers willing to take cases on certificate) it may be appropriate for staff duty counsel to take on trials in those court locations where there are supervisory duty counsel and file continuity. The greatest potential for such expansion is likely to be in short criminal matters, which should therefore be the first area of exploration for LAO.
In its submission to me, LAO noted that the recent creation of a regulatory and licensing regime for paralegals in Ontario gives LAO a significant opportunity to expand the use of paralegals within the legal aid system. Community clinics in Ontario have considerable experience using paralegals ("community legal workers") to provide client services. LAO's staff offices have also used paralegals successfully. The remaining parts of the legal aid system have yet to use paralegals to their full potential. LAO has stated its commitment to exploring that potential and to expanding the use of paralegals where it is appropriate and cost-effective to do so, and I strongly endorse this commitment.
c) Staff Offices
Evaluations of staff offices appear to conclude that they do not provide services as cost-effectively as the private bar. However, the assessment of the cost effectiveness of staff offices compared to the certificate system in the criminal law context suffers from several limitations. Obviously, the assessment has to confront the problem of endogeneity, i.e., any assessment of the cost effectiveness of the staff offices is contingent on prevailing tariff rates for certificate lawyers and prevailing salaries for staff lawyers. If either of these financial parameters were changed, the cost effectiveness assessment might well change in favour of either the staff offices or the certificate system.
Setting aside this element of contingency in the assessment, I note that the staff offices appear to process cases with slightly fewer billable time inputs than the certificate system, but the differences are not substantial. One limitation here is that the staff offices are extremely small, so that full economies of scale and specialization may not have been realized. However, on balance, the case has not been made for extending the criminal staff office concept, at least as currently constituted, more broadly through the legal aid system in servicing criminal justice clients. The existing staff offices serve the useful function of filling in niches in the market in servicing the needs of especially vulnerable clients (e.g. those with mental health issues) or providing criminal law services where lawyers are not available for certificate work. In addition, the existing criminal law offices provide LAO with a useful window on this segment of the legal aid services market by yielding independent observations on appropriate hourly allocations to various criminal proceedings under the certificate system, thus justifying existing staff offices continuing to provide a limited volume of criminal legal aid services in areas covered by legal aid certificates.
The evaluations of staff offices are similar on the family law side. I note, however, that in comparison to the CLOs, which do not generally enjoy the support of the private criminal law bar, the family law bar appears to regard very positively the services provided by the FLOs, and views the staff offices as a complementary service, rather than a competing one. Similar to the CLOs, the FLOs tend to be a place of last resort, taking on some of the hardest cases, and therefore provide a useful function of filling in gaps in the market. However, in light of the frequent commentary as to the serious difficulty family law litigants face in finding lawyers to accept legal aid certificates (particularly for child protection matters or in rural communities), there may well be a strong argument for expanding the number of family law offices. In order to be cost effective, and depending on the size of the community in which they are based, the additional offices may need to be smaller and have more flexible and innovative staffing arrangements. Family law offices have strong potential to provide integrated, holistic services to clients, and I recommend that LAO closely monitor statistical data-i.e. lawyer participation rates, acknowledgement rates, the elapsed time from the issuance of a certificate to when it is accepted by a lawyer, and the number of unrepresented litigants in family law court proceedings-to ascertain which communities in Ontario may most benefit from FLO services.
II. ENHANCING ACCESS TO JUSTICE
In Section VI - A Framework for Evaluation - I describe at length a serious political economy problem: the working poor, lower middle-income, and middle-class citizens of Ontario largely underwrite, but do not benefit from the legal aid system; at the same time, they have limited access to the justice system generally. In the Civil Justice Reform Project, the Honourable Coulter Osborne described the challenges facing unrepresented litigants, and noted in particular the growing gaps in civil legal aid services. 1 As I suggested earlier, there ought to be a much more integrated system for providing low-cost information and summary advice services to a broader range of citizens than is currently available. Comparable experience in other jurisdictions reveals that these sorts of services are most often delivered through advice centres and technological solutions involving websites or telephone hotlines.
In addition to these ideas, I briefly discuss private insurance for legal expense coverage as another means of enhancing access to justice, and I mention but do not recommend, competitive block tendering.
a) Advice Centres
The United Kingdom's Citizens Advice Bureaus (CABs) provide an interesting example of a response to its citizens' social and legal problems. Since 1939, CABs have provided a central location for people to seek information and advice on financial, legal and other problems. It promotes the motto "Advice changes lives", and is the largest advice-giving network in the UK. The CAB service is known by 96 per cent of the public and 41 per cent of the general public has used the service at some point in their lives.
Services described on its website 2 include:
- advice on virtually anything from benefit claims to unfair dismissal, debt and housing rights;
- writing letters and making phone calls to companies and services providers on behalf of the client;
- assisting with prioritizing debt and negotiating with creditors; and
- referrals to specialist case workers and specialist advisers who can represent people at courts and tribunals
Services are free, independent, confidential and impartial, and are provided in person, over the telephone, by email, online, at interactive kiosks, on DigiTV, as well as through home visits. Most bureaus also provide advice in public places, such as health centres and hospitals, legal settings, prisons, and courts community venues. The public information and advice website is available in both English and Welsh, and it also includes a frequently asked questions section in Bengali, Chinese, Gujarati, Punjabi, and Urdu. The CABs rely heavily on the services of volunteers, as well as paralegals.
CABs help people deal with nearly 5.5 million problems every year. Most client issues in England and Wales have involved matters related to benefits and debt. CABs reported that 1,500,000 client matters pertained to benefits and 1,437,000 related to debt issues. CABs also provided assistance with issues of employment (473,000 matters), housing (402,000 matters), and, general legal issues (294,000 matters).
I also note the example of the Alaska Legal Services Corporation (ALSC), which makes use of volunteer lawyers to assist in providing financially eligible clients with a one-time free consultation. Pro bono lawyers also assist with a series of legal clinic workshops that ALSC organizes that are offered to the general public irrespective of income levels in areas such as family law, bankruptcy and landlord/tenant.
Another model that Ontario could look to is the recent introduction in British Columbia of central information hubs, based on the recommendations of the B.C. Family Justice Reform Working Group 3 and the B.C. Civil Justice Reform Working Group 4. Under the rubric "Justice Services Centre", these hubs provide people with information, advice, guidance and other services to prevent and solve legal problems as early as possible. The legal issues dealt with might include debt, consumer, housing and any other civil or family law matter. 5
b) Technology and Legal Services
LAO acknowledges that it lags behind other jurisdictions in Canada and the United States in its use of technology as a means of improving legal aid services. In a number of jurisdictions, legal assistance is provided through (i) online and telephone legal information and education, and (ii) legal advice hotlines.
i) Online and Telephone Legal Information
British Columbia has recently made efforts to provide information to its harder to reach citizens by utilizing technology. One example is British Columbia's LawLINK, which helps people facing legal problems find legal information on the Internet. In order to facilitate access to the service, B.C.'s Legal Services Society (LSS) set up LawLINK computer kiosks in a variety of locations, including all LSS regional centres, some local agent offices, and some courthouses and community agencies. The locations also provide direct telephone access to LawLINE, B.C.'s legal advice hotline, which I discuss below. Legal information outreach workers help people use LawLINK to find legal information and self-help kits on the Internet; give people printed legal information; refer people to other LSS services such as LawLINE and the Family Advice Lawyer Project, and other related community services; and collect feedback from community workers and the public about LSS programs.
Alberta has a "Dial-A-Law" service, which provides recorded legal information on more than 100 legal topics. Similar services are offered in Newfoundland6 and Nova Scotia7. In the United States, Virginia's Blue Ridge Legal Services, Inc. offers a toll-free legal aid helpline, after business hours, that provides pre-recorded legal information.
ii) Legal Advice Hotlines
A number of jurisdictions provide legal advice by telephone. These legal aid "hotlines" provide a caller with advice from a lawyer or paralegal on the particular circumstances of the caller's legal problem. The Alberta Law Line, for example, was established in 2004, and has a staff of 20 lawyers, legal resource officers and students. The Law Line uses the same financial eligibility criteria as Legal Aid Alberta: from $24,312 for a single person to $33,324 for a family of three. Staff Lawyers at Alberta Law Line provide legal advice over the telephone to eligible individuals, but do not attend court or meet with callers in person. Legal information and referrals are provided to the general public.
British Columbia's LawLINE provides legal advice to individuals whose family net income is under $36,000. LawLINE's lawyers and paralegals provide assistance with most legal issues, including family law, criminal law, debt, housing, welfare, or contract/consumer matters. If a client requires service in a language other than English, the LawLINE staff member who answers the phone will arrange immediate access to a telephone interpreter. Interpreters are available for more than 100 languages. Most callers who qualify for legal advice can receive up to three hours of help, depending on the circumstances of the case. Information and referrals are provided to the general public.
In the United States, considerable effort has been put into establishing legal advice hotlines over the past decade. In 2001 the American Bar Association adopted standards for the operation of a telephone hotline offering legal advice and information. Currently, at least 112 civil legal assistance hotlines are in operation and have full-time staff lawyers and paralegals to provide advice to low-income citizens and seniors. 8 The income cut-off to be eligible for legal advice from the hotlines is generally quite low and is set by state and federal poverty guidelines. For example, in New York the cut-off for a single individual is a gross annual income of US$12,763, or US$21,463 for a family of three. In Alaska, the eligibility rate is slightly higher, at US$15,963 for a single person and US$26,838 for a family of three. Legal Services of New Jersey's Hotline will provide all callers who do not meet the financial eligibility criteria with referral information.
Some of the hotlines are narrow in the type of legal assistance they provide, 9 while others offer assistance on a wide variety of legal issues. Legal Services for New York City (LSNY) is the largest provider of civil legal services to low-income persons in the United States. LSNY consists of 11 offices throughout New York City. One of those offices, the South Brooklyn Legal Services Office, operates separate hotlines for each of the following areas: consumer/health, family, foreclosure, government benefits, HIV, housing, rights of the disabled, special education, employment/unemployment insurance, and tax. 10 Legal Aid of Southeastern Pennsylvania 11 operates a toll-free hotline that offers assistance in family law, employment law, protection from abuse, public benefits, housing problems, elder law and consumer and bankruptcy problems. The hotline is open Monday to Friday from 9:00 a.m. to 1:00 p.m., and operates in English and Spanish. If the caller needs assistance in another language, an interpreter will be put on the line within minutes to translate for the client. Maryland operates a legal forms hotline that provides assistance to family law litigants in uncontested or uncomplicated cases. Legal Services of North Florida, Inc. 12 staffs its hotline primarily through volunteer lawyers. The areas of law covered include landlord/tenant, consumer, and family law matters. Following the telephone conference, clients may be sent letters confirming the advice given, along with written materials pertaining to their particular legal problem.
I do not mean to suggest that Ontario has no comparable services. However, in Ontario, people who cannot afford a lawyer but who do not qualify for legal aid currently have a very limited number of options.
Community Legal Education Ontario (CLEO) is one of the main providers of legal education and information materials that can be accessed by people who do not currently qualify for legal aid. CLEO is a specialty clinic 13 with the sole mandate of producing and delivering public legal education to communities in Ontario that are low-income or who otherwise face barriers to full participation in the justice system. CLEO has prepared information booklets in the areas of family law, workers' compensation, landlord/tenant, immigration and refugee, employment insurance, social assistance, health and disability, seniors, legal aid services, criminal, and youth justice. These booklets are kept quite up-to-date, and can be accessed through CLEO's website 14 and printed out, or CLEO will mail copies of the booklets for free to anyone who requests them. An important part of CLEO's mandate is to support the public legal education work done by local organizations in their own communities, and CLEO publications are available for use by community agencies across the province. Most CLEO publications are also available in French. CLEO has recently initiated a Six Languages Text and Audio Project, in collaboration with community advisors that will produce legal information in Chinese, Arabic, Tamil, Urdu, Spanish and Somali.
The Law Society of Upper Canada provides a Lawyer Referral Service. The Lawyer Referral Service is a 1-900 number, through which any individual can obtain the name and phone number of a lawyer who will provide them with a 30-minute phone or in-person consultation on their legal situation. The service is universally available and costs only $6.00, but the 30-minute time limit is a significant restriction, particularly for those who cannot afford to continue the consultation. Legal Aid Ontario provides a Duty Counsel Hotline that provides free legal advice 24 hours a day, seven days a week, but is restricted to adults and youth in police custody.
In December 2007, Pro Bono Law Ontario launched Law Help Ontario, a pilot walk-in centre in Toronto for unrepresented litigants (which I visited), located in the same building as the Superior Court of Justice. Law Help has a second location at the Small Claims Court. Law Help provides civil legal assistance, primarily through the services of volunteer lawyers, in areas that are not covered by LAO (i.e. Law Help will not assist with family law matters, except in the case of uncontested divorces). Law Help's eligibility threshold is also substantially higher than LAO's.
Ontario's community legal clinics are also a source of limited summary advice and assistance, and I discuss the role of the clinics more fully in the next section.
I also do not mean to suggest that these programs and services are not beneficial and important. My point is that they do not constitute an integrated system for enhancing access to justice for a broad range of Ontario citizens. Notably, Legal Aid Ontario, which has this mandate, does not directly provide accessible legal information or advice in any significant way. LAO should be the hub around which these others services are provided.
LAO has advised me that it is currently exploring proposals to develop capacity for internet-based legal aid services and is in the early stages of developing a legal aid hotline. I suggest that LAO, PBLO and CLEO work together to consider developing a toll-free telephone legal information line that could deliver multi-lingual legal information in the most needed areas of law, such as family, domestic violence, criminal, immigration/refugee, landlord/tenant, and human rights. 15
c) Legal Insurance Schemes
Legal information and advice for the working poor and middle class of Ontario represent a means of providing limited amounts of service to a very substantial number of people. In many cases, however, limited service simply will not suffice. One underexplored method of providing access to justice is legal insurance.
Prepaid legal plans are not a new concept in Canada. They were considered and endorsed by the Law Society of Upper Canada in 1993, 16 but have yet to make their way into the mainstream in Ontario. Some employers such as the Canadian Auto Workers include this form of legal coverage in their employee benefit plans. In Quebec, over 150,000 households have legal protection insurance included as a rider on their home insurance. Another option is to have legal insurance included under one's automobile insurance, as is mandatory in Germany. In Sweden, the state directly insures its citizens against the cost of legal proceedings. These legal insurance plans vary in the types of legal disputes that are covered and the form of legal assistance that is provided.
I conclude that legal insurance may be one means to significantly improve access to justice in Ontario, particularly in civil matters, including family law. The Law Society of Upper Canada and LAO should accord a high priority to promoting the role of legal insurance in Ontario. For example, one idea worth exploring is to offer legal insurance as an optional rider on all mandatory third part liability auto insurance policies. In order to keep premiums to moderate levels, such coverage would require a significant deductible, e.g. $5,000, to discourage frivolous actions, as well as a cap on coverage, e.g. $50,000, to prevent protracted litigation. It would also need to carefully define the classes of civil areas that would be covered.
d) Competitive Block Tendering
The United Kingdom, based on a Report by Lord Carter of Coles published in 2006, 17 is currently moving towards a system where legal aid lawyers are to be remunerated per case (rather than by the hour) at a price set by the market on the basis of competitive tendering for legal aid contracts by providers. This system is to be implemented on a nation-wide basis as of October 2008. Commentators expect that the introduction of competitive tendering on block contracts will result in a potentially significant reduction in the number of firms that will accept legal aid, with the Law Society chief executive expressing the concern that the result is "a supply base of legal aid solicitors that is incredibly fragile and at extreme risk." 18
The relative benefits and detriments of block tendering were considered in the McCamus Report. A potential benefit of block contracting would be that the cases should be resolved at a lower cost than if they were to be contracted on a single case basis, as well as developing the expertise of the local bar in relation to certain types of cases or clients. The Report suggested, however, that block contracting may compromise the quality of service that legal aid clients receive, since the lawyer has a financial incentive to settle the case as soon as the billable hours and resources expended on it reaches the fixed price quoted, even if it may not be in the client's best interests to do so. 19 In addition, block contracting takes away the client's ability to choose counsel from a panel of legal aid lawyers. 20 The Report suggested that to remedy some of these defects, the contracts could be non-exclusive, where the legal aid authority would award the contracts to several firms and give clients the option to choose between them. However, this would only be a viable option in larger urban areas where economies of scale and specialization could be achieved. In order to ensure a sufficient level of quality of service, resources would need to be allocated to monitor the level of services provided, and provide economic sanctions if service quality expectations are not met. The relative transaction costs of monitoring and administering the block contract providers as compared to the costs of monitoring and administering the certificate system would need to also be kept in mind.
The Report also concluded that due to the complexity of family law cases, block contracting would not be appropriate for family law matters. 21 I note also that it is not evident that Ontario has a thick enough market of legal service providers especially in rural areas, 22 where the assumption that several firms will compete for contracts seems unrealistic. For the reasons set out above, I do not think competitive block tendering is a model that should be pursued in Ontario at this time, but LAO should closely monitor the U.K. experience.
III. SERVICE INTEGRATION
Recent research indicates that Canadians have a high prevalence of justiciable problems that are not being resolved. A national survey of 4,500 adult Canadians with individual incomes of $30,000 or less or family incomes of $50,000 or less, carried out in 2004, showed that 47.7 per cent had experienced one or more problems with legal aspects that they had considered serious and difficult to resolve within the previous three years. 23 A subsequent survey of 6,665 adult Canadians, carried out in 2006, revealed that 44.6 per cent of all Canadians aged 18 years and older had experienced at least one serious and difficult-to-resolve problem with legal aspects within the previous three year period. The Table below shows the percentage of individuals experiencing one or more justiciable problems according to the fifteen types of problems reported by respondents in the 2006 survey.
|Problem Category||Percentage of Respondents Reporting at Least One Problem in the Category||Number of Respondents|
|Family: Relationship Breakdown||3.6%||239|
|Wills and Power of Attorney||5.2%||348|
|Hospital Treatment or Release||1.6%||108|
|Threat of Legal Action||1.2%||82|
The data show that two-thirds of the respondents did not receive assistance for the problems they experienced.
Recent research in other jurisdictions has been undertaken to examine the tendency of socioeconomic problems to occur in groups, or "clusters". Pascoe Pleasence of the U.K. Legal Services Research Centre (Legal Services Commission) and his colleagues 24 found that certain problems tend to co-occur or cluster such that when one problem type occurs, additional problems have a greater likelihood of being a particular type. The problems may not have a causal connection to each other, but may instead be the result of additional factors, such as health problems. Pleasence et al identified four primary problem clusters: family (i.e. domestic violence, divorce and relationship breakdown problems); homelessness (includes renting, homelessness, welfare benefits, and problems with the police); economic (includes consumer, money/debt, employment, and neighbour problems); and discrimination and clinical negligence. 25 An adverse impact of these multiple problems is that individuals often have difficulty carrying on their normal lives. It is estimated that the cost to the U.K. National Health Service from such civil problems is over one billion pounds per year. Pleasence's research demonstrates that individuals who felt they were uninformed about their rights suffered greater negative consequences. Pleasence's research also indicates that certain segments of the population, in particular minority groups, are more likely to suffer from multiple problems. 26
Richard Moorhead and Margaret Robinson, also U.K. researchers, similarly found 27 that certain clients experience a greater number of problems both because their problems are interconnected, and because the clients are particularly vulnerable individuals. The primary clusters of problems that Moorhead and Robinson encountered were similar to those identified by Pleasance et al, i.e. rented housing/benefits/debt, relationship breakdown/children/homeownership/domestic violence, and discrimination/employment. 28
Ab Currie 29 of the Canadian Department of Justice, whose studies I cited earlier, found that multiple problems have several important features. For each additional problem experienced there is an increasing likelihood of experiencing yet further problems, in part because certain problems act as triggers for other problems. The data indicate that multiple problems will cluster in definite patterns. For example, relationship breakdown is often a trigger for other problems including debt, consumer, employment, social assistance and other family law problems. Early and effective assistance with relationship breakdown problems would therefore help forestall the formation of problem clusters and the increased degree of disadvantage that may be associated with interconnected multiple problems. In light of the evidence of the deleterious impact of legal problems on a person's physical and/or mental health, such early intervention could also result in a cost saving to the social welfare system by reducing the need of these individuals to have repeated visits to medical professionals to treat their resulting health symptoms.
Studies in New Zealand 30 and other jurisdictions have reported similar results. 31 The universality of these findings is striking and has led to the conclusion that justiciable problems should not be dealt with in isolation, but in the context of their causes and consequences through an integrated approach.
Moorhead and Robinson found that since the majority of problem clusters interrelate, clients would benefit from a coordinated response to their multiple problems. 32 Significantly, they also found that the manner in which clients present their problems is affected by how the advisors they meet with are structured. 33 Funding arrangements, organizational capacities and skills, information deficits and other barriers were found to impede the provision of a holistic response to a client's multiple problems. 34
In light of this evidence of problem clustering, the question becomes how can the Ontario legal aid system most efficiently and effectively provide a coordinated response to individuals' multiple problems. Currently, the legal aid, health, and social benefits systems largely operate in silos. The consequence is that problems are treated in isolation, with the treatment being prescribed without due regard to the continued effects of the individual's other existing problems. The above-mentioned research indicates that if trigger problems are dealt with at an early stage, possible results include reduced costs for the legal aid system and other social services, and improvements to the client's quality of life. An important component of access to justice is to provide clients with upfront responses to their problems. Research has underscored the importance of early intervention and early advice. Front end information and assistance has been shown to help empower clients with the means to resolve their problems and to help prevent their problems from multiplying or cascading.
I discussed the types of advice centres used in the U.K., Alaska and British Columbia in some detail in the previous part of this section. I wish only to note here that they are also good examples of integrated services.
Ontario's community legal clinic system is well regarded and often serves as a model for other jurisdictions around the world. The range of legal matters addressed by clinics, including tenant rights, income maintenance, and workers' compensation, can provide a modest level of service integration for low-income people. As noted above, however, problem clusters involve more than multiple legal problems; they involve health, social service and other problems as well. A few of Ontario's clinics have been able to more closely integrate legal services with health or social services, or are willing to offer a broader range of legal services to meet their clients' needs - at least for particular groups of Ontarians.
One example is the Centre francophone de Toronto ("the Centre"). The Centre provides a broad range of multidisciplinary services to the Francophone community in Toronto. Upon attending at one of the Centre's four locations, clients fill out a global needs assessment which determines whether they need legal, health (physical and/or mental), social and/or employment assistance. The Centre has lawyers, social workers and doctors all working together under one roof to facilitate ease of referral. The legal clinic 35 provides assistance to clients with their immigration or refugee case, as well as housing matters, social assistance case, human rights complaint or employment law case. While the clinic indicates it would be beneficial for their clients to have a full-time family lawyer on staff as well, it does not currently have the funding to do so.
Another example of integrated legal and social services that was mentioned in the course of my meetings with stakeholders is the Barbra Schlifer Clinic. Started in 1985, this clinic provides counselling, legal, interpretation, information and referral services for women who are survivors of violence. The Clinic seeks to address the impact and root causes of violence against women, foster more effective and better coordinated services to women, as well as facilitate reforms to the legal, medical and social welfare systems that deliver essential services to women. The Clinic's dedication to preventing violence against women is promoted through the delivery of multi-faceted client services (counselling, legal and language interpretation) as well as through a broad range of community development and advocacy programs. The interpreter services assist the Clinic's non-English speaking clients to access a variety of essential services such as shelters, community centres, and the mental/medical health, legal, housing and social assistance systems. The Clinic's counselling section offers multi-lingual individual and group counselling services. The Clinic provides direct representation for its clients in family law cases, immigration matters and administrative law proceedings, as well as advocacy with social/welfare and legal system professionals. The Clinic is not funded by LAO, which gives it more flexibility in the range of clients it serves. The Clinic also has an arrangement where it will rent office space to legal aid certificate lawyers in areas of law that serve the needs of their clients.
York Community Services is a community-based charitable organization offering a broad range of primary health care, legal services, counselling, housing help and community support programs to residents of the former City of York in Toronto. Services are targeted to families at risk, primarily single mothers and low-income families, newcomers and refugees, adults with developmental and/or mental health difficulties and seniors and the frail elderly - with the overall goal of building healthy families, individuals and communities. Staff and volunteers offer services in several languages, with special programs available to newcomers from the Caribbean, Central and South America, Vietnam and Somalia. It is one of the largest community based agencies in York with a multi-cultural staff of over 45. All services are provided free of charge under one roof and one administration.
The Student Legal Aid Services Societies (SLASS) are also deserving of mention due to the willingess of these student clinics to experiment with their services, both in substance and in form. For example, at least some of these clinics provide some family law services and criminal defence representation in summary offences, which is generally uncommon for legal aid clinics. The SLASS also participate in outreach programs where they bring their services to the clients on the streets or in community centres, and work in partnership with community agencies. As the SLASS submission to the review states "many legal problems are inextricably interwoven with other social problems. Providing legal services in combination with other social services enhances the success and durability of all." 36
Aboriginal Legal Services of Toronto (ALST) is also an example of innovative service delivery in the legal integration it delivers to Aboriginal individuals and communities in Ontario. ALST provides representation in legal matters including human rights complaints, housing disputes, police complaints, employment insurance matters, and Indian Act matters; represents families at inquests; participates in test case litigation, including at the Supreme Court of Canada; operates an Aboriginal court worker program at the family, criminal and youth courts in Toronto; and has dedicated staff prepare Gladue Reports. Unlike many of the other clinics, ALST receives its funding from multiple sources. ALST has proposed the integration of other legal services within the organization, such as Gladue Court duty counsel. ALST, along with the Ontario Federation of Indian Friendship Centres, argues persuasively for the creation of several Aboriginal legal services corporations in Ontario, or one umbrella Centre with regional offices, as is provided for in the Legal Aid Services Act but has not been acted on, to provide an integrated and comprehensive range of legal services to Aboriginal communities.
I suggest that an option for moving towards an integrated response to Ontarians' legal and social problems could be by way of reconceptualizing the mandate of Ontario's legal aid clinics. In their expanded role, clinics would routinely conduct a global needs assessment of their clients. Once a client's needs are evaluated, an organized referral system could be relied on to assist in resolving the client's existing needs, with an aim to prevent further problems from developing. Clinics would also be a resource for the public to go to for summary legal advice and assistance that is not means-tested or is means-tested against much more generous criteria than currently prevail. This more fully integrated response to individuals' problems would also help to prevent the occurrence of "referral fatigue", which has been described by Pascoe Pleasence as the correlation between the increase in advisors an individual uses and the reduced likelihood of obtaining advice on referral. 37
While community legal clinics are an obvious starting point for this sort of innovation, I do not wish to exclude the considerable potential for integrated service delivery by the other staffed components of the system, namely, duty counsel and criminal and family staff offices. LAO's SOAP initiative (Simplified Online Application Portal), which directly involves social service agencies in the certificate applications process and is described in more detail in Section IV of this report, could become an important platform for an integrated referral network.
I am mindful of the difficulties of fully integrating legal and social services, including conflicts of interest. It seems to me that better integration of legal services in Ontario's clinics, staff offices and duty counsel offices, coupled with a referral system based on strong partnerships with the social service sector would be a highly desirable goal.
IV. FAMILY JUSTICE SERVICES
Throughout this consultation and review process I have heard time and again that the people most in need of additional legal aid assistance are those experiencing family law problems. The family law certificate lawyers are the group most rapidly leaving the system, family law problems are a significant trigger for additional legal and socioeconomic problems, and it is estimated that over half of family law litigants are unrepresented.
A recent report on Ontario's Family Court Branch of the Superior Court of Justice 38 by Alfred Mamo, Peter Jaffe, and Debbie Chiodo, entitled "Recapturing and Renewing the Vision of the Family Court" ("the Mamo Report"), examined the Family Courts' service delivery, court operations, and court-connected mediation and information services. 39 The Report highlighted the issue of self-represented litigants in the family court system, and recommended that the Family Law Information Centres (FLICs) should be the entry point into the family justice system for the vast majority of cases, in order to ensure that litigants are made aware of the range of services and dispute resolution processes available in the court and the community.
FLICs fall under the responsibility of the Ministry of the Attorney General and have been established in most courts that deal with family law matters. The FLIC is an area in each family courthouse where the public can receive free information about divorce, separation and related family law issues (child custody, access, support, and property division) and information about alternative dispute resolution processes. Each FLIC has a variety of government and community publications and audiovisual materials available addressing these issues, as well as guides to court procedures. Court staff provide service during designated hours. Advice lawyers provided by LAO are also available in most locations to provide legal assistance and advice to those who qualify. In many locations, advice lawyers are managed by a supervisory duty counsel present in family court. In the course of my consultations, I heard that the FLIC services are effective and beneficial, but are quite limited in some jurisdictions, and insufficient to meet the demand. It seems to me that the value of the FLICs could be significantly enhanced were LAO to explore the possibility of advice lawyers providing summary legal advice and assistance to a broader range of clients, either on a non-means tested basis or in accordance with much more generous financial eligibility criteria.
In addition, in the 17 Family Court of the Superior Court of Justice locations, an Information and Referral Coordinator (IRC) is available to help clients address their overall needs at separation, including referrals to sources of housing, counseling and legal services. IRCs also provide information about the different procedural options that are available for clients (i.e. mediation, arbitration, negotiation) and referrals to parent information sessions. It appears that where an IRC is available, they work well. Although I recognize that such a service falls outside the mandate of LAO, it seems to me that having IRCs available in more family court locations would bolster the integrated service delivery approach that I advocate throughout this section.
Another initiative worthy of mention is the student run Family Law Project (FLP). All seven law schools, under the auspices of Pro Bono Students Canada, are participating in the FLP. Although FLPs vary slightly in each jurisdiction, overall the main task of FLP students is to help unrepresented people in family court fill out court forms. The students do not give legal advice, and work under the supervision of duty counsel. Litigants must first see an advice lawyer in the FLIC or a duty counsel who will advise them on what type of claim they should make, for example a claim for custody and child support. They can then sign up to see a student (on a first come first served basis), and a student will help them draft their custody and child support application. In addition to meeting an important need among those without legal representation, the FLP provides an invaluable opportunity for students to develop practical skills applicable both within and outside family law, such as interviewing clients and legal drafting. The need for assistance in filling out forms, particularly in the family law context, was raised with me on a number of occasions during this review. The FLP fills an obvious gap and all efforts should be made to maintain such services in the FLICs where possible.
The Mamo Report found that FLICs fill "an obvious need in the justice system for a clear entry point and access to information [and] one-stop shopping for service", and that the "personal nature of the centre allows for greater access by those individuals who face barriers related to culture, language, literacy, and poverty." 40 The Report identified a number of existing challenges and barriers that are hindering the FLICs effectiveness, including insufficient staff, physical space constraints, and the inability of litigants who fall above the financial eligibility cut-off to receive legal advice, which results in them becoming "frustrated and uninformed [which is] further compounded as they move through the system." 41
The Mamo Report also underscored the patchwork of federally- and provincially- appointed family judges who preside over the three types of family courts in Ontario 42, and that the inadequacy of the current judicial complement at the Superior Court level (which includes the Family Court), "creates inequities for families and children throughout the province". 43 I heard similar observations in my meetings with stakeholder groups. As well, at the 2007 Opening of Courts ceremony, Superior Court Chief Justice Heather Smith publicly urged the federal government to appoint 12 new judges, stating that the situation had reached a "critical point" resulting in an "impatient public". 44 No amount of funding or innovative new legal aid service can improve a family justice system if there are insufficient judges to oversee it. I echo the call to the federal government to make new judicial appointments to the Superior Court of Justice in Ontario.
My earlier recommendations with respect to the use of duty counsel, paralegals and staff offices apply particularly in the area of family law. I suggest that LAO, in determining expansions or improvements in these services, accord the highest priority to family law clients. It seems to me that if community legal clinics were reconceptualized to provide more integrated services, they could provide some forms of summary assistance to family law clients. Similarly, PBLO's pilot project, Law Help Ontario, could help fill a gap in Ontario's justice system by organizing volunteer lawyers to provide advice in family law matters for those who do not qualify for legal aid, which would complement existing family legal aid services.
It has become increasingly clear over the past decade that there exists no single panacea for delivering legal aid services that would remedy the existing ills in Ontario's legal aid system, i.e. that would provide substantially more services from the same finite resources. As I outline above, there are a number of potential service delivery methods that LAO could move towards in order to provide at least some limited legal assistance to a broader range of citizens at a lower cost than the provision of a certificate. At the same time, it is also clear that for many cases the need for formal legal representation cannot be done away with. In terms of providing such legal representation, the desirability of implementing staff offices on a wider scale than currently exists has not in general, to date, been demonstrated. I therefore conclude that there is a need for more experimentation and collaboration by LAO in the provision of legal information and advice services, as well as a greater focus on providing legal, and potentially also social, services in a more holistic manner.
- Civil Justice Reform Project: Summary of Findings & Recommendations, November 2007..
- Report of May 2005 available at: http://www.bcjusticereview.org/working_groups/family_justice/final_05_05.pdf.
- Report of November 2006 available at: http://www.bcjusticereview.org/working_groups/civil_justice/cjrwg_report_11_06.pdf.
- For more information see: http://www.ag.gov.bc.ca/justice-reform-initiatives/civil-project/justice-services-pilot.htm.
- For example, Michigan’s Food Stamp Helpline; California’s Immigration Hotline; Hawaii’s Senior Legal Hotline; Georgia’s Tenant Hotline; Oregon’s Child Support Helpline; Maryland’s Family Law Hotline and Missouri’s AIDS Legal Hotline..
- A community legal clinic that began in 1974 and is funded by LAO and the Department of Justice. CLEO currently receives special project funding from the Law Foundation of Ontario, the Trillium Foundation of Ontario, the Department of Justice Canada, and LAO’s Innovation Fund..
- The federal Legal Line provides free legal information through its website and hotline service in 35 areas of law in relation to all Canadian jurisdictions. See: http://www.legalline.ca/default.phpx?TabID=8192 While the breadth of information available through Legal Line is commendable, I still see a need for a legal information line that is targeted to Ontario residents, and which focuses its efforts on providing up-to-date legal information in the most needed areas of the law..
- Oliver Bertin, “Lawyers see more work thanks to prepaid legal plans”, Lawyers Weekly, Vol. 24, No. 36, February 4, 2005..
- Legal Aid: A Market-based Approach to Reform, Lord Carter’s Review of Legal Aid Procurement, 13 July 2006, available online at: http://www.legalaidprocurementreview.gov.uk/publications.htm.
- BBC, “Solicitors ‘deserting’ legal aid”, 5 November 2006, available online: http://news.bbc.co.uk/1/hi/uk/6115514.stm.
- See also Trebilcock and Daniels, “Rethinking the Welfare State”, ch. 5 (New York: Routledge, 2005) at 89..
- At 209.
- At 174.
- See Final Report of the Sole Practitioner and Small Firm Task Force, March 24, 2005 (considered on April 28, 2005), prepared by the Policy Secretariat of the Law Society of Upper Canada..
- Ab Currie, A National Survey of the Civil Justice Problems of Low and Moderate Income Canadians: Incidence and Patterns presented at the Canadian Forum on Civil Justice’s 2006 conference Into the Future: The Agenda for Civil Justice Reform, available online at: http://cfcj-fcjc.org/docs/2006/currie-en.pdf.
- Pleasence, P., Balmer, N.J. and Tam, T., Report of the 2006 English and Welsh Civil and Social Justice Survey, London: Legal Services Commission, LSRC Research Paper No. 19, at 40. Available online at: http://www.lsrc.org.uk/publications/csjs2006.pdf
The Future of Civil Justice: Culture, Communication and Change presented at the Canadian Forum on Civil Justice’s 2006 conference Into the Future: The Agenda for Civil Justice Reform http://cfcj-fcjc.org/publications/itf-en.php.
- At 41-42.
- Report of the 2006 English and Welsh Civil and Social Justice Survey, at 33 http://www.lsrc.org.uk/publications/csjs2006.pdf.
- Moorhead R., Robinson M. and Matrix Research and Consultancy, “A trouble shared – legal problems clusters in solicitors’ and advice agencies”, prepared for the Department of Constitutional Affairs, November 2006, available online at: http://www.dca.gov.uk/research/2006/08_2006.pdf.
- Ibid, at 34.
- Principal Researcher, Research and Statistics Division, Department of Justice Canada..
- The New Zealand National Survey of Unmet Legal needs and Access to Justice (2006), available online: http://www.lsa.govt.nz/documents/ILAG2007Paper-NationalSurvey-implicationsforinformationandeducation.pdf.
- Presentation by P. Pleasence and N. Balmer, Osgoode Hall Roundtable on "Rethinking Civil Legal Need", November 5, 2007. See also Ab Currie, “The Legal Problems of Everyday Life”, International Legal Aid Group, Antwerp, Belgium, June 2007..
- Ibid, Executive Summary at i..
- Ibid, Executive Summary at iii..
- Services d’aide juridique du Centre francophone de Toronto.
- At 3.
- At 57.
- Also referred to as the “Unified Family Court” to indicate their jurisdiction over both provincial and federal family law matters. Unified Family Courts were first introduced in Ontario in 1977 as a pilot in Hamilton. There are currently 17 Family Courts, located in Barrie, Bracebridge, Brockville, Cobourg, Cornwall, Hamilton, Kingston, Lindsay, London, L’Original, Napanee, Newmarket, Oshawa, Ottawa, Perth, Peterborough and St. Catharines..
- The study collected data through interviews and focus groups, file reviews, online surveys, and system data provided by the Ministry of the Attorney General..
- At 58.
- At 59.
- Namely, the Ontario Court of Justice, the Superior Court of Justice, and the Family Court of the Superior Court of Justice.
- At 8.