An essential access to justice ‘stopgap’

A senior citizen who felt ripped off by shoddy renovation work. 

A young woman who feared a non-compete clause in an employment contract would keep her from getting another job. 

And a tenant whose landlord refused to clean up bed bugs in an infested apartment. 

These are just some of the clients who got free advice on civil matters this summer from Norton Rose Fulbright LLP as part of a Pro Bono Ontario partnership with BMO.

About 60 lawyers took calls each Wednesday throughout July on the PBO hotline. They may never know the difference they made connecting with low-income earners, charities, non-profits and small business owners.

But Kirsti McHenry, executive director of Pro Bono Ontario, says the impact is real. 

“People are genuinely overwhelmed and at a loss for what to do,” she says. “To get that advice that they quite desperately need – the relief that is expressed, the gratitude, and just that sense that it’s going to be better.

“I love that part of the job.”

She says lawyers sometimes forget how daunting court filings and other procedures can be.

The senior who was advised on how to start a claim against his renovation contractor could not afford legal services. Through the program, he was able to get up to a 30-minute consultation, plus follow-up calls. His file has updated information so that subsequent pro bono volunteers are up to speed.

“He had a plan to recover some of the money that he had lost, which was incredibly meaningful to him because he was on a fixed income,” McHenry says.

The service helps about 30,000 Ontarians each year, and demand is growing. Most callers need help going to court, followed by housing and employment disputes. The hotline does not deal with family, immigration, or criminal law matters. 

“Legal services are financially out of reach for most people,” says Grace Pastine, KC, pro bono counsel at Norton Rose Fulbright.

Complex cases often mean clients run out of money for legal fees mid-proceeding and wind up self-representing.

“Low-income and marginalized people receive inadequate or no legal help for the vast majority of their legal problems,” she says.

“Legal aid and public organizations do extraordinary work with limited resources, and they’re often overwhelmed and underfunded.”

This is the third year her firm has volunteered in July. Hundreds of other lawyers pitch in throughout the year on pro bono files across Canada.

“I’ve spoken with many people who were at risk of losing their housing or were living in unsafe conditions,” Pastine says, adding it’s “incredibly gratifying” to help ensure their legal rights are protected. 

“It makes us better people. It makes us better lawyers. It makes us better law firms to be doing this kind of work.”

Legal watchers generally agree that access to justice is declining, but it’s a tricky issue to measure without consistent tracking.

In 2007, former Supreme Court of Canada Chief Justice Beverley McLachlin formed the Action Committee on Access to Justice in Civil and Family Matters. It gathers national input and metrics from across the justice sector, releases progress reports, and holds an annual summit to exchange ideas.

It will host its first national conference on access to justice research and data sharing next May at the University of Ottawa Faculty of Law. 

“There’s not a lot of sharing or uniformity of data in the justice system,” says Jennifer Khor, supervising lawyer and project manager for Stand Informed legal advice services in Vancouver.

Courts, pro bono services and legal aid organizations all collect numbers differently.

What’s clear is that too many people are going without crucial advice. She wants to see more community clinics, less bureaucracy and more support for legal aid.

Pro bono work is essential but is really a “stopgap,” says Khor, head of the Canadian Bar Association’s access to justice subcommittee.

“From the CBA’s perspective, access to justice is a fundamental issue for our democratic society and really needs to be properly funded by governments.”

Jennifer Leitch, executive director of the National Self-Represented Litigants Project in Toronto, says the price of legal support is driving more people to go it alone. 

Research in the United States suggests litigants with no lawyer are less successful, yet many have no choice.

She estimates that legal expenses for a seven-day civil trial in Ontario can easily top $50,000 to $70,000. A loss could add court costs.

“Who in the middle class can afford that?”

Leitch says it would help if courts, even in one or two jurisdictions, consistently tracked the number of people starting claims without lawyers and what happens to those cases. 

“That would give us a greater sense of some of these numbers, but we don’t have that, really, anywhere in Canada.”