Canadians encounter multiple barriers in accessing the justice system, including steep lawyers’ fees, delays in court proceedings and complex legal documents. Members of marginalized communities are especially likely to face these barriers, but even middle-class consumers of legal services encounter them.
Increasingly, Canadians go to court without a lawyer. Roughly 50 to 80 percent of family-law litigants and 30 to 40 percent of civil litigants represent themselves, said Julie Macfarlane, a professor of law at the University of Windsor and director of the National Self-Represented Litigants Project (NSRLP). The Canadian Bar Association has described the situation as “abysmal” and Beverley McLachlin, while she was chief justice of the Supreme Court of Canada, repeatedly criticized it.
While judges and lawyers wring their hands over the problem, some Canadian law schools are undertaking initiatives to improve access to justice. The NSRLP publishes on its website resources prepared specifically for self-represented litigants, or SRLs. They cover such topics as reading and understanding case reports (judges’ rulings) and dealing with opposing counsel.
Its most widely used resource is Coping with the Courtroom, which offers advice on surviving what SRLs consider the most intimidating part of the legal process: participating in a hearing. “It gives people background on what to prepare and what to expect, even when to stand up and sit down, which many people don’t know,” said Dr. Macfarlane.
Among the tips is to bring a “McKenzie friend,” a friend or family member who sits alongside the self-represented litigant. Their role is to provide practical and emotional support during the court process by helping to keep the SRL organized, calm and focused.
The NSRLP also maintains a nation-wide directory of some 300 lawyers who are willing to offer SRLs affordable assistance in the form of “unbundled,” or à la carte, legal services. The project intervened successfully at the Supreme Court of Canada last year in the Pintea case, which involved a self-represented litigant.
The court’s ruling endorsed the Canadian Judicial Council’s statement of principles for fair and equal treatment of SRLs. These require judges and court administrators to “do whatever is possible to provide a fair and impartial process and prevent an unfair disadvantage” to SRLs.
Meanwhile, the faculty of law at Thompson Rivers University offers students a course in developing legal apps designed to improve access to justice either by automating tasks for pro bono lawyers or by providing information and tools directly to the public.
“I don’t think technology is a complete solution [for access to justice], but it has to be part of the solution,” said associate professor Katie Sykes, who pioneered the course. “One of the reasons legal services are not affordable is that they’re not delivered in an efficient way.”
Her students, using a platform created by AI software company Neota Logic, are able to build the legal apps without needing to know how to code. “The students do have to develop some skills that are unfamiliar to them,” said Prof. Sykes, “but these tend to grow out of their legal skills,” as they involve writing and organization.
Working in teams, her students have developed six apps, none of which is yet publicly available for download. The one that’s furthest along was developed for the non-profit Animal Justice Canada and will help citizens file animal abuse reports to the right agency – responsibility is diffused among multiple authorities. An app being developed for the Public Interest Advocacy Centre will help mobile-phone users in filing complaints under the Wireless Code of Conduct. A document “genie” for the law school’s own community legal clinic will help clinic staff and volunteers to complete frequently requested documents.
At the Université de Montréal faculty of law, the Cyberjustice Laboratory has created PARLe (Platform to Assist in the Resolution of Litigation electronically), software that online services can use to resolve low-intensity disputes out of court through negotiation and mediation within a secure and private environment.
Quebec’s Consumer Protection Agency (l’Office de la protection du consommateur) uses the PARLe platform to resolve disputes between retailers and aggrieved Quebec consumers. The average case filed on PARLe takes only 27½ days to settle, compared to a 12- to 18-month wait for cases to be heard in Montreal’s Small Claims Division at the Court of Québec.
“It’s 13 times less expensive for a dispute to be settled online than through a hearing at Small Claims Division,” said Karim Benyekhlef, a professor of law at U de M and director of the CyberJustice Laboratory. “We’re hoping to have the low-intensity disputes that aren’t resolved through negotiation or mediation be adjudicated online by Small Claims Division.”
PARLe is also in use by Ontario’s Condominium Authority Tribunal. “In the near future, I expect we’ll see more small claims courts and administrative tribunals using this kind of platform,” said Prof. Benyekhlef. “For online dispute resolution, the time is right.”