The Cost of Legal Representation and the Social Contract
Michael K. E. Thiele
Presently in Canada and in Ontario specifically, our governments appear to be straining against unrelenting budget pressures. Cuts, cuts, cuts, and more cuts. Cherished social programs (CPP, Ontario Works), provincial parks, federal parks, scientific research programs, food safety inspectors, grants to charitable organizations, infrastructure of all kinds, healthcare, all areas of federal, provincial and municipal responsibility alike, and frankly it seems anything that government touches is under threat of being cut. Even the civil service itself, and the services it provides to Canadians is not immune to the government’s penchant for cutting.
Where cuts attain efficiency or result in a better delivery of services or even increased services in a different but improved manner one could say that the cost cutting exercise is not only necessary but incredibly valuable. There is of course the opposite effect and it is that effect that the government also needs to consider. Cutting too close and too much risks killing the patient and pray what is the good of that?
The Ontario government, in relation to the ability of Ontarians to access justice, is going down the road of destroying the peoples’ belief that society is fundamentally Just and that the justice system, once accessed, is designed to deliver justice. How is this happening?
The answer to this question lies in the way legal services are delivered to Ontarians. For many, if legal services are required, they go to a lawyer or law-firm, explain the problem, pay a retainer, and hire the lawyer to plead their case, make the argument, do the paperwork, and ultimately achieve their goal. The process is expensive but necessary and ultimately it works out—or at least it used to. To those people in the legal industry there is an apparent trend of the cost of justice increasing beyond the reach of the average citizen. A more complicated and bureaucratic legal system, increased regulation of lawyers, more red tape, the H.S.T. being applied to legal fees, have all conspired to drive up hourly rates to amounts far in excess of the ability of regular people to pay.
The typical cost of a family law case, child custody matter, a breach of contract case, a wrongful dismissal, an insurance claim, is so high that the fees associated with such a run of the mill case will easily consume the entire annual before tax salary of the average Ontarian. For anyone who is compelled to participate in the legal system it is fairly common for them to become indebted to the point of insolvency before a case is resolved. Ultimately they are driven to settle or abandon their case on any terms on offer because they can not afford to continue. If this is the typical experience; is this justice?
As citizens concerned about the social contract we need to be concerned about the cost of access to justice. Why? Because, as Wilhelm Joseph once said, “the failure to invest in civil justice is directly related to the increase in criminal disorder. The more people feel there is injustice the more it becomes part of their psyche.” What this means to the social contract, the rules that govern our society, is that people will not feel bound by the terms of the contract and as a result civil society begins to erode. When people don’t feel that reporting things to the police is worth it, or they don’t believe that they can access the Courts for Justice—what can reasonably be expected of them? Over time, they find their justice in other ways.
The “other ways” is something for all of us to be concerned about. The “other ways” range from vigilantism, self-help, the underground economy, and is bounded only by the human imagination. Once set free from the social contract—how do you get the people back and make society civil again?
As we often explain to clients seeking legal help, suing people who have nothing to lose is a pointless exercise as there will ultimately be no recovery and likely only a bankruptcy if you push to hard. What is the value in that? Where is the justice?
In these years of ratcheting up cost cutting initiatives in government it is clear that the access to Justice is being destroyed with the reduction and elimination of Ontario Legal Aid funding. Over the last decade or two we’ve watched how income eligibility criteria have become so low that a person needs to be virtually destitute before qualifying. Further, funding for legal aid certificates have been cut and once funded areas of the law are no longer eligible for legal representation through legal aid. Whereas legal aid once funded lawyers to provide legal services to the poor, increasingly Ontario Legal Aid is relying on community legal workers working under the supervision of a real lawyer to provide legal services. Cheaper yes, better no.
There doesn’t seem to be much sympathy for the poor among us—especially when it comes to legal aid. To understand this is it is worthwhile to note that there is a jealousy against those who qualify for legal aid. In my experience, this jealousy tends to come from people who, on their incomes, should also qualify for a legal aid certificate and as any lawyer can tell you—there are increasingly more people like that. An unfortunate political reality seems to be that it is popular to remove benefits from groups in society (the poor, civil servants, anybody with a pension, any unionized employee) as chopping benefits and bringing all groups down to the lowest common denominator appears to score political points and is therefore preferable to bringing everyone up to the higher standard. Why is this?
Returning to the theme of the social contract, the danger we face in denying people effective access to justice is that the bonds and rules that govern civil society will erode, decay, and disappear. Then in Canada, like in the USA, we will all have to carry guns, gate our communities, and fear our neighbours.
Ontario needs to recognize the profound importance that the Justice system plays in keeping our society civil. Not only must people be able to access Justice—people must generally believe that intractable problems can be taken to Court, by all citizens within our communities and set that Justice will be done. Take away that access, and that belief, and anarchy will slowly emerge and rein.
One way to maintain the belief in Justice is to establish a healthy legal aid system that in one form or another guarantees all persons access to justice in all cases. If everyone who needs a lawyer, who needs a Judge to serve up Justice, could be assured of such help, not only would the individual be better served but our society as a whole would be stronger, safer, more cohesive and egalitarian.
If you accept the premise of this article at all, consider contacting your MP and MPP and let them know that access to Justice for all Ontarians is an important issue for you and that you would like the Government to expand the range of services covered by Legal Aid Ontario and that all Ontarians who can’t afford legal services should be entitled to a qualified lawyer to represent them.
The opinions expressed in this article belong to the author, Michael K. E. Thiele and not necessarily to all of the lawyers at QTMG LLP.
Michael K. E. Thiele
Quinn Thiele Mineault Grodzki LLP
310 O’Connor Street
Ottawa, Ontario, K2P 1V8