Access to Justice – Canada's Unaffordable Legal Services – CanLII as the Necessary Support Service
65 Pages Posted: 26 Jan 2014
Date Written: December 10, 2013
The solution to the “access to justice” problem that the majority of the population cannot obtain legal services at reasonable cost, is to enable the Canadian Legal Information Institute (CanLII) to provide the support services to all lawyers in Canada, that the LAO LAW division of Legal Aid Ontario (LAO) provides to lawyers in Ontario who do legal aid cases. In contrast, all of the literature and conferences that this most serious of access to justice problems has generated, suggest solutions that involve treating the symptoms of the problem but not the cause. For example, the solutions put forward by the Federation of Law Societies of Canada involve cutting the cost of legal services by using: (1) self-help solutions; (2) people of lesser competence than lawyers; (3) pro bono or “low bono” services. This article discusses the inadequacy of those solutions.
The long history of law society failure to solve this problem is due to a lack of understanding of its cause. As a result, the solutions that have been recommended are meant to improve the existing system of providing legal services. That is the cause of the problem, the preservation of the existing system — the "handcraftsman’s" method of delivering legal services. Instead, LAO LAW enables the use of a “support services” method of delivering legal services. If the legal profession in Canada does not make that transition, the problem will never be solved. It has to be solved, otherwise the small and middle-sized law office will not be preserved, and government intervention will be necessary — either by: (a) a program of socialized law by way of government-funded legal services; or, (b) enabling the free enterprise competitive marketing of legal services.
LAO LAW has a 35-year history of success in supplying fact-specific legal research services, and several other support services developed from that initial research service. It has solved a smaller version of the very same problem. It has saved LAO millions of dollars that would otherwise have been paid out on lawyers’ accounts for legal research. The Federation of Law Societies of Canada is the sponsor of CanLII, which is “funded by Canada’s lawyers and notaries for the benefit of all.” At present, CanLII provides free online access to court and tribunal decisions and to statutes from all jurisdictions in Canada. It is a national service available in both English and French, with an impressive record of accomplishment. But its present service cannot provide a solution to the problem. All legal services are based on legal research. Therefore CanLII could substantially reduce the cost of legal services provided by lawyers if it could provide the support services at cost that LAO LAW provides. Therefore the solution lies in the hands of the law societies.
But such innovation will not happen if there is not sufficient fear of the interaction among: (1) the consequences of not solving the problem; (2) the power of the internet, the social media, along with the news media to quickly turn those consequences into a major public issue — particularly so by the publication of the sad stories of the high percentage of unrepresented litigants caused by unaffordable legal services; (3) the well established progress of the loss of self-regulation by law societies in other countries; (4) the fact that the consequences of the unavailability of legal services at reasonable cost will motivate the many non-lawyer legal services providers to offer to people desperate for a lawyer’s services, which they cannot afford, legal services that should be provided by lawyers; and, (5) the attention brought to these factors by publicized reports and discussions as to: (a) whether there should be an official regulator of non-lawyer providers of legal services; and, (b) if so, should that regulator be the law society in each jurisdiction. If a law society cannot regulate the provision of legal services in its own profession, how can it be expected to adequately regulate the provision of legal services by other professions?
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