Justice Committee on Dec. 13th, 2016

[Avvy Yao-Yao Go]

I think money is an essential but not sufficient condition for all of these things to happen. Ontario is one of the best models in the world, second to the U.K., and we have a very mixed model wherein you see clinics' delivery of services, plus judicare, plus duty counsel. Many things are happening, as in the mixed model in which people are providing triaging services. Bundling of legal services is one thing that the law society has allowed lawyers in Ontario to do. All of this is to promote access to justice.

Many things, then, are already happening, but even with those things, even with the increase in funding, there is still a problem, because at the end of the day we just don't have enough money.

[The Chair, Liberal, Anthony Housefather]

Thank you very much.

We'll go to our second round of questions.

Mr. Bittle.

[Chris Bittle, Liberal, St. Catharines, ON]

Thank you so much.

Perhaps this isn't a fair question, because I know professions are self-regulated and beyond that regulated by the provinces, but I've seen this happen. I practised civil litigation, and it was heart-wrenching to see people walk away from legitimate, strong legal cases because my hourly rate was too high. In comparison with much larger areas than Niagara, my hourly rate is or was pretty low. What is the profession doing? It seems that there is pressure in the profession to raise hourly rates, which is creating pressures and a ripple throughout the system. Beyond the suggestion for mandatory pro bono work at the higher levels, what can the profession do?

[Avvy Yao-Yao Go]

I'm not speaking as a bencher of the law society, but this is an issue that we have been talking about. I think it's why we changed the rules of professional conduct to allow the unbundling of services, for precisely that reason. However, at the end of the day the person will still need someone to represent him because of the complexity of the law. I think, therefore, that this is only a small solution.

I work in a legal clinic, I don't charge people money and my salary is really low, so I don't know what the solution is for the people out there. At the same time, however, you should recognize that we've done surveys. Sole practitioners are not doing very well. There's a huge disparity within the legal profession; not everyone charges a very high fee. There are multi-faceted issues that we're dealing with.

[Richard Fowler]

In a way, the high hourly rates that some lawyers charge—and I agree with my colleague that if you go outside of the big cities, the median income for lawyers is surprisingly low.... A dedicated tax on legal fees, which is what British Columbia did—but when using the word “dedicated”, apparently somebody had their fingers behind their back and crossed, and all those other things—is a reasonable way to think about funding the legal aid system. All you need to do is dedicate the funds that are taxed.

Once you start to see legal aid as an essential service, models for funding it will quickly come to mind. We have may other essential services that we fund through either dedicated taxes or user fees. It can be done. It's just a matter of the will.

[Doug Ferguson]

Lawyers charge based on the market, right? They take what the market can bear, but one of the reasons the costs are so high is that they are part of the system and the system has built-in delays. It takes too long, so that's why lawyers' fees go up. I think if we could somehow simplify the system and make it more efficient, fees would come down to the benefit of everyone, except the lawyers.

The other thing is that the Law Society of Upper Canada, and I think other provinces too, now have contingency fees, so that people don't need to pay fees up front to support a civil lawsuit. Of course, that doesn't apply to the criminal side or necessarily to the family side, but it does on the civil. It doesn't help if you're defending.

[Chris Bittle, Liberal, St. Catharines, ON]

It seems to be across the board that there's a desire to increase funding. If we were going to recommend an amount to the Government of Canada, does anyone have a number x by which legal aid funding should be increased? Is there any idea as to what x is?

[Avvy Yao-Yao Go]

I don't have a number, but I think it should be set at a percentage of something. It's either a percentage of the funding that you spend on the criminal justice system or the correctional system, or a percentage of funding you set within the transfer payment, so that it goes up as your other expenses go up.

[Doug Ferguson]

I think that the funding should model.... I wouldn't link civil to criminal, personally. I think we need to come to that agreement I talked about with the provinces. You have to set the benchmarks. What is the income of the people you're going to provide legal aid to? Make an estimate and go from there. I think it's going to be difficult to come up with a number. I understand your need for one. I get that, but it's very difficult.

[Chris Bittle, Liberal, St. Catharines, ON]

As a civil litigator, I know we talk mostly about criminal and family law. I was disappointed for my clients when there was a self-represented individual on the other side because that meant a longer process, more expenses, and likely a trial. In an ideal world or even your recommendations, what do you feel should be covered by civil legal aid?

[Doug Ferguson]

Civil legal aid should cover what we call “essential legal needs”. My colleague has it here, if I may refer to our report, “Essential legal needs are legal problems or situations that put into jeopardy a person or a person’s family’s liberty, personal safety and security, health, equality, employment, housing or ability to meet the basic necessities of life.”

This is in our report, under benchmark two, scope of services.

[The Chair, Liberal, Anthony Housefather]

Thank you very much.

We will now go to Mr. Cooper.

[Michael Cooper, Conservative, St. Albert—Edmonton, AB]

Thank you to the witnesses.

Mr. Ferguson, perhaps you did elaborate earlier and I missed it, but I thought that you had said that Australia had adopted national benchmarks. Did I hear that correctly?

[Doug Ferguson]

That's correct. They have a national partnership agreement on legal assistance services and it's an agreement between the federal government and the states and territories of Australia.

[Michael Cooper, Conservative, St. Albert—Edmonton, AB]

When was that entered into?

[Doug Ferguson]

That came into being, just last year, in 2015.

[Michael Cooper, Conservative, St. Albert—Edmonton, AB]

I presume, given the fact that it was very recently implemented, that you wouldn't have any information about what the outcome of that has been, in terms of the provision of legal aid services in Australia.

[Doug Ferguson]

Not at this point, sir.

[Michael Cooper, Conservative, St. Albert—Edmonton, AB]

Thank you for that.

I pose this to Mr. Ferguson or Ms. Froc, and frankly, any of the other witnesses. One of the concerns highlighted in the CBA report was about the patchwork of legal aid services across Canada, in terms of inconsistencies with respect to financial eligibility and the types of legal matters that are covered under legal aid. Of course, one of your key recommendations is these national benchmarks, which include, as one of the benchmarks, scope of services, which was defined. Is there anything else that you think the federal government can do to encourage greater uniformity to end this patchwork in all 13 jurisdictions across Canada.

[Doug Ferguson]

I think that there is a moral role to play here. The federal government is the protector of Canadians' rights. There are so many issues that come before the federal government that have been given priority and this one has not. I think this has to be given a top priority by the Department of Justice and also we have to make sure that the provinces feel the same. We need to get things lined up so that there's a common desire, a political will, to get this done.

I think also we need to get other stakeholders in the system on board. I think there would have to be a major discussion, and I talked about this earlier. There are so many silos. We have to get everybody working together with common goals.

[Richard Fowler]

You're studying access to justice, and of course we're speaking about legal aid. One of the impacts on access to justice is delays in appointing judges. It's a huge issue. The consequence of it will be felt a year from now, two years from now.

I know that in British Columbia the superior court judges are extremely overworked. I know in the Yukon they are overworked. I can't remember the figures in the Yukon, but the number of filings per week has tripled and they still only have two superior court judges up there. Delays in filling vacancies have a huge impact on access to justice.

[Avvy Yao-Yao Go]

I would just echo what Mr. Ferguson has said. It is important to have that conversation, whether it's in the context of funding or whether it's in the context of coming up with some kind of a national strategy to address this issue, which obviously affects all Canadians in different ways.

[Doug Ferguson]

If I can add one more thing, Mr. Fowler mentioned judges and the other thing the federal government could do is to work on more unified family courts in Canada. I think that would save a lot of confusion and create more efficiencies.

[Michael Cooper, Conservative, St. Albert—Edmonton, AB]

Mr. Nicholson raised the issue of pro bono legal services. One of the areas that was cited in the report on maximization of federal investment in criminal legal aid was the fact that in legal aid systems across Canada there is a reliance on lawyers to do a lot of different things in the providing of legal aid services.

One of the recommendations in that report was more utilization of paralegals and law students, whether it be in terms of handling applications or other aspects of the providing of legal aid services. I was wondering if you might be able to comment on that.

[Doug Ferguson]

You hit my sweet spot there, Mr. Cooper, especially when you mentioned law students, because that's what I do.

I think there is definitely more scope for the involvement of law students in the civil system, particularly in family law, which is where the need is the greatest. My students, for example, handle trials in the criminal courts for summary conviction matters. I would like to see them do super-summary matters, which would be like drinking and driving trials. That is not allowed right now by the Criminal Code. If that were changed it would allow us to do so.

As far as paralegals go, I think they can take also a more significant role to help keep costs down in a limited way. In Ontario, as you know, paralegals are governed by the law society. They handle small claims court, landlord and tenant, and some other tribunals. I think there is some leeway for expanding their role.