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Access to Justice: Let’s give the Bonkalo report a chance | Thomas Cromwell

Monday, April 03, 2017 @ 8:44 AM | By Thomas Cromwell

Thomas Cromwell %>
Thomas Cromwell
I wish that we didn’t have a large and growing legal services gap. But we do. Just look at the never-ending waves of self-represented litigants in our courts. Most of them wish they had a lawyer; some started out with one, but ran out of money along the way. And, sadly, the unmet need for legal services for these people is only the tip of the unmet legal needs iceberg.

Many who are not in the courts need legal services which are beyond their reach. Legal aid and pro bono work, as important as they are, will never on their own meet that need. We must find — and soon — innovative ways to make legal services more accessible to the people who need them.

Some observers believe that this serious legal services gap has an important regulatory dimension. Gillian Hadfield, a law and economics professor at the University of Southern California, goes so far as to say that inadequate access to legal services is mainly a problem of regulation. And so we need to be taking a hard look at how the regulation of the legal profession affects access to legal services. After all, professional regulation ought not only to ensure competent and ethical legal services, but also not unnecessarily impede members of the public from getting the professional services that they need. The overriding duty is to act in the public interest.

It was encouraging, then to see that the Law Society of Upper Canada and the attorney general of Ontario acting together to see if something could be done from a regulatory point of view to help meet the unmet legal services needs of people in our family courts. They gave a mandate to the highly respected former chief justice of the Ontario Court of Justice, Annemarie Bonkalo, to consider whether it would be in the public interest to make available some family law legal services by non-lawyers. Given that 57 per cent of litigants in family law matters appear in our courts without counsel, the question at the very least seems one worth asking.

Of course, expanding the scope of work that can be done by professionals other than lawyers is only one way that might bring some legal help within the reach of the thousands of people who need it. And it is surely not the only way or sufficient in itself to address the legal services gap. But it is an idea that if put into practice might close some of the legal services gap.

Justice Bonkalo has now released a thoughtful and carefully researched report. She proposes that properly trained and regulated independent paralegals could fill at least parts of the enormous legal services gap in family law. Her recommendations deserve careful scrutiny, not only because of the quality of the report but because there don’t seem to be many other concrete, realistic suggestions on the table. What would be wrong with a pilot project, subject to careful evaluation? Even if it fails, it won’t make the situation worse. Doing nothing will.

What we must not do is to act as if there is no problem to solve. But that is what some of the reaction to the Bonkalo report seems to do. It is all very well to say that everyone should have legal representation and that all work done by others must be supervised by lawyers. But that is a bit like saying that everyone has the right to dine at the Ritz. Wise reaction to the Bonkalo report must not be based on some utopian vision, but on the fact that more than half of the people going to court in family matters in Ontario are not represented by lawyers. And changing the court structure, such as by expanding the Unified Family Court, while no doubt an excellent idea, won’t do anything to help fill the legal services gap.

So I say let’s at least admit that we have a serious problem in relation to access to legal services. And let’s also give Justice Bonkalo’s suggestions a chance, perhaps through a carefully evaluated pilot project. And let’s challenge the critics to get some concrete and realistic ideas of their own on the table instead of summarily shooting down a year of thoughtful work without offering a better idea about how to address the access to legal services gap in family law. The status quo is not an option.

The Honourable Thomas Cromwell served 19 years as an appellate judge and chairs the Chief Justice’s Action Committee on Access to Justice in Civil and Family Matters. He retired from the Supreme Court of Canada in September of 2016 and is now counsel to the national litigation practice at Borden Ladner Gervais.