canadian journal of poverty law -v3i1 · ·...

Canadian Journal of Poverty Law – Volume 3, Issue 1

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Canadian Journal of Poverty Law

Vol. 3. No. 1 (May 2015)

Table of Contents

The Editorial Board ................................................................................................................. 2 Looking Out / Looking In ...................................................................................................... 5

Women, Poverty, and Public Policy ................................................................................... 5

Poverty Law, the Future of Legal Services and Access to Justice: Towards ABS+ ..................................................................................................................................................... 10

Looking Out/Looking In – Part II ..................................................................................... 48

Re-‐defining access to justice: concerning trends for low income people* ........ 53 Looking Out/Looking In – Part III ................................................................................... 76

Maximizing Community and Interdisciplinary Impact: The Civil Practice Clinic at the Indiana University Robert H. McKinney School of Law ............................... 82 Looking Out/Looking In – Part IV ................................................................................... 88

Law Students' Legal Advice Program (LSLAP) ............................................................ 92

Looking Out/Looking In – Part V ..................................................................................... 96


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Canadian Journal of Poverty Law

Vol. 3. No. 1 (May 2015)

The Editorial Board

Editor-‐in-‐Chief

Leif Jensen

Board Members

Professor Melanie Abbott

Quinnipiac University School of Law

Professor Suzanne Bouclin Faculty of Law, University of Ottawa

Professor Sarah Buhler

College of Law, University of Saskatchewan

Professor David Cowan School of Law, University of Bristol

Professor Diana Alexandra Castañeda Guerrero

Universidad Santo Tomás

Professor Daniel Hatcher University of Baltimore School of Law

Vicheka Lay LL.M. Student

Faculty of Law, McGill University

Peter Lunenborg Research Officer

South Centre, Trade for Development Programme

Sarah Marsden, Ph.D


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Supervising Lawyer Law Students Legal Advice Program

Benoît Mayer Ph.D Candidate

Faculty of Law, National University of Singapore

Professor Frank Munger New York Law School

Katrina Pacey

Litigation Director Pivot Legal Society

Dr. Simon Pemberton Birmingham Fellow

School for Social Policy, University of Birmingham

Professor Marilyn Poitras College of Law, University of Saskatchewan

Professor Gemma Smyth

Windsor Law, University of Windsor

Wei Zhuang Ph.D Candidate

Faculty of Law, University of Geneva


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Looking Out / Looking In Women, Poverty, and Public Policy

“Looking Out/Looking In” Low income women are often subject to scrutiny and surveillance by others. In this project, we were behind the lens, not under the lens. We looked in at our own experiences and out at the world from our own perspectives. We look out for all the obstacles that come from living in poverty and we look for all the good things that keep us going. We encourage people in communities to look out for each other, by developing just policies and treating everyone with dignity and respect. We are looking for change and hoping to make a difference. Looking for an Integrated Strategy to End Poverty Our goal in this project is to use our words and photographs to raise public awareness and influence public policies to reduce poverty and improve the conditions of women’s lives. Saskatoon Photovoice Photographers

• Butterfly Russell* • Dawn McGraw* • Elaine Gamble • Genevieve Jones* • Lynn* • Mary Jane* • Moe S.* • Nadia • Smith • Virginia Beebe

*Some of the women have chosen pseudonyms to protect their anonymity. Saskatoon Photovoice Committee

• Vanessa Charles, Saskatoon Antipoverty Coalition • Debbie Frost, National Antipoverty Organization • Kathryn Green, University of Saskatchewan – Community Health &

Epidemiology • Lorraine Marquies, Saskatoon Health Region • Carolyn Rogers, Saskatoon Antipoverty Coalition • Kay Willson, Prairie Women’s Health Centre of Excellence

This project has been sponsored by the Saskatoon Antipoverty Coalition and the Prairie Women’s Health Centre of Excellence.


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Being in Poverty Hurts! Genevive Jones*

The pain and stress affect all areas of one’s life. It is often acted out in

destructive ways including: inability to trust and build support—friends or community programs, etc.—

through addictions, child abuse of all kinds, and/or spouse abuse.


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It’s Like You’re Handicapped Elaine Gamble

This is a picture of my daughter’s prosthetic limb. It helps her overcome her limitations. When you’re living in poverty it is like you are handicapped because there are so many restrictions, so many limitations.

Someone can go in the store and buy a magazine or a shirt that they need for their kid. They can go ahead and buy it, but you can’t, because you have to think about other things. You have to think, ‘Well, if I buy that, then I can’t pay my phone bill. If I buy that, then I can’t get this for my kid.’ You’re always shortchanging. Sometimes my daughter needs something at school—a book fair or school function. She can’t go or participate because I had to buy Pampers or wipes for the baby instead.


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Vacation?! Genevieve Jones*

Places like this— McNally Robinson, the public libraries, the Mendel and other art galleries, the University Geology Building—are my usual

vacation spots. And closer to home when I'm not feeling well. Out of city, or province, or country are not things I have money for, unless I choose not to eat properly, or make other such sacrifices.


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Poverty Law, the Future of Legal Services and Access to Justice:

Towards ABS+

David Wiseman*

Introduction

The Canadian legal profession, together with a wide array of justice system

participants and stakeholders, is currently engaged in two much-‐needed debates:

one about the need to modernize the legal services sector;1 the other about the need

to significantly improve access to justice.2 The legal services sector debate is

primarily focused upon the paying or private market for legal services, whereas the

access to justice debate necessarily devotes substantial attention to the provision of

free or low-‐cost publicly subsidized legal services. Understandably, the justice

needs of people living on low income, who typically find private market legal

services unaffordable or otherwise inaccessible, figure more prominently in the

access to justice debate. In this paper, I consider the extent to which the legal needs

of people living on low income – including, but not limited to, traditional ‘poverty

law’ needs – ought to be given greater attention in an aspect of the legal services

sector debate.

Although the two debates come from different starting points and do not address

the same issues, they intersect at the point where it is recognized that traditional

private market models for delivery of legal services entail barriers to access to * Assistant Professor, Faculty of Law, Common Law (English) Section, University of Ottawa. Thanks to Nathan Piche and Jessica Stansfield for research assistance (and to the University of Ottawa, Undergraduate Research Opportunities Program and the Law Foundation of Ontario for funding their respective positions). Thanks also to Richard Devlin and Malcolm Mercer for valuable comments on earlier drafts, as well as to the anonymous reviewers. 1 The Canadian Bar Association (CBA) is taking a leading role in this debate with its Legal Futures initiative: see online CBA, http://www.cbafutures.org/The-‐Reports/Futures-‐Transforming-‐the-‐Delivery-‐of-‐Legal-‐Service 2 The CBA is also taking a leading role in this debate with its Envisioning Equal Justice initiative: see online CBA, http://www.cba.org/CBA/equaljustice/main/. Other prominent participants are the Canadian Forum on Civil Justice (CFCJ) and the Action Committee on Access to Justice (AC-‐A2J) (whose work is hosted by the CFCJ): see online CFCJ, http://www.cfcj-‐fcjc.org/action-‐committee


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justice and, relatedly, where it is thought that modernization could improve the

affordability (or other aspects of accessibility) of private market legal services. An

aspect of this intersection which is receiving considerable attention is the idea of

expanding the allowable range of business structures that can be used for the

delivery of legal services in the private market – in particular, the idea of allowing

so-‐called ‘alternative business structures’ (ABS).3 Briefly put, allowing ABS involves

approving non-‐lawyer ownership of entities providing legal services and is done

with the intention of enabling significantly greater application of ‘corporate’

investment and expertise in the private market for legal services.4 The potential for

ABS to improve access to justice through innovations in legal services processes and

‘products’ is being put forward as a key reason for allowing it. At the same time

though, the discussion of allowing ABS readily concedes that any such

improvements will be unlikely to encompass the legal needs of people living on low

income, because it will remain uneconomic to serve their needs at a price they could

afford. Nevertheless, it has been argued that regulatory reform to allow ABS should

still be pursued. In this paper I contend that more ought to be done to explore the

potential for expanding the reach of ABS-‐related improvements into the poverty law

area – that is, doing more to explore what I call ‘ABS+’.

My argument proceeds in two main parts. In Part 1 of this paper I provide an

overview of the concept of ABS, of the experience to date with ABS in other

jurisdictions, and of the current status of the regulatory consideration of the idea of

allowing ABS in Canada, with a focus on the work of the Law Society of Upper

Canada (the Law Society). This discussion includes consideration of the attention

being given to the potential to improve access to justice, as well as the increasing

recognition of a need for contextualized analysis of the relevant issues. I conclude

3 For instance, and as will be explained further below, the Law Society of Upper Canada (LSUC) has established a Working Group on the idea: see online LSUC, http://www.lsuc.on.ca/ABS/ . The idea also figures prominently in the report of the CBA Legal Futures initiative, Futures: Transforming the Delivery of Legal Services in Canada (CBA: Ottawa, 2014), see online CBA, supra note 1. 4 By using the label ‘corporate’ I am adopting a concept used by Gillian Hadfield in her work in this area: see, in particular, G. Hadfield, “The Cost of Law: Promoting Access to Justice Through the (Un)Corporate Practise of Law” (2104) International Review of Law and Economics (forthcoming); USC CLASS Research Paper No. 13-‐4; USC Law Legal Studies Paper No. 13-‐16. Available at SSRN: http://ssrn.com/abstract=2333990


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Part 1 by identifying the possibility of exploring ABS+. In Part 2 I seek to illuminate

the idea of ABS+ by discussing ABS in relation to traditional poverty law needs. I

first address the likely general impact of allowing ABS on those needs, which

includes an explanation of why the extent of access to justice gains for people living

on low income is likely to be limited, and also an identification of the potential for

collateral damage to their interests. I then introduce the idea of developing a

modified form of ABS (i.e. ABS+) that might do more to meet the legal needs of

people living on low income. I consider why ABS+ ought to be explored and then

discuss how it might be pursued. I conclude Part 2 by addressing some possible

arguments against considering ABS+, which ultimately circle back to a further

reason to include ABS+ within the scope of the current Canadian regulatory reform

debates.

1: ABS and Access to Justice

As a precursor to considering ABS, access to justice and the legal needs of people

living on low income, it is useful to briefly define the concept of access to justice that

informs my analysis. Access to justice remains a contested concept and has been

defined in various ways with varying scope.5 For the purposes of this paper I use a

general and broad conception of access to justice but with an emphasize on the

procedural dimension of access to legal services and resources rather the

substantive dimension of access to social justice. In this conception, access to justice

goes beyond the traditional issue of access to legal counsel for court-‐based dispute

resolution to encompass more contemporary notions of access to other forms of

legal assistance, knowledge and resources that are needed for the development of

legal capability, empowerment and participation.6 In keeping with this conception,

5 See, for example: Mauro Cappelletti & Bryant Garth, “Access to Justice: The Newest Wave in the Worldwide Movement to Make Rights Effective” (1978) 27 Buff L Rev 181; Allan C. Hutchinson, ed., Access To Civil Justice (Toronto; Carswell, 1990); William Conklin, “Whither Justice? The Common Problematic of Five Models of ‘Access to Justice’” (2001) 19 Windsor YB Access Just 297; Roderick Macdonald, “Access to justice and law reform” (2001) 19 Windsor YB Access Just 317; Patricia Hughes, “Law Commissions and Access to Justice: what justice should we be talking about?” (2008) 46 Osgoode Hall LJ 773; and, Trevor Farrow, “What is Access to Justice?” (2014) 51:3 Osgoode Hall Law Journal 957. 6 This conception draws in particular upon the following scholarship: Roderick Macdonald, “Access to Justice in Canada Today: Scope, Scale and Ambitions” in Julia Bass, William A Bogart & Frederick H Zemans, eds, Access to Justice for a New Century – The Way Forward (Toronto: Law Society of Upper Canada, 2005); and, Ian Morrison &


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common barriers to access to justice include the familiar factor of the cost (or

affordability) of legal representation, but also include the affordability of other legal

services and resources, as well as aspects of accessibility (other than cost) relating

to where, when, how and whether relevant services and resources are available. As

such, a lack of access to justice may be caused by a failure to make services and

resources available on a basis that is adequately attuned to differentiating factors

that range from geographic location (e.g. urban, rural, or remote) to social

inclusivity (e.g. high or low literacy, majority or minority language, internet/digital

functionality, dependence and/or vulnerability).7 Measures to improve access to

justice range from the challenge of dismantling discrimination to a willingness to

create more ‘user-‐friendly’ law firm websites.

With this conception of access to justice in mind, I now move to a discussion of ABS

and access to justice. Throughout the discussion mention will be made of some

more specific barriers to access to justice, and ameliorative measures, that are

particularly relevant to the activities associated with ABS-‐entities and the context of

people living on low income.

A. ABS: Concept and Comparative Context

Up until relatively recently, throughout the jurisdictions of the common law world,

private market legal services have only been delivered by entities that are 100%

owned and controlled by lawyers (or, in some jurisdictions, others licensed to

deliver legal services, such as paralegals). Traditionally, the dominant business

forms have been sole practice and lawyer-‐partner firms. In all jurisdictions there

Janet Mosher, “Barriers to Access to Civil Justice for Disadvantaged Groups” in Ontario Law Reform Commission, Rethinking Civil Justice: Research Studies for the Civil justice Review (Toronto: Ontario Law Reform Commission, 1996) Vol 2. The conceptions of access to justice put forward in these works include a requirement for substantive social justice – Macdonald refers to procedural, substantive and symbolic dimensions of access to justice – but for present purposes that element will not be emphasized. 7 Thinking in particular of the social context that can inform the lives of people living on low income, access to justice may be challenging to obtain in relationships that involve dependence and vulnerability (such as relationships with landlords, social program staff or support workers) or where people lack awareness of their basic legal rights and entitlements and the legal dimensions of their everyday struggles. See Morrison & Mosher, ibid, and the CBA and AC-‐A2J reports supra note 2.


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are usually also prohibitions on non-‐lawyers (or non-‐licensees) delivering any or, at

least, a ‘reserved’ or ‘protected’ core of legal services, as well as restrictions on the

extent to which non-‐legal services can be provided by an entity that provides legal

services.

Depending on the form it takes, ABS provides a vehicle for allowing more extensive

non-‐licensee ownership, potentially all the way to 100%, and allowing greater

mixing of legal and non-‐legal services. In terms of ownership, ABS essentially allows

for a form of business structure that already exists in the broader economic system

– the public or private for-‐profit business corporation – and that is permitted in

many other professions.8 ABS was introduced as an allowable organizational form

in Australia in 2000 and in the UK in 2011.9 It is not yet allowed in the United

States, but a debate appears to be re-‐opening there.10

The origins of the introduction of ABS in other jurisdictions owes a great deal to

broader movements towards economic deregulation, liberalization and dismantling

of artificial barriers to free market competition.11 There are two basic strains to

this ‘liberalization’ argument for allowing ABS.12 The negative-‐liberty strain is that,

given the wide availability of the for-‐profit business corporation structure in

modern capitalist countries, prohibition of the structure in the legal services sector

is an artificial interference with economic liberty. The positive-‐liberty strain is that

allowing ABS will provide an incentive or vehicle for the introduction of new forms

of ‘corporate’ financing and management expertise into the legal services sector

that, in turn, will spur competition, efficiencies and innovations in the design,

development, marketing and delivery of legal services (and ‘products’) that will

ultimately yield economic gains for either the providers or the consumers of legal

8 For an overview of business forms and of the forms allowed in other professions, see Hadfield, supra note 4. 9 A multi-‐jurisdictional analysis of the introduction of ABS is undertaken in R. Devlin and O. Morison, “Access to Justice and the Ethics and Politics of Alternative Business Structures” (2012) 91:3 Canadian Bar Review 483. 10 See Devlin and Morison, ibid, at 536-‐7. 11 See Devlin and Morison, supra note 6. 12 An overview of the range of more detailed arguments for and against allowing ABS is provided in Devlin and Morison, supra note 6, at 493-‐9.


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services or, hopefully, both. To the extent that the liberalization argument connects

to gains for consumers it can be regarded as a consumer welfare argument.

In addition to the liberalization argument for allowing ABS there is an access to

justice argument, which has been present in other jurisdictions though has probably

risen to greatest prominence in the Canadian debate.13 In terms of access to justice,

it is argued that the innovations associated with allowing ABS will lead to

improvements in affordability (i.e. lower cost) and also other aspects of

accessibility, such as what might be called ‘consumer-‐friendliness’ (i.e. less

intimidating forms of legal services). These changes can then increase access to

justice both for those who are already seeking legal services within the paying

market, as well as for those who will be newly willing and able to seek paid legal

assistance.

Thus far, both previously in other jurisdictions and at present in Canada, the main

objection to allowing ABS has been framed in terms of the potential negative impact

that a newly enhanced profit-‐making pressure, coming from non-‐licensee owners,

will have on lawyers’ (and paralegals’) ethical obligations and related professional

responsibilities.14 This is also referred to as an issue of ‘regulatory risk’, that is, the

risk that allowing ABS will have a negative impact on the objectives of legal services

regulation, which typically include ensuring not only professional ethics but also

professional competence. This may appear to set up a contest between maintaining

legal ethics and improving access to justice. In fact though, if the main reason we

care about the potential negative impact on legal ethics and professional

responsibility is, ultimately, consumer welfare, then the contest is really between

the welfare of consumers – including current or world-‐be consumers experiencing

13 Devlin and Morison, supra note 6, at 550-‐3. 14 See, for e.g., Law Society of British Columbia, Independence and Self-‐Governance Advisory Committee, Alternative Business Structures in the Legal Profession: Preliminary Discussion and Recommendations (LSBC: Vancouver, October 2011), online LSBC: http://www.lawsociety.bc.ca/docs/publications/reports/AlternativeBusinessStructures.pdf


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barriers to access to justice – and the interests of producers (including licensees and

non-‐licensees).

B. ABS take-‐up and impact

In both the UK and Australia, allowing ABS has generally taken the form of allowing

up to 100% non-‐licensee ownership and allowing unrestricted mixing of the

provision of legal and non-‐legal services. The concerns over regulatory risk are

recognized in each jurisdiction but have been addressed by different means. In

both jurisdictions the relevant legal profession regulators have long-‐standing codes

of professional conduct that prioritize lawyers’ duties to clients and the

administration of justice over their own self-‐interest and the interests of third

parties.15 With the introduction of ABS, the UK layered on a ‘fitness to own’ test

which is applied at the threshold of ABS-‐entity approval.16 In Australia, new rules

were introduced to require that a lawyer within an ABS-‐entity be assigned overall

responsibility for legal ethics and professional responsibility and for establishing

appropriate systems for ethical oversight and infrastructure.17 There has been

considerable ‘take-‐up’ of the ABS opportunity in both the UK and Australia, although

much of it has involved small firms seeking to give an equity stake to family

members or existing non-‐licensee employees involved in management functions.18

15 See New South Wales Professional Conduct and Practise Rules 2013, online at: https://www.lawsociety.com.au/ForSolictors/professionalstandards/Ruleslegislation/SolicitorsRules/index.htm and, for the UK, the Solicitors Regulatory Authority Code of Conduct 2011, online at: http://www.sra.org.uk/solicitors/handbook/code/content.page 16 The regulatory structure for ABS in the UK is multi-‐faceted and involves a number of regulatory entities who compete in the regulatory ‘marketplace’. Their activity is supervised by the Legal Services Board (the LSB) which issues mandatory guidelines that apply to the activities of the various regulators. The necessity of a ‘fitness to own’ test is outlined in the LSB’s “Alternative Business Structures: Approaches to Licensing” at 29-‐30 (in Schedule 13 – Ownership of Licensed Bodies) available online: http://www.legalservicesboard.org.uk/what_we_do/consultations/closed/pdf/abs_guidance_on_licensing_rules_guidance.pdf . The UK regulatory approach is described in S. Mark, T. Gordon, M. LeBrun, and G. Tamsitt, “Preserving the Ethics and Integrity of the Legal Profession in an Evolving Market: A Comparative Regulatory Response”, paper presented at the Regulating and Deregulating Lawyers in the 21st Century, 3 & 4 June 2010, London, England and available online at: http://www.olsc.nsw.gov.au/agdbasev7wr/olsc/documents/pdf/preserving_ethics_integrity_legal_profession_uk_paper.pdf 17 For example, see s. 140, Legal Profession Act (NSW). In addition, the NSW legal regulator (the Office of the Legal Services Commissioner) has encouraged ABS-‐entities that pursue public listing to explicitly state in their constitutions that they will operate under a hierarchy of interests: first the court (or the public interest in justice), second the client, and only third the owner. See Mark, Gordon, LeBrun and Tamsitt, ibid. 18 For an overview of take-‐up, see Devlin and Morison, supra note 6.


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Beyond that market segment, attention has been captured by early ABS-‐adopters,

including Riverview Law, Quality Solicitors and Cooperative Legal Services in the UK

and Slater & Gordon and Shine Lawyers in Australia. These ABS legal services

entities provide services in a variety of legal areas, including personal injury, family

law, real estate, and wills and estates.

In terms of the impact of allowing ABS on legal ethics, consumer welfare and access

to justice, little empirical analysis has been conducted in Australia and it is still early

days in the UK. At an informal level, even a cursory perusal of the websites of the

ABS entities mentioned above reveals an apparent impact on consumer-‐

friendliness.19 The websites adopt uncluttered, text-‐light, easy-‐to-‐navigate layouts

for providing information about the legal services offered by the relevant entities

that reflect the website templates that are common in other consumer sectors.

There is also evidence of segmenting and packaging of legal services options to

provide differential price points for different levels of service-‐need complexity.

There appears to be significant development of technological tools for providing

legal services including, for instance, online ‘will-‐building’ processes. Corporate-‐

consumer ‘branding’ practices are also prominent.

More formally, in terms of impact assessment, one issue that has been studied in

Australia is the impact of the necessity that ABS entities establish an internal

infrastructure for consumer complaints and ethical issues.20 It was concluded that

these requirements had a positive impact and, indeed, may have provided better

consumer and ethical outcomes compared to those in other business structures for

legal services.

19 See, for instance, the following websites: http://www.qualitysolicitors.com/; https://www.slatergordon.com.au/; and, https://www.shine.com.au/. 20 C. Parker, T. Gordon and S. Mark, “Regulating Law Firm Ethics Management: An Empirical Assessment of an Innovation in Regulation of the Legal Profession in New South Wales” (2010) 37 Journal of Law and Society 466.


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A more recent and expansive attempt to survey the impact of ABS, undertaken by

Nick Robinson,21 examines the experiences with ABS-‐form legal services providers

in the UK and Australia, as well as ABS-‐like providers in the US.22 Robinson’s study

includes a review of evidence from the UK and Australia on the impact of allowing

ABS on the personal injury legal services sector, as well as a review of family law in

the UK and of online legal services and social security disability representation in

the US. Overall, Robinson finds little evidence of either significant negative impact

on legal ethics or significant positive impact on access to justice in the areas he

surveys, but some more particular aspects of his analysis are worth noting.

In relation to ethics, the main concerns identified by Robinson arise from the

potential exacerbation of already-‐existing ethical problems and tensions. For

instance, in the personal injury sector, allowing ABS may have presented new

opportunities for the age-‐old tension between the interests of insured and insurer to

materialize. Likewise, in the area of social security disability representation in the

US, the opening for ABS-‐like organization and associated scaling-‐up of operations

may have produced an amplification and normalization of questionable ethical

practices, such as representatives not meeting with clients until the day of a hearing.

To the extent that Robinson detects some new ethical concerns, they are not

strongly evident or are only speculative at this point.23

Turning to access to justice, Robinson notes that this may not have been a significant

issue in the personal injury sector but, in any event, finds it difficult to identify any

21 N. Robinson, “When Lawyers Don’t Get All the Profits: Non-‐Lawyer Ownership of Legal Services, Access and Professionalism” (August 27, 2014), HLS Program on the Legal Profession Research Paper No. 2014-‐20, online at SSRN: http://ssrn.com/abstract=2487878. 22 I refer to ‘ABS-‐form’ and ‘ABS-‐like’ in order to signal the distinction between the regulatory framework in the UK and Australia as compared to the US. Although ABS is not yet generally allowed in the US in relation to most of the regulated legal services sector, it is not prohibited in relation to the delivery of legal information, which is largely unregulated, except at the boundary of legal information v legal advice. In addition, in some legal services sub-‐sectors in the US – such as social security disability representation – non-‐lawyers are permitted to provide legal services and this enables the prohibition on ABS to be avoided. 23 For instance, in relation to the personal injury sector, Robinson sees some potential signs that non-‐lawyer ownership may detrimentally affect selection and management of cases. He is also concerned that the personal injury bar may eventually be absorbed into ABS entities that are controlled by the insurance industry with a consequent loss of the bar’s independence and law reform advocacy function.


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clear evidence that access to justice has either improved or declined. In relation to

family law services in the UK, Robinson is willing to accept that the community-‐

oriented ABS-‐form entity Co-‐operative Legal Services has likely been able to offer

more affordable and otherwise more accessible legal services, but finds that any

positive impact has been swamped by coinciding drastic cuts in family law legal aid.

Similarly, Robinson notes anecdotal evidence that the ABS-‐like legal information

provider that he examines, LegalZoom, which has introduced market innovations in

design and delivery of legal information and document-‐building products (and can

refer customers to related legal services), has exerted downward pressure on prices

for legal document creation and legal advice and so has likely improved access to

justice somewhat.24 At the same time though, he can find no evidence that

LegalZoom’s will-‐building products, as a more specific example, have had any

significant positive impact on rates of intestacy in the US. More generally, Robinson

lodges the caveat that “a company like LegalZoom is aimed primarily at small

businesses and the upper middle class … [that is,] people with the capacity to know

they have a legal problem and the resources and savviness to be able to seek out its

answer on the internet and pay for it.”25 This caveat is obviously of particular

relevance to the present discussion. Finally, and also of particular relevance, it

seems implied in Robinson’s analysis of the area of social security disability

representation in the US that there may be aspects of the relationship to clients that

is somewhat predatory – in the sense of taking advantage of client vulnerability to

secure more favourable compensation terms or methods26 – that, if amplified and

normalized like some of the ethically questionable practices, might somewhat

undercut any access to justice gains in that area.

24 Robinson also notes that LegalZoom’s capacity to improve access to justice may be hindered by prohibitions on the authorized practice of law in the US, which mean that it has to have an arms-‐length relationship with the lawyers to whom it can refer customers. Indeed, Robinson notes that LegalZoom has faced court challenges accusing it of intruding into the practise of law and these have probably drained resources that might have been put to better use for consumers. 25 Robinson, supra note 18 at 34. 26 Robinson notes that large-‐scale representation operations benefited from a change in the law that enabled their share of client awards (i.e. their contingency fee) to be paid directly to them, rather than to their client. This undercuts the autonomy of the client and may stifle fee disputes.


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On the basis of these case studies, Robinson makes a more general point that the

context into which ABS is introduced plays a significant role in determining the

experience with it. In Robinson’s view, there are three main ways in which context

matters: context will affect the extent to which ABS is taken-‐up and in relation to

which legal services sectors; context matters in terms of the impact on legal ethics,

professional responsibility and consumer welfare, which will likely vary with

differences between legal service sectors; and context matters in terms of access to

justice benefits. Ultimately, Robinson concludes: [T]he goal should not be deregulation for its own sake, but rather increasing access to legal

services that the public can trust delivered by legal service providers who are part of a larger

legal community that sees furthering the public good as a fundamental commitment.

Carefully regulated non-‐lawyer ownership may be a part of achieving this large goal, but

only a part.27

On the way to that conclusion, Robinson explains in more depth the key contextual

variables and I will return to those shortly, as a precursor to examining the potential

impact on poverty law of allowing ABS in Ontario in Part 2. Also, it should be noted

that Robinson’s study does not specifically address the poverty law sector in any of

the jurisdictions and, since there are some ABS entities in the UK and Australia that

are oriented to that sector, those will be considered in Part 2 as well. In the next

section of this Part though, I review the approach being taken to ABS in Canada in

general and by the Law Society more particularly.

C. ABS: Regulatory Review in Canada

At present in Canada, only a limited range of business structures are permitted for

the delivery of legal services and it is generally the case, and usually required, that

licensed legal professionals (lawyers and paralegals) own and control the relevant

practise entities. The most common business structures are the traditional sole

practises and legal partnerships, along with limited liability legal partnerships and

professional corporations, all of which are by their nature 100% licensee owned and

27 Robinson, supra note 18 at 53.


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controlled. Moreover, these structures must confine themselves to the delivery of

only legal services and are generally prohibited from sharing fees with non-‐

licensees. A more recent option, available in some provinces, is the structure of the

multi-‐disciplinary practice (MDP), which allows licensees to deliver legal services in

partnership with non-‐licensees (typically other, non-‐legal, professionals) who can

deliver non-‐legal services that are ancillary to the particular legal services provided.

Fees may be shared within an MDP with non-‐licensee partners, but the licensees

must retain effective control of the entity. In addition, it should be noted that

Quebec has gone a step further and allows non-‐licensee ownership of up to 49% in

legal service entities – in other words, a limited form of ABS.28

The Law Society of British Columbia appears to have been the first of the provincial

legal profession regulators in Canada to give concerted attention to the issue of

allowing ABS. This resulted in a report that identified and discussed the concept

and potential consequences of allowing ABS, including concerns about negative

impact on legal ethics and professional responsibility.29 Ultimately the LSBC

resolved to keep a watching brief on developments in other Canadian and

international jurisdictions. Not long afterwards the Canadian Bar Association

resolved similarly,30 but now, following an analysis of the issue as part of its Legal

Futures Initiative, it has taken a position in favour of allowing ABS.31 The Nova

Scotia Barristers’ Society is giving consideration to allowing ABS, as part of a

broader process of regulatory transformation,32 and the legal profession regulators

in the prairie provinces – Alberta, Saskatchewan and Manitoba – have embarked on

a joint process to consider the introduction of ABS.33 The Law Society of Upper

28 See: Regulation respecting the practice of the profession of advocate within a limited liability partnership or joint-‐stock company and in multidisciplinarity, RRQ, c B-‐1, r 9. 29 Law Society of British Columbia, Alternative Business Structures in the Legal Profession: Preliminary Discussion and Recommendations (October 2011) online at https://www.lawsociety.bc.ca/docs/publications/reports/AlternativeBusinessStructures.pdf. 30 See the report of the CBA Legal and Governmental Affairs Committee on International Professional Issues (November, 2014), online at http://www.cba.org/cba/epiigram/pdf/international.pdf. 31 See CBA Legal Futures initiative, supra notes 1 and 3. 32 Documents relating to the regulatory transformation project of the Nova Scotia Barristers’ Society are available online at: http://nsbs.org/transform-‐regulation. 33 See press report: Brent Wittmeier, “Prairie Provinces Pondering Overhaul to Delivery of Legal Services”, Edmonton Journal, 11 January, online:


22

Canada in Ontario (the Law Society) is also engaged in a focused consideration of

whether to allow ABS and I will now describe that in somewhat more detail.

The Law Society established an ABS Working Group (the ABS-‐WG) in late 2012 and

its work has resulted in the release of a Discussion Paper and an invitation for input

from the profession and other justice system participants and stakeholders.34 The

ABS-‐WG has identified 4 possible models for allowing ABS in Ontario that emerge

from different arrangements of non-‐lawyer ownership and mixing of legal and non-‐

legal services. In terms of non-‐licensee ownership, the options are to allow either

up to 49% or up to 100% and, in terms of mixed services, to either confine ABS

entities to providing legal services only or to generally allow mixing (although with

potential restrictions in some subject-‐matter areas to safeguard against regulatory

risk).

Consistently with an earlier Report to Convocation,35 the ABS-‐WG Discussion Paper

identified the following considerations as being relevant to deciding between these

models: (a) access considerations; (b) technological considerations; (c) economic

and business considerations; (d) professional and ethical considerations; and (e)

implementation considerations.36 In the earlier Report to Convocation, the ABS-‐WG

took the position that the status quo, which prohibits ABS, should not be maintained

because, in its view, there is a lack of evidence that liberalization would cause harm

and cogent evidence that “ABS may well contribute to the development of more

accessible, flexible, and viable legal services in Ontario.”37 The release of the

Discussion Paper added fuel to what was already a relatively lively debate, especially

http://www.edmontonjournal.com/Prairie+provinces+pondering+overhaul+delivery+legal+services/10720411/story.html 34 Law Society of Upper Canada, ABS-‐WG, Alternative Business Structures and the Legal Profession in Ontario: A Discussion Paper (Toronto; LSUC, 2014) [hereinafter Discussion Paper] 35 Law Society of Upper Canada, Professional Regulation Committee, Alternative Business Structures Working Group, Report to Convocation (February 27, 2014) at para 92, online at: http://www.lsuc.on.ca/uploadedFiles/For_the_Public/About_the_Law_Society/Convocation_Decisions/2014/convfeb2014_PRC(1).pdf [hereinafter Report to Convocation] 36 Discussion Paper, supra note 30, at 10. 37 See Report to Convocation, ibid at para 142.


23

on the website SLAW,38 a Canadian online legal magazine. A summary of the

submissions received on the Discussion Paper has recently been released and attests

to the wide range of views on the desirability of allowing ABS.39

For present purposes, that is, with poverty law needs in mind, there are two

promising aspects of the approach being taken by the ABS-‐WG that should be noted.

First, access to justice, which indisputably needs to be improved for people living in

poverty, is a recognized decision-‐making factor. Second, given the multi-‐faceted

vulnerability of people living in poverty, including as would-‐be consumers in the

private market for any goods and services, a recognition of the potential need to

align the type and degree of liberalization with variation in the type and degree of

regulatory risk to consumer welfare is also important.

However, and conversely, there is an aspect of the ABS-‐WG’s approach that is

potentially deeply troubling from the point of view of poverty law needs. This point

arises from the stance that the ABS-‐WG appears to have taken in response to the

general recognition that the potential access to justice gains arising from allowing

ABS will likely be confined to the private market for legal services and may not

extend beyond the economic strata of the middle class. In its Report to Convocation,

in the section addressing the relationship between introducing ABS and access to

justice, the ABS-‐WG indicated that it held only modest hopes for the extent to which

allowing ABS would serve existing unmet legal needs, stating that “[w]hile it would

be wrong to suggest that ABSs area a panacea, ABSs may play a part in addressing

these legal needs.”40 Moreover, the ABS-‐WG continues, “[p]ermitting new models

for the delivery of legal services and the practice of law is not the sole, nor likely the

most important, solution to issues of access to justice.”41 One way to respond to the

38 See, for instance, a blog post and comments by Mitch Kowalski (a proponent of ABS) http://www.slaw.ca/2013/02/28/abs-‐the-‐fear-‐is-‐palpable/ and blog post and comments by Malcolm Mercer (a co-‐chair of the ABS-‐WG) http://www.slaw.ca/2013/07/04/the-‐access-‐to-‐clothing-‐crisis/ . 39 Law Society of Upper Canada, Professional Regulation Committee, Alternative Business Structures Working Group, Interim Report to Convocation (February, 2015): see online LSUC, http://www.lsuc.on.ca/uploadedFiles/ABS-‐full-‐report.pdf 40 Report to Convocation, supra note 30, at para 119. 41 Report to Convocation, supra note 30, at para 120.


24

apparent limitations of introducing ABS would be to explore the possibility of

establishing specific measures, integrated into the regulatory framework for

allowing ABS, to expand the reach of access to justice gains and, in particular, to

meet the justice needs of people living in poverty. In short, to explore the possibility

of what I am calling ABS+. Thus far though, and troublingly, the ABS-‐WG has given

no sign that it even recognizes the possibility of modifying or customizing ABS

regulation in order to expand the positive impact on access to justice.

In the next Part of this paper I turn to an elaboration of the possibility of ABS+.

2: Into the Spotlight: ABS+

Since the aim of ABS+ would be to extend the reach of ABS-‐related access to justice

improvements to include people living on low income, an exploration of the

possibility of ABS+ necessitates a focus on the nature of legal needs and legal

services in the poverty law sector and other closely related sectors of legal services.

It also necessitates a contextualized inquiry into the impact that ABS might be

expected to have in those sectors. The need to conduct contextualized analysis is

consistent with the key point made by Robinson that the impact of allowing ABS in

any particular jurisdiction will be heavily context dependent. Robinson’s analysis

also identifies four elements of this context that can be expected to produce

variation in impact as they themselves vary and which provide a useful preliminary

foundation for the contextual analysis to be conducted in this Part.

The first contextual element identified by Robinson is variation in capital and legal

services markets, including the size of the investment sector and the sizes of the

legal services sector and particular sub-‐sectors. The second element is variation in

regulation and the impact of specific regulatory rules on incentives for non-‐lawyer

investment and for different forms of investment/entity structuring. A third

contextual element is variation within the legal sector, including the attributes of

different legal services sub-‐sectors, such as: profit margins; potential for economies

of scale; potential for standardization and commodification; and, potential for


25

technological innovation and delivery. The fourth contextual element is ownership

variation, which covers the types of potential non-‐lawyer investors and differences

in their preferences in terms of directions and means of process and product

development and their entity-‐structuring preferences.42

With this framework of contextual variables in mind then, in this Part I first

undertake an analysis of the potential impact of ABS on poverty law and related

sectors and in doing so identify the likely extent and nature of positive and negative

consequences for access to justice for people living on low income. The expectation

of limited and mixed results leads to the idea of exploring ABS+ and so I go on to

consider, in turn, why that idea ought to be explored and how it might be

formulated. I then conclude this Part with a consideration of potential arguments

against exploring the idea of ABS+.

A: ABS and Poverty Law

The term ‘poverty law’ has been defined as describing “the broad areas of law and

legal needs which arise by virtue of an individual’s or a group’s poverty.”43 The

areas of law that are typically identified as constituting the traditional domain of

poverty law are: housing (especially landlord/tenant); income-‐maintenance

(including social assistance, employment insurance, pensions and old age security);

employment (including employment standards, occupational health and safety and

workers’ compensation); and, consumer/debt.44 It is worth noting that all of these

areas comprise civil, as opposed to criminal, legal matters. Other areas of law that

can be readily identified as having significant relevance to people living in poverty

42 Robinson, supra note 18, at 38-‐41. 43 Ontario Legal Aid Review, Report of the Ontario Legal Aid Review: A Blueprint for Publicly Funded Legal Services (Ministry of the Attorney General (Ontario); Toronto, 1996) online http://www.attorneygeneral.jus.gov.on.ca/english/about/pubs/olar/ch11.asp 44 See Report of the Ontario Legal Aid Review, ibid, and Social Planning and Research Council of British Columbia, An Analysis of Poverty Law Services in Canada (Department of Justice, Canada; Ottawa, 2005) online: http://www.justice.gc.ca/eng/rp-‐pr/csj-‐sjc/jsp-‐sjp/rr03_la13-‐rr03_aj13/p0.html#executive_summary


26

are: criminal (including provincial offenses); refugee; domestic violence; child

protection; mental health; and, human rights and disability.45

Insofar as legal services in these areas of poverty law are offered to and utilized by

people living in poverty, there has traditionally been a heavy emphasis on in-‐person

individualized legal assistance provided by lawyers. This is evident both in the

significant reliance on the judicare model by legal aid programs (that provides

publicly funded certificates for retention of private market lawyers at specified rates

of compensation in areas of coverage), as well as in the significant reliance on staff

lawyers in publicly-‐funded law offices and legal clinics. To some extent this

emphasis on in-‐person individualized lawyer assistance must reflect the nature of

the legal needs in poverty law areas. This would certainly seem to make sense in

areas where a judicial or administrative hearing process is likely to be involved, and

especially where that process is criminal, adversarial or quasi-‐prosecutorial

(including, for instance, child protection or refugee matters). Consequently, to the

extent that there are access to justice needs in poverty law in general, an obvious

and important general means for improving access to justice would be to expand the

provision of no-‐fee or very-‐low-‐fee in-‐person individualized lawyer assistance.

Beyond expansion of in-‐person individualized lawyer assistance, recent reports and

scholarship have emphasized that this is not the only means by which access to

justice can be improved in poverty law areas. Leaving aside lawyer-‐centric

measures, such as expanded duty counsel services and allowance of unbundled legal

services, there are three other measures that are receiving attention: improved

public legal information and education; technology-‐enhanced document-‐building for

legal claims and legal transactions; and, expanded scope for non-‐lawyer assistance

with legal problems. The potential of these three measures to improve access to

justice has been attested to both at a general level in recent reports on access to

45 These areas can be identified on the basis that provincial legal aid programs and other forms of publicly funded legal assistance provide service in these areas, albeit to varying extents. For example, see Legal Aid Ontario, Annual Report 2011/2012 (Toronto: Legal Aid Ontario, 2013) online: <http://www.legalaid.on.ca/en/publications/downloads/annualreport_2012.pdf>


27

justice,46 as well as in reports and scholarship directed at legal aid and the legal

needs of people living on low income more specifically.47 A collective scholarly

collaboration on the issue of improving middle class access to justice in Canada

provides examples of consideration and recommendation of the use of these

measures at the more particular level of family law, employment law and

consumer/debt law.48 Although formulated with the needs of people living in the

middle income strata in mind, some of the recommended measures, such as

enhanced public legal information and education, could clearly also be accessed by,

and be of benefit to, people living in the low income strata.49 Other recommended

measures – such as, non-‐lawyer volunteers providing free advice via citizens advice

bureaus or online claim filing with coaching templates – could likewise also be

useful to people living on low income.

On the basis of this brief outline of the poverty law sector, I now move to a

consideration of the extent to which allowing ABS could be expected to have an

impact on the provision of legal services in this sector.

46 See, for instance, the report of the Triage, Prevention and Referral Working Group TPR-‐WG) of the Action Committee on Access to Justice refers to all of these measures as components of the ‘early resolution services sector’ that could be enhanced. See TPR-‐WG, Final Report: Responding Early, Responding Well: Access to Justice Through the Early Resolution Services Sector (Toronto: Canadian Forum on Civil Justice, 2013) online, <http://www.cfcj-‐fcjc.org/action-‐committee 47 See R. Smith, Digital Delivery of Legal Services to People on Low Income: Summary and Recommendations (The Legal Education Foundation; London, 2014) at 8, online: http://www.thelegaleducationfoundation.org/wp-‐content/uploads/2014/12/Digital-‐Delivery-‐Paper-‐1.pdf [hereinafter Digital Delivery]. See also S. Choudry, M. Trebilcock, and J. Wilson, “Growing Legal Aid Ontario into the Middle Class” (at 408) in M. Trebilcock, A. Duggan and L. Sossin, Middle Income Access to Justice (University of Toronto Press; Toronto, 2012). [Middle Income Access to Justice] See also Ontario Ministry of the Attorney General, Report of the Legal Aid Review 2008 (by Michael Trebilcock). 48 The collaborative effort is captured in Middle Income Access to Justice, ibid. The specific studies are: N. Semple and C. Rogerson, “Middle Income Access to Justice: Policy Options with Respect to Family Law” (recommending mandatory information sessions and other enhancements to public legal information and education on family law, at 422-‐3); J. McCormick and A. Remani, “Middle Income Access to Justice: Policy Options with Respect to Employment Law” (recommending enhanced employer and employee information and education programs, at 462, and recommending online claim filing, with template coaching, and increased scope for assistance from court staff (i.e. non lawyers), at 481); and, A. Duggan, A. Remani and D. Kao, “Middle Income Access to Justice: Policy Options with Respect to Consumer and Debtor/Creditor Law” (recommending increased consumer information, a citizens advice (non-‐lawyer) pilot project, and expanded non-‐court dispute resolution and mediation mechanisms, at 517-‐8). 49 At the same time, such measures are not barrier-‐free and may still have limited effectiveness. For analysis of the strengths and weaknesses of these types of measures, and recommendations for increasing effectiveness, see J. Macfarlane, The National Self-‐Represented Litigants Project: Identifying and Meeting the Needs of Self-‐Represented Litigants, Final Report (Kingsville, ON: NSRLP, 2013) at 115-‐19, online: http://www.lsuc.on.ca/uploadedFiles/For_the_Public/About_the_Law_Society/Convocation_Decisions/2014/Self-‐represented_project.pdf


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i. ABS and in-‐person lawyer assistance: possibilities for cross-‐subsidization

From the perspectives of both theory and practice, ABS entities in Ontario would be

unlikely to produce an expansion in the availability of in-‐person lawyer assistance in

poverty law areas, unless they consciously adopt cross-‐subsidization business

models. Even then, as will be explained, cross-‐subsidization models may not be

economically viable, or may not be sufficiently attractive, and, moreover, may not be

available absent co-‐ordinated regulatory reform of broader business organizations

law.

Conceptually, and leaving aside the cross-‐subsidization model for the moment, ABS

is geared to the private, paying, market for legal services, which would rule out the

provision of lawyer assistance at no cost and likely at low-‐cost as well. In theory it

may be possible to imagine the provision of some level of lawyer assistance at no or

low cost as a form of ‘loss-‐leader’ that sets up a consumer relationship that might

gradually evolve into profit-‐making through fees-‐for-‐service, but that would be

dependent upon the likelihood of poverty law clients gradually improving their

socio-‐economic profiles. In-‐person lawyer assistance is also a relatively expensive

‘loss’ for an ABS entity to absorb as compared, for instance, to providing free

publicly-‐accessible legal information. If we turn to a practical perspective though

and, again, leaving aside cross-‐subsidization for the moment, there is little sign in

ABS-‐adopting jurisdictions of the provision of no-‐fee or very-‐low-‐fee lawyer

assistance in poverty law areas by ABS entities. 50 Indeed, Robinson’s study

indicates that even though a community-‐oriented ABS (i.e. Cooperative Legal

Services) in the UK is delivering family law legal services, that may be more

affordable than pre-‐ABS equivalents, this has not prevented a surge in self-‐

representation following drastic cuts to family law legal aid. One factor in the surge

is, presumably, that many people living on low income have lost legal aid

50 There is some evidence of low-‐fee lawyer assistance services being provided in the family law area of separation and divorce. For instance, divorceonline.co.uk offers completion and filing of documents for £69 or, for £189, will manage the entire divorce process, including “dealing” with court processes: see Digital Delivery, supra note 42 at 8.


29

representation and yet cannot afford even the more affordable ABS entity

alternative.

The inability or unlikelihood of ABS entities providing no-‐fee or very-‐low-‐fee lawyer

assistance in poverty law areas therefore represents a significant limit on the

relevance of allowing ABS in terms of improving access to justice for people living in

poverty. However, in both the UK and Australia, some ABS entities have pursued a

business model that involves devoting revenue generated from offering legal

services in the paying market towards the cost of providing free or low-‐cost in-‐

person legal assistance to people living on low income. Indeed, proponents of ABS

in Canada have pointed to such ABS entities and their cross-‐subsidization models as

proof that allowing ABS will lead to improvements in access to justice for people

living on low income.51

In the UK, a cross-‐subsidization model is being used by the Community Advice and

Law Service (CALS), a charitable organization that has long offered legal aid funded

legal clinic services to people living on low income. CALS has established a separate

ABS entity, Castle Park Solicitors (CPS), which focuses on family law and

immigration law and aims its for-‐fee services at people living on low income. CPS

therefore strives to keep fees as low as possible. CALS is regarded as the ‘owner’ of

CPS and all profits generated by CPS are paid to CALS. The hope is that CPS will

generate modest surpluses that can cross-‐subsidize the free services that will

continue to be offered by CALS. Significantly, the impetus for CALS taking this step

was impending drastic reductions in the scope of coverage of legal aid in the UK,

which affected family law and immigration law in particular. CALS developed the

plan for CPS as a means of continuing to serve its low-‐income client population as

affordably as possible. It is too soon to tell whether CPS is itself economically

sustainable and, beyond that, whether it will generate any surplus for CALS. It is

worth noting a report that the cross-‐subsidization-‐via-‐ABS strategy was explored by

51 See, for instance, a blog post and ensuing comments by Mitch Kowalski: http://www.slaw.ca/2014/12/30/anti-‐abs-‐arguments-‐continue-‐to-‐be-‐based-‐on-‐emotion-‐not-‐fact/


30

the Law Centers Network in the UK (an umbrella group for not-‐for-‐profit legal

clinics) and it concluded that the strategy has only very limited potential to generate

meaningful surpluses.52

The doubts over economic viability of the CALS/CPS cross-‐subsidization model

presumably owe much to the fact that CPS is aiming to serve people living on low

income and so has only a limited scope to generate profits that could be transferred

to CALS. A similar limitation would likely exist in Canada. Further, there is a

potentially important regulatory difference between the UK and Canada that might

prevent this particular cross-‐subsidization model being used here, namely, the UK

has established a regulatory framework for so-‐called Community Interest

Companies (CICs).53 The most relevant aspect of CICs is that they must operate to

provide community benefit and are entitled to generate only limited profits for their

owners. CPS exists under the CIC framework.54

The economic constraints of the CALS/CPS model have been avoided in the

Australian example of an ABS using a cross-‐subsidization model, Salvos Legal, which

is owned by the Australian branch of the Salvation Army. Salvos Legal offers

commercial and property law services to corporate entities, as well as services in

residential conveyancing and wills and estates. Salvos Legal has charitable status

and operates on a not-‐for-‐profit basis in the sense that all surpluses generated from

52 See http://www.legalfutures.co.uk/latest-‐news/law-‐centre-‐submits-‐abs-‐application-‐not-‐for-‐profit-‐secgears-‐legal-‐aid-‐cuts. The reference in the article to Law Centers Federation misnames the organization. The author has not been able to obtain a copy of the report or to verify its existence – it is not available on the website of the Law Centers Network, see: http://www.lawcentres.org.uk/ A side note on this issue is that the various not-‐for-‐profit providers of legal assistance in the UK are typically ‘owned’ or controlled by non-‐lawyer entities and now, absent special consideration, will need to seek licensing within the new ABS regime. At present, these ‘special bodies’ have been granted a ‘transition period’ that exempts them from transferring into the ABS regime, while the Legal Services Board examines to what extent that should be required. See: http://www.legalfutures.co.uk/latest-‐news/allow-‐not-‐for-‐profit-‐agencies-‐charge-‐says-‐lsb-‐delays-‐date-‐become-‐abss 53 For an overview of the CIC regulatory framework, see the website of the CIC regulator: https://www.gov.uk/government/organisations/office-‐of-‐the-‐regulator-‐of-‐community-‐interest-‐companies . In Canada, the only jurisdiction that presently allows the equivalent of a CIC is British Columbia, with its framework for Community Contribution Companies, see: http://www.fin.gov.bc.ca/prs/ccc/. Ontario has a social enterprise strategy (see: http://www.ontario.ca/business-‐and-‐economy/impact-‐social-‐enterprise-‐agenda-‐ontario) which includes considering implementing a legislative framework. 54 See http://www.legalfutures.co.uk/latest-‐news/exclusive-‐legal-‐advice-‐charity-‐becomes-‐first-‐not-‐for-‐profit-‐set-‐abs


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these services are devoted to funding what it calls its ‘sister firm’, Salvos Legal

Humanitarian. The latter provides in-‐person lawyer assistance and other legal

services that, in essence, are free-‐of-‐charge poverty law services, and also has

charitable legal status (as a public benevolent institution, which is a sub-‐category of

charitable organizational status under Australian law).55 This cross-‐subsidization

model appears to be working successfully and does not seem to depend upon the

availability of the CIC form of business organization. Salvos Legal won a “Law Firm

of the Year” award in 2014 and boasts a number of large corporate and public-‐

agency clients who have attested to it providing legal services that are of

comparably high quality and, apparently, somewhat lower price, than their

traditional law firm competitors.56 For its part, Salvos Legal Humanitarian has

reportedly served close to 11,000 clients in the four years it has been operating.57

The apparent success and economic sustainability of the Salvos Legal cross-‐

subsidization model indicates that it is possible that allowing ABS in Canada could

improve the availability of in-‐person lawyer assistance for people living on low

income. However, two caveats need to be lodged on the significance of this

possibility. First, while Salvos Legal Humanitarian has no doubt made a significant

contribution to access to justice for the 11,000 clients it has served over 4 years,

there remains a high level of unmet legal need in Australia. Although quantifying

unmet legal needs is notoriously challenging, the Australian Productivity

Commission, as part of a very recently concluded inquiry into access to justice in

Australia, found that “more than 15 per cent of the [adult] population [of more than

17 million] have some form of unmet legal need that related to a dispute that they

considered to have a moderate or severe impact on everyday life.”58 The second

55 For information on the status of Public Benevolent Institutions, see the website of the Australian Charities and Not-‐for-‐profits Commission (ACNC), online: http://www.acnc.gov.au/ACNC/FTS/Fact_PBI.aspx 56 The award is reported in the Australian Lawyers Weekly publication: http://www.lawyersweekly.com.au/news/leap-‐of-‐faith-‐pays-‐off. For a mention of apparently lower pricing, see: http://www.theaustralian.com.au/business/legal-‐affairs/commonwealth-‐bank-‐praises-‐salvos-‐firm-‐as-‐competitive-‐affable/story-‐e6frg97x-‐1226737074503 57 See client service numbers mentioned in the Lawyers Weekly report, ibid. 58 Australian Productivity Commission, Access to Justice Arrangements Report, Vol 1, Inquiry Report 72 (Canberra; APC, 2014) at 107, online: http://www.pc.gov.au/inquiries/completed/access-‐justice/report


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caveat is that Salvos Legal appears to be the only ABS entity in Australia that has

adopted this cross-‐subsidization model. Taken together, these caveats suggest that

while cross-‐subsidization models of ABS offer some real potential for positive

impact on access to justice in terms of in-‐person legal assistance for people living on

low income, the positive impact will be limited in scope. Moreover, whether even

this limited potential can be realized is dependant on there being Canadian lawyers

willing to voluntarily pursue a cross-‐subsidization model – which presumably

entails, among other things, some willingness to forego a portion of personal

remuneration. Having said that, the potential economic viability of the cross-‐

subsidization model used by Salvos Legal is significant in another way, that is, in

relation to the idea of ABS+. If Salvos Legal shows what is possible through allowing

‘regular’ ABS, it also invites consideration of whether there are specific regulatory

tools that might become part of an ABS+ framework in order to provide incentives

for or, perhaps, to compel, the use of cross-‐subsidization models. I will return to

this possibility later.

ii. ABS and other legal services: potential collateral benefits

As mentioned, there are a variety of types of legal services apart from in-‐person

lawyer assistance – such as improved public legal information and education,

technology-‐enhanced legal document-‐building and expanded non-‐lawyer assistance

– that could play a role in improving access to justice in poverty law areas and for

people living on low income. The techniques that could lie behind improvements in

the provision of these types of services would include development and application

of smart technology and online delivery, as well as substitution of low-‐cost niche-‐

trained (non-‐lawyer) customer service staff for high-‐cost generally-‐trained

(lawyer/paralegal) professionals. In turn, techniques such as those are of a type

that ABS entities are typically regarded as being interested in exploring. However,

and similarly to in-‐person lawyer assistance, the likelihood of ABS entities pursuing

these measures in relation to traditional poverty law areas would likely be

dampened by the ultimate lack of purchasing power of people living in poverty.


33

Nevertheless, as I explain in what follows, there is some potential for some degree of

what I will call ‘collateral benefit’ to people living on low income.

In areas where issues arise for people in both middle-‐ and low-‐income strata, there

may be a business case for pursuing these measures and providing services at no-‐

cost or low-‐cost as a gateway to selling higher-‐cost, higher-‐profit, services. This has

been referred to as the business practice of ‘winnowing’ or ‘gleaning’ and there is

some evidence of its adoption by innovative non-‐ABS legal services entities that

utilize business techniques that are likely to be exploited by ABS entities.59 In

circumstances where this occurs, people living on low-‐income could presumably

enjoy some access to and benefit from such measures, even if it is more the middle

class – paying – consumers that the ABS entities are really trying to reach. I will

refer to this as the potential for ‘collateral benefit.’ But at the point where people

living on low income have distinct issues and needs, either in relation to areas of

legal problems that are shared by the middle-‐income strata, or in relation to areas of

legal problems that disproportionately affect the low-‐income strata, the potential

for collateral benefit will run out. The prime example of an area of legal problems

where there would be little economic incentive for ABS entities to pursue any

measures is social assistance rights and entitlements. Even if an ABS entity could

devise a measure for providing legal services in relation to social assistance, and

even if the legal services measures were used successfully, and even if the success

was in the form of additional social assistance income, the low-‐income beneficiary

would still have little or no capacity to pay for those services.60

The potential for collateral benefit will also be limited by any aspects of difference

or disadvantage that present challenges to accessing legal services for people living

59 See roadtrafficrepresentation.com and discussion of it in Digital Delivery, supra note 42 at 7. It does not seem that roadtrafficrepresentation.com is an ABS, but the lawyer behind it (Martin Langan) has noted that the technology tools it uses will likely be exploited by and taken to new scales of service by ABS entities, see GCRC Interview: Martin Langan, online: http://gcresearchclub.com/2013/09/gcrc-‐interview-‐martin-‐langan-‐road-‐traffic-‐representation-‐whole-‐interview/ 60 It must be acknowledged that the experience with social security disability representation in the US is distinct because the awards obtained are sufficient to warrant contingency fee arrangements.


34

on low income, regardless of the affordability of those services. For instance, to the

extent that ABS entities may innovate in online delivery of services, the accessibility

of those services to people living on low income will be impacted by a variety of

factors other than any cost associated with the services themselves, such as the

extent of access to the internet, the extent of ‘digital literacy’, the extent of

traditional literacy, and the language in which the services are provided.61

Another factor that will affect the potential for ABS entities to offer even collateral

benefits relates to a regulatory limit on the potential to expand the scope for non-‐

lawyer assistance, including substituting trained staff for licensed professionals.

Specifically, in all Canadian jurisdictions, the provision of legal services, at least in

expectation of a fee or other reward, is prohibited to non-‐licensees of the provincial

legal profession and legal services regulators.62 The only form of legal assistance

that can be offered by non-‐licensees is legal information.63 Unless loosened, these

restrictions would prevent Canadian ABS entities from internally substituting non-‐

licensee staff for licensed professionals in relation to the provision of legal services

other than the provision of legal information. It is worth noting that the UK, which

allows ABS, only ‘reserves’ a narrower core of legal services for lawyer delivery,

which means that any evidence of effective exploitation of this measure for the

benefit of people living on low income in the UK may not readily translate to

Canada.64

61 Some of the challenges that exist for universal access to digital services are identified in Digital Delivery, supra note 43, where it is stated that the groups of people experiencing ‘digital exclusion’ will be disproportionately found amongst those on low incomes”, at 3, and see at 20. 62 For a brief overview of this regulatory framework, see E. Bates, J. Bond and D. Wiseman, “The Cost of Uncertainty: Navigating the Boundary between Legal Information and Legal Services in the Access to Justice Sector” (2015) Journal of Law and Social Policy (forthcoming) 63 For a discussion of the (unclear) regulatory dichotomy between legal services and legal information, see E. Bates, J. Bond and D. Wiseman, ibid. 64 In general terms, the narrower scope of restricted practise in the UK has meant that community and not-‐for-‐profit organizations there that offer free legal assistance to people living on low income have been able to offer a greater level of legal assistance, including legal services provided by non-‐lawyers, than their Canadian counterparts.


35

iii. ABS risks: potential collateral damage and predatory practices

Not only is the potential for collateral benefit to people living on low income from

ABS activities limited, there is also the potential problem of ‘collateral damage.’ This

could occur in areas of private or civil legal problems where middle-‐income and

low-‐income strata have shared issues, but on opposite sides. ABS entities may have

sufficient economic incentives to develop legal services for would-‐be consumers on

the middle-‐income side of the problem, but if equivalent services are not available

for people on the low-‐income side, then disparities in power and vulnerability may

end up being exacerbated to the detriment of people living on low income. A prime

example of this potential for collateral damage to the relative access to justice of

people living on low-‐income is landlord/tenant disputes, but the risk of collateral

damage could arise in any private law area where the parties tend to be

differentiated by socio-‐economic status, including consumer (corporate

manufacturers and retailers v low-‐income consumers), debtor/creditor (corporate

banks and other money lenders v low-‐income consumers) and even family law

(middle-‐income-‐earning spouse v low-‐ or no-‐income stay-‐at-‐home spouse).

A final point that needs to be made about the issue of the potential impact that

allowing ABS may have on the justice needs of people living on low income is that,

since allowing ABS involves the intentional facilitation of corporatization in the legal

services sector, it will be necessary to remain attentive to the risk of what I will call

‘predatory’ corporate practices that can have a particularly detrimental impact on

already socio-‐economically disadvantaged groups. Predatory corporate practices

are characterized by a deliberate effort to exploit vulnerable consumers, often low-‐

income, by taking advantage of and, indeed, creating, misunderstandings about the

real cost of, and the real need for, particular goods or services. Predatory corporate

practices have been identified as playing a significant role in the US sub-‐prime

mortgage collapse, and ensuing global financial crisis, as well as in other

economically exploitative business sectors found in the US and Canada, often


36

involving financial services (such as payday lenders). 65 Since information

asymmetry and other significant market imperfections, which are exploited by

predatory actors, are already recognized as characterizing the legal services

sector,66 there would seem to be a need to remain attentive to the risk that allowing

ABS will open the door to predatory practices in relation to legal services. It might

be argued, for instance, that there are some signs of such practices in the US social

security disability representation sector, as discussed by Robinson. Closer to home,

Canadian legal scholars have drawn attention to questionable practices, that could

be described as predatory, in the form of unjustifiable civil legal demand letters sent

by lawyers on behalf of corporate retailers in relation to shoplifting.67 These

demand letters deliberately seek to exploit the lack of knowledge and fear of

economic penalty of the parents of youth caught shoplifting. While these letters are

being sent in a non-‐ABS context, they are being sent at the behest of corporate

clients and, as with the US experience with social security disability representation,

may illustrate a propensity for unethical conduct that could be exacerbated by the

arrival of ABS. Of course, as I have already mentioned, the Canadian debate on

allowing ABS recognizes the need to assess regulatory risk and predatory corporate

practices could be considered as part of that. But there is a danger that mainstream

legal regulators, like mainstream regulators in other sectors, may overlook risks

that are disproportionately borne by people living on low income.

In sum then, considering poverty law needs in general, allowing ABS is unlikely to

yield direct access to justice improvements for people living on low income because

they do not have sufficient purchasing power to participate in the private market for

legal services. Even if ABS entities can reduce prices or otherwise make legal

services more accessible, their services – and especially in-‐person lawyer assistance

65 Predatory corporate practices have been accessibly, and scathingly, documented in G. Rivlin, Broke, USA: From Pawshops to Poverty Inc; How the Working Poor Became Big Business (HarperCollins Publishers; New York, 2010). 66 For an overview and analysis of imperfections in the legal services market, see A. Woolley, “Imperfect Duty: Lawyers’ Obligations to Foster Access to Justice” (2007-‐2008) 45 Alberta Law Review 107, in particular part III. 67 See: A. Salyzyn, ‘Of labels and letterheads’ online: SLAW http://www.slaw.ca/2014/08/05/of-‐labels-‐and-‐letterhead/ and links therein; and, A. Salyzyn, “Zealous Advocacy or Exploitative Shakedown?: The Ethics of Shoplifting Civil Recovery Letters” (2015). Windsor Review of Legal and Social Issues (forthcoming), available at SSRN: http://ssrn.com/abstract=2567909


37

– will likely remain unaffordable to people living on low income. An exception to

this is the free poverty law services that might be made available through a cross-‐

subsidization model, which has some real, although limited, positive potential. To

the extent that areas of legal need of people living on low income overlap with areas

of legal need for higher income groups, people living on low income may be able to

enjoy collateral benefits from any legal services (such as legal information) that are

made available by ABS entities free of charge. But even then the extent of collateral

benefit will likely be limited by the potential for divergence in the needs of low

income and higher income strata in areas of legal problems that they share.

Moreover, there is the potential for collateral damage to the access to justice

situation of people living on low income in private law where higher and lower

income people are typically on the opposite side of disputes. Indeed, there is

potential for direct damage, in the form of the risk of predatory corporate practices.

The impression that access to justice gains in relation to poverty law legal needs

from allowing ABS will be very limited raises the issue of whether there are means

to modify the regulatory framework that would apply to ABS to require or, at least,

encourage, better outcomes for people living on low income. I am referring to this

as the possibility of developing a model for allowing ABS+. In the following sections

I consider why this should be considered and how it might be done. I also identify,

and take issue with, some reasons for why not to do so.

B. ABS+: Why?

First, as a matter of normative priority, where regulatory change is sought to be

justified by potential for improvements in access to justice, it is arguable that it is

the needs of the more disadvantaged and impoverished (people living on low

income) that ought to be given priority consideration. More moderately, it might at

least be argued that their needs ought to be given no less consideration. This, I

would argue, is all the more imperative when there is the potential for access to

justice improvements for higher income groups to produce collateral damage to the

access to justice interests of lower income groups.


38

Second, and now as a matter of practical policy-‐making reality, at a time when

governments seem unwilling to devote more attention or expenditure to public

provision of legal services for people living on low income, exploring ways to

harness private sector innovations may be the most realistic avenue for improving

access to justice for that segment of the population. Relatedly, the reality may also

be that it will be too late to try to harness private sector innovations after the ABS

horse has been allowed to leave the regulatory barn.

Third, and bringing together normative and pragmatic angles, not only has the

Canadian legal profession in general, and many of the provincial self-‐regulatory

organizations more particularly, opened up a policy-‐making space for considering

how to reformulate the future of legal services to improve access to justice, but also,

the provincial self-‐regulators all have an implicit or explicit duty to facilitate access

to justice in their regulatory activities.68 In my view, that duty ought to be

understood to at least require that the debate on allowing ABS and access to justice

include consideration of possible means for ensuring that the new and improved

services ABS are expected to develop will benefit not just the middle class, but

people living on low income as well. Again, this would seem to be especially so

where there is the potential for collateral damage. For legal services regulators

obliged to facilitate access to justice, it would seem particularly problematic to

engage in regulatory reform that might improve one social group’s access to justice

at the expense of others who are more disadvantaged.

C. ABS+: How?

Beyond the issue of why to explore ABS+ is the issue of how it might be formulated.

In this section I briefly identify some regulatory rules or tools that might be

integrated into any reforms allowing ABS so as to either harness any accessibility-‐

improving changes they produce in the user-‐pays private market for the benefit of

68 In Ontario, the Law Society is under an explicit statutory duty to ‘facilitate access to justice’: see Law Society Act, RSO 1990, c L8, s. 4.


39

those who would still lack the means to pay and/or to support (or compel) cross-‐

subsidization. The range of possible means could involve ABS entities directly

serving people living on low income but could also involve ABS entities more

indirectly, by enabling other entities to undertake the direct service on the basis of

innovations developed by and adopted from ABS entities.

A key stepping stone to implementing any ABS+ measures would be a move on the

part of legal regulators beyond the regulation of individual licensees and legal

services to regulation of firms and other corporate structures, such as ABS entities,

providing legal services. Current proposals in relation to general regulatory reform

and more specifically on allowing ABS in Canada include this expansion to entity

regulation.69 Once entity regulation is established, the funding of the development

and maintenance of the regulatory apparatus will presumably follow the user-‐pays

model that legal regulators in Canada currently use. In other words, ABS entities

will presumably be charged application fees, license fees and license-‐renewal fees to

cover the cost of developing and maintaining the regulatory framework in which

they will operate. At the same time, non-‐ABS legal services entities will also

presumably be charged fees for regulatory oversight. Obviously, once it becomes

possible to levy new fees on the legal services sector, it also becomes possible to

explore means for providing economic incentives for ABS entities, indeed, any legal

services entity, to provide legal services to people living on low income.

The bluntest way to do so would be with differential fee levels that vary in

accordance with the level of service provided in poverty law areas. Of course, any

fee becomes an additional cost to establishing and operating a legal services entity

and may represent a disincentive to market entry. Given that a primary purpose of

allowing ABS is to provide a vehicle for the development and delivery of legal

services to the so-‐called ‘latent market’ for legal services, it would be counter-‐

productive to impose a fee regime that creates disincentives to ABS take-‐up. For

69 See, for instance, the Nova Scotia Barristers’ Society reports on regulatory transformation, supra note 28, and the LSUC ABS-‐WG Discussion Paper, supra note 30, at 19.


40

this reason, it would make little sense to impose fees only on ABS entities. But if

entity fees are universally imposed on all legal services entities (i.e. ABS and non-‐

ABS), then they can also be levied differentially to provide incentives for ABS (and

other) entities to direct some of their services to the access to justice needs of

people living on low income. Going a step further, it would also be possible to

differentially levy fees in order to provide an incentive (or reward) for adopting a

cross-‐subsidization model – or to penalize an unwillingness to do so.

Alternatively, if a uniform entity fee was preferred, then it might be set at a level

that would enable a certain portion to be set aside by the regulator to fund poverty

law services, whether provided by ABS entities or others. In other words, rather

than using a differentiated fee to provide an incentive for intra-‐ABS cross-‐

subsidization, legal regulators could levy a uniform fee at a level that allows for

inter-‐entity (for-‐profit to non-‐profit) cross-‐subsidization. This funding could take a

range of forms, such as: providing operating grants to existing poverty law clinics;

establishing a poverty law innovation fund; or, offering consumer vouchers for

‘purchasing’ legal services in the reformed private market. Other options could

include using the fund to license ABS-‐developed legal services innovations for

delivery to people living on low income by legal aid or community agencies or using

it to bulk-‐buy, at volume-‐discount prices, ABS-‐developed legal services.

There may also be other ways for legal regulators to provide incentives for ABS

entities to develop services for the legal needs of people living in poverty through

targeted variation in aspects of legal services regulation. For instance, if the current

prohibitions on the unauthorized practice of law present a barrier to developing (or

cross-‐subsidizing) poverty law services, by preventing integration of non-‐licensee

staff in service delivery, then legal regulators might consider loosening the

restrictions on non-‐licensee provision of legal services at least when the non-‐

licensees are operating in an ABS-‐entity that has established appropriate quality

control mechanisms.


41

An additional option that regulators might consider, which follows a different path

to the same overall objective, would be to restrict ABS entities to a modified

corporate business model, along the lines of the Community Interest Company (UK)

or Community Contribution Companies (BC).70 Doing so would mean that ABS

entities would have to be more consciously motivated by the objective of

community benefit and would be relieved of demands for ever-‐increasing

shareholder/owner returns. 71 This may, in turn, open up possibilities for

developing low-‐profit or not-‐for-‐profit services for people living on low income. As

part of this, or alternatively, legal regulators could consider restricting ABS to a

cross-‐subsidization model. Of course, such restrictions might create a disincentive

to ABS take-‐up, as compared to a regime allowing adoption of the traditional profit-‐

fixated, owner-‐priority corporate template, but there would still be an incentive for

ABS take-‐up as compared to the present prohibition on ABS.

Further options of more modest scale could be harvested from the ongoing

monitoring and reporting on digital delivery of legal services for people living on

low income which has recently given rise to a recommended priority list for the UK

government. Top of the list is the creation of a dedicated fund for fostering

innovation in digital services delivery.72 Another priority is that consideration be

given to establishing a voluntary quality assurance mark for websites delivering

legal information. Yet another resonates very closely with the idea of ABS+: “The

[UK] Law Society and Legal Services Board should encourage private providers to

develop services for those on low incomes; monitor developments, and seek

maximum publicity for them amongst legal providers and the public.”73

70 Whether this could be achieved in Ontario, without a legal framework for social benefit enterprises organizations in place, would be an open question. Perhaps, even without such a framework, a legal regulator could mimic the key components in its own regulatory framework for allowing ABS. 71 It should be noted that there is an ongoing debate in Canada about the desirability of establishing a distinct legal framework for social benefit enterprises. See, for instance, C. Liao and R. Johnson, “Comment Letter to Industry Canada on Revisions to the Canadian Business Corporations Act (May 2014)” online at: https://www.ic.gc.ca/eic/site/cilp-‐pdci.nsf/vwapj/Carol_Liao_Asst._Professor_University_of_Victoria.pdf/$FILE/Carol_Liao_Asst._Professor_University_of_Victoria.pdf. 72 Digital Delivery, supra note 43 at 28 73 Digital Delivery, supra note 43 at 28.


42

This is by no means a comprehensive analysis of the range of measures that legal

regulators might pursue in furtherance of ABS+. Rather, the more modest objective

of this collection of suggestions is to indicate that there exits a territory to explore.

I now turn to a brief consideration of potential reasons why not to explore this

territory.

D. ABS+: Why not?

As was mentioned in the previous section, it would be counter-‐productive to

attempt to pursue ABS+ via measures that would create undue disincentives for ABS

take-‐up. This is an important consideration to take into account in exploring means

to establish ABS+ and may provide a reason for not implementing any measures at

all. However, this provides no reason to pre-‐emptively refuse to explore whether

ABS+ measures are possible. In order to meaningfully assess whether ABS+

measures should be implemented, it is first necessary to identify what those

measures might be.

A different reason that might be relied upon for not exploring ABS+ measures is the

idea that the perfect should not be the enemy of the good. In other words, it might

be agued that allowing ABS can be expected to yield some gain in overall access to

justice, even if mainly for people living on middle income – and that would be a good

result. A more perfect result would be achieved if allowing ABS also yielded gains in

access to justice for people living on low income as well – i.e. ABS+. But in trying to

achieve the more perfect result, there is a risk that the entire reform enterprise

might collapse or, at least, that any additional gains to people living on low income

will be offset by gains foregone by people living on middle income. In this way,

aiming for a more perfect result becomes the enemy of achieving a good result.

Another way to put the same basic argument would be that allowing ABS represents

the use of a particular type of policy tool and incentive – private market forces –

with its own strengths and weaknesses. While a particular weakness of this tool

might be the limit of a paying market, rather than bending or perverting this tool to


43

try to make it reach beyond its natural limits, it is better to try to provide legal

services outside the paying market by means of different policy tools, such as

expanded public legal aid programs.74

One way to respond to the ‘perfect v. good’ argument is to turn it on its head

through the observation that it is the insistence on leaving policy tools in their pure

forms that is the counsel of perfection. Perhaps it is true that the perfect solution to

the need to improve access to justice is to use a combination of policy tools that are

individually limited but, in aggregate, can cover the field. It would be perfect if

expanded public legal aid programs and other forms of public provision of legal

services accompanied the introduction of ABS. But such enhanced public action is

highly unlikely.75 Given the unlikelihood of the perfect (multi-‐tool) solution, it can

be argued that it would be better to pursue ABS+, which has the potential to at least

do some good for both people living on middle income and people living on low

income.

At this point though, with the recognition that ABS is but one of a number of

possible options that might be pursued in order to improve access to justice, a

further reason emerges for considering ABS+. At present, the regulatory reform

debate about ABS appears to be framed as a question of whether only one particular

model of ABS (i.e. only what might be called the ‘regular’ model of ABS, as adopted

in Australia and the UK) compares favourably to only a static conception of the

status quo of access to justice. This framing involves two constraints that are

difficult to justify. On the one hand, this framing prevents a comparison of ‘regular’

ABS to other options for regulatory reform that may also have the potential to

improve access to justice and, in particular, those that might do more for people

living on low income. Those other options could include not only non-‐regular

74 This type of argument is suggested in a recent online article and blogpost of Malcolm Mercer, a co-‐chair of the ABS-‐WG, see online: http://www.nationalmagazine.ca/Articles/November-‐2014-‐Web/ABS-‐and-‐access-‐to-‐justice.aspx ; and also at: http://malcolmmercer.ca/2014/11/05/access-‐to-‐justice/ 75 This unlikelihood has also been recognized by Malcom Mercer, a co-‐chair of the ABS-‐WG, in the following blogpost, see online: http://www.slaw.ca/2014/02/26/being-‐in-‐favour-‐of-‐reform-‐just-‐not-‐change/


44

models of ABS (i.e. ABS+), but could also extend beyond that to, for instance, a

loosening on restrictions on the unauthorized practice of law.76 On the other hand,

the present framing prevents a comparison of the potential gains from ABS (and any

other options for regulatory reform) to a more dynamic conception of the status quo

that takes account of the potential for ‘natural’ evolution in the legal services sector.

That is, a conception of the status quo that takes into account the potential for

evolution and change in the design and delivery of legal services that may be

expected to occur due to a variety of societal forces (such as technological

developments), even in the absence of regulatory reform. Changes wrought by

regulatory reform are not the only changes that may occur in the legal services

sector and it is possible that some of those ‘natural’ changes could impact the

calculation of the comparative costs and benefits of particular regulatory reform

options – including ABS, ABS+ and others – as well as the priorities among them.77

There are two problems with maintaining these constraints on the scope of the

regulatory reform debate about ABS. The first problem arises from the likelihood

that there is some scarcity to the resources available to legal regulators, such as the

Law Society, for exploring and implementing regulatory reform in the legal services

sector. With scarce reform resources, legal regulators need to compare a full range

of options, and to take into account the impact of ‘natural’ evolution, in order to

maximize the efficiency, effectiveness and fairness of their reform endeavours. The

second problem arises from the potential for ABS to cause collateral damage to the

interests of people living on low income. Given this potential, it would seem

important to investigate whether there are any options for regulatory reform, other

than regular ABS, that can assist people living on middle income, even if to a lesser

76 For a discussion of a variety of options for regulatory reform in relation to improving access to justice, see also N. Semple, “Access to Justice: Is Legal Services Regulation Blocking the Path?” (2013) 20:3 International Journal of the Legal Profession 267. 77 This is not to say that the ABS-‐WG, for instance, has not acknowledged that technological developments are already having an impact on the practise of law and that those impacts will continue into the future (see its Discussion Paper, above n 34 at 12-‐3). The point is that there seems to remain an assumption that adoption of technological developments and innovations now associated with ABS entities in other jurisdictions requires allowing ABS in Canada. This assumption may be overlooking the possibility that what was necessary for creation or introduction of the innovations may not be necessary for adoption of them (especially as law firms continue to globalize).


45

extent than via allowing ABS, without the same potential to hurt people living on

low income. Admittedly, it may be too ambitious or counter-‐productive to attempt

to expand the parameters of the regulatory reform debate on ABS to include a

comparison with a variety of other reform options, as well as with expected ‘natural’

evolution. At a minimum though, I would argue, it is at least necessary to broaden

the debate enough to consider and compare ABS+.

Conclusion

The purpose of the analysis presented in this paper is not to argue that allowing ABS

in Canada cannot be justified. Rather, the purpose is to argue that Canadian legal

regulators ought to pay particular attention to how allowing ABS might impact on

the justice needs of people living on low income and, in doing so, ought to consider

the potential of ABS+.

ABS+ ought to be explored because ABS is unlikely to offer much in the way of direct

access to justice gains for people living on low income. When thinking about

poverty law needs in particular, ABS-‐entities, in seeking profit-‐making

opportunities, will generally lack an economic incentive to aim innovations in

existing legal services, or developments of new legal services, at people living on low

income. To the extent that they do, there is even a risk that the innovations and

developments will be predatory, rather than empowering. At the same time, it must

be acknowledged that the apparent empowerment and economic feasibility of the

cross-‐subsidization model used by Salvos Legal does appear to provide an exception

to the expected limits of ABS, but even then the gains would appear to be relatively

modest. Of course, more significant gains through cross-‐subsidization might be

possible if that model is significantly incentivized or, even, compelled, as part of ABS

regulatory reform, but at that point the reform effort would seem to be as much in

the territory of ABS+ as ABS.

There is a greater likelihood of indirect access to justice gains for people living on

low income from ABS-‐entities. These ‘collateral benefits’ may appear where a


46

business case can be made for providing some legal services for free in order to

winnow or glean clients who have the capacity to pay for other legal services. But it

is likely that any free legal services would be limited to legal information and also

likely that it would be more oriented to the legal needs that people living on low

income might share with people living on higher income, rather than to any distinct

poverty law needs. However, even so, the potential for collateral benefits needs to

be balanced against the prospect of collateral damage. To the extent that ABS-‐

entities are likely to make legal services, including legal representation, more

affordable and otherwise accessible for people living on middle and higher income,

but not for people living on lower income, their services may exacerbate already

existing inequalities in private law matters involving people of differing income

levels on different sides of a dispute. Improving access to justice for people living on

middle and higher income may come at the expense of people living on lower

income.

The potential for, at best, weak gains in access to justice for people living on low

income from allowing ABS and, at worst, for actual damage to their interests, should

be of concern to Canadian legal regulators considering ABS. Combined with what is

arguably a normative priority of the interests of people living on low income, this

concern should prompt a more careful examination. That examination should

involve analysis of regulatory risks from the particular positioning of people living

on low income. Ideally, it would also involve a consideration of how legal services

might ‘naturally’ evolve, absent ABS, and of other regulatory reform options. But, at

a minimum, a more careful examination of whether to allow ABS in Canada should

include an exploration of the potential of ABS+.


47


48

Looking Out/Looking In – Part II

“Feeling good about yourself is essential to feeling good about life, but sometimes people are forced to do things that take away from

their self-‐respect” Nadia

One day I saw someone approach this garbage can,

take out a discarded bag and eat the

garbage inside. I was shocked, and

embarrassed for the person. I had never seen anyone eat from a garbage can before. I live in

poverty but I have not yet been hungry enough or desperate enough to eat from a

garbage can. I thought about how

quickly and easily a person’s life circumstances can change to where any one of us could be forced to find our lunch in this way. There are people in the world who, every day, are forced to do such

a thing. How good is that for one’s self-‐respect?


49

Inside Out/Walking Around Naked

Lynn

As a person who has had to rely on social programs all my life, I feel like public property with no privacy and the freedom -‐ to create my own identity and participate equally in society -‐ taken away.


50

All I Want for Christmas is to Participate

Lynn

I’m not able to buy a present for a niece or nephew and I also don’t get any presents because people don’t want to make me feel bad or obligated to buy something for

them.


51

It’s a Beautiful Day in the Neighborhood

Lynn

Why Are We Not Allowed to Know Our Rights

Dawn McGraw


52


53

Re-‐defining access to justice: concerning trends for low

income people*

By Kaity Cooper and Kendra Milne

Introduction

In discussions about access to justice, the focus is often on access to courts or access

to legal advice and representation. Discussions about the functioning and efficacy of

the justice system tend to focus on the accessibility of procedure, the time and cost

associated with using the system and, in the case of the administrative justice

system, on the analytical framework used by courts reviewing decisions on judicial

review. However, limiting our consideration to these points misses an important

and possibly more relevant aspect of access to justice for private individuals, and

particularly for low income individuals. Access to justice has a broader meaning that

includes access to an effective and competent decision-‐maker that adjudicates legal

issues in a manner that satisfies those involved that their legal matter has been

taken seriously and fairly determined.

This aspect of access to justice is just as important in the administrative justice

system as it is in the court system, if not more so. As Chief Justice McLachlin of the

Supreme Court of Canada has observed about administrative justice in Canada,

many more citizens have their rights determined by tribunals than by the courts.1

Our administrative tribunals handle a large volume of disputes. It is likely that an

individual will interact with and experience the justice system through the lens of an

administrative decision-‐maker, and that lens can colour their experience of the

justice system as a whole. To maintain public confidence in the justice system, there

must be confidence in its administrative components and adjudicative tribunals in

particular.

1 Cooper v. Canada (Human Rights Commission), [1996] 3 S.C.R. 854 at para. 70.


54

The need for effective and respectful administrative tribunals is further highlighted

by the kinds of rights at stake. In addition to sheer volume of interactions, many

legal issues that are determined by tribunals involve fundamental rights that impact

the overall health and wellbeing of those involved in the matter.

For example, if a worker in BC is not paid minimum wage or overtime, they may find

recourse at the Employment Standards Appeal Tribunal. If someone experiences a

severe disability, they may have their claim for disability benefits assessed by BC’s

Employment Assistance Appeal Tribunal or the federal Social Security Tribunal. A

worker who is unable to work because of an injury at an unsafe workplace may have

a claim for compensatory benefits and an assessment of any safety violations

determined by the Workers’ Compensation Appeal Tribunal. A worker who is fired

because she is pregnant, or a tenant who is refused a rental unit because they are

transgender can enforce their rights at BC’s Human Rights Tribunal.

The security of an individual’s home provides another illustrative example of the

types and volume of issues determined by administrative decision-‐makers. In BC, a

tenant who is living in unsafe housing, or who needs to recover their security

deposit from a landlord, must bring their claim before the Residential Tenancy

Branch (the “Branch”) in most situations. The Branch has exclusive jurisdiction over

almost all residential tenancy disputes in the province up to a monetary limit of

$25,000, and opens over 18,000 new files per year.2 That number can be compared

to BC’s Small Claims Court, which has the same monetary limit and can determine a

wide variety of civil disputes, and sees just over 15,000 new cases per year.3 Given

that approximately one third of BC’s population resides in rental housing and almost

all legal issues that arise in a rental relationship must go before the Branch, it is

unsurprising that people are more likely to find themselves in a tenancy dispute 2 Laura Monner, Residential Tenancy: Dispute Resolution Report 2008/09-‐2012/13 (23 July 2014) at 9 [Monner, RTB 2008/09-‐2012/13]. 3 Provincial Court of BC, Annual Report 2013-‐14, (31 March 2014) online: Provincial Court of BC <www.provincialcourt.bc.ca> at 44.


55

than a small claims civil dispute and, by extension, find themselves seeking to

enforce or defend their housing rights before an administrative decision-‐maker

instead of a judge.

In addition to being common legal issues that everyone may experience, the types of

legal issues set out above reflect incredibly important interests for the individual

involved, often touching on basic economic and social inclusion that can impact

security of the person or fundamental equality rights. Adjudication of these kinds of

issues may very well impact or determine a person’s long-‐term health and

wellbeing.

Because of their connection to fundamental rights, these kinds of legal issues are

more likely to be experienced by people living in poverty. Legal issues relating to

precarious employment, unsecure housing, or public benefits are often inextricably

connected with a person’s socioeconomic status. In other words, not only are people

living in poverty more likely to experience the justice system through an

administrative decision-‐maker instead of a court, but when they do it may very well

be a situation where their most fundamental rights are at stake.4 With such

important rights at stake, and with so much on the line for an individual, basic

accountability mechanisms become essential to make sure parties leave their

experience with an administrative decision-‐maker feeling like their case has been

taken seriously.

The usual accountability measures for administrative decision-‐makers typically

include statistics on budget, annual caseload, outcomes, and timelines for a case

from start to completion. While these statistics are important, they fail to tell us

much about how well the tribunal is actually preforming its duties. More meaningful

accountability mechanisms might include reviewing whether a tribunal is meeting

4 Lorne Sossin, "Access to Administrative Justice and Other Worries" in Colleen M. Flood & Lorne Sossin, eds., Administrative Law in Context (Toronto: Emond Montgomery Publications, 2013) 211 at 212 [Sossin, “Access to Administrative Justice”] [Sossin].


56

its statutory mandate, accurately applying its legislation, meeting basic procedural

fairness standards, or issuing decisions that allow the individuals involved to feel

that their issue has been determined fairly and professionally. However, the kinds of

comprehensive audits that would be required to assess a decision-‐maker’s

functioning in a more meaningful way are complex and costly. Perhaps for this

reason, more meaningful accountability mechanisms for administrative decision-‐

makers are elusive and rarely used.5

It is in this context that this article will explore a number of current trends in

administrative justice in BC, with a focus on those that are most likely to impact low

income people: (1) an increase in the reliance on technology to replace face-‐to-‐face

hearings; (2) an increase in the deference awarded to tribunals by reviewing courts;

and (3) a narrowing of the court’s jurisdiction to review the decisions of specific

tribunals.6

These trends have been qualitatively identified through the authors’ experiences in

a high volume community law clinic working on legal issues that impact the

wellbeing of low income people. Taken on their own, the trends are simply note-‐

worthy, but this article explores how these trends may have a negative impact on

the experiences of low income people as they interact with the justice system and

have their fundamental rights determined. It is difficult to tell whether these

consequences are unfolding without more meaningful accountability mechanisms

for the administrative tribunals involved. In our view, the trends and potential

consequences further underline the need for such mechanisms to ensure

meaningful access to justice for low income people.

5 For more on this topic, see Lorne Sossin, “The Elusive Search for Accountability: Evaluating Adjudicative Tribunals” (2010) 28 Windsor Y.B. Access Just. 343. 6 For simplicity, we will use the term “tribunal” in this article to refer to adjudicative administrative decision-‐makers.


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Trend #1: Reduction in face-‐to-‐face hearings

One key goal of governments when they create most administrative tribunals is to

provide efficient, accessible and specialized access to justice while maintaining basic

fairness and the rule of law. Efficiency and accessibility can often mean the

streamlining of procedural protections in order to simplify the tribunal process.

While efficiency and simplification are valid and important considerations when

determining important rights and benefits, the need to balance those considerations

with basic procedural protections becomes paramount to maintain confidence in the

system.7 Increasing efficiency with the aim of cost savings has the potential to

seriously threaten basic procedural fairness before tribunals.8

We have identified a trend towards an increased focus on efficiency, and

particularly an increased reliance on communications technology, in adjudicative

hearings at many administrative tribunals that determine important rights.

Examples of that trend are set out below. While teleconference or video conference

hearings can be more accessible for some participants, particularly those with

physical limitations or those who reside in rural areas, they can also create

accessibility difficulties for participants with different kinds of barriers related to

language, hearing or cognition, and can threaten both the actual fairness and the

appearance of fairness of a hearing. Technological problems may arise, hearings

may be more difficult to control, credibility may be harder to asses, and it may be

more challenging to deal with documentary or physical evidence.

7 For a discussion of the importance of ensuring basic fairness and the appearance of fairness at an administrative decision-‐maker with relaxed procedures, see Kikals v. British Columbia (Residential

Tenancy Branch), 2009 BCSC 1642 at paras. 27 and 37. 8 Sossin, “Access to Administrative Justice”, supra note 4 at 218-‐219.


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BC’s Residential Tenancy Branch

As set out in the introduction, BC’s Residential Tenancy Branch determines over

18,000 applications per year, with exclusive jurisdiction over almost all residential

tenancy matters under the monetary limit of $25,000. In recent years, that has been

a clear trend in Branch operations to focus on high volume, informal decision-‐

making.

The Residential Tenancy Act9 provides that disputes before the Branch may be

adjudicated by oral hearing or in writing. There is no requirement for consent from

the parties when the form of hearing is determined. The vast majority of originating

disputes are still determined via an oral hearing. However, in recent years the

Branch has become heavily reliant on conference call technology for oral

adjudication. In 2006 the Branch held 44% of its hearings via face-‐to-‐face oral

hearings.10 In 2013, the Branch determined 1% of its files via a face-‐to-‐face hearing,

94% via teleconference, and the remainder in writing.11 Currently, oral hearings

occur by teleconference by default and the option to request a face-‐to-‐face hearing is

not transparent in most of the Branch’s information materials.

Since the increase in reliance on teleconference technology, there have been a

number of judicial reviews in BC that have identified the unfairness than can arise in

a teleconference hearing that would not occur with face-‐to-‐face hearings.12 These

include cases where the court has set aside a Branch arbitrator’s decision because:

• One party was unable to connect to the teleconference, and all or part of the

hearing went ahead in their absence;13

9 S.B.C. 2002, c. 78. 10 Mohammad Shojaei & Laura Monner, Residential Tenancy: Dispute Resolution Report 2006 -‐ 2010 (17 March 2011) at 20. 11 Monner, RTB 2008/09-‐2012/13¸supra note 2 at 20. 12 For a greater discussion in this issue, see: Jessie Hadley and Kendra Milne, On Shaky Ground: Fairness at the Residential Tenancy Branch (Community Legal Assistance Society, October 2013) at 33-‐37. 13 Ross v. British Columbia, 2008 BCSC 1862; Ganitano v. Metro Vancouver Housing Corp., 2009 BCSC 787.


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• An arbitrator conducted a hearing without ensuring both parties had

received the same set of documentary evidence that was being considered

to adjudicate the dispute;14 and

• An arbitrator abruptly terminated the teleconference call, seemingly in an

effort to gain control of the hearing, and did not allow the parties to finish

presenting their evidence and submissions.15

Social Security Tribunal

In April 2013, the federal government dissolved four federal tribunals and replaced

them with a single tribunal called the Social Security Tribunal (the “SST”). The SST

is tasked with adjudicating appeals brought under the Employment Insurance Act16,

the Canada Pension Plan17, and the Old Age Security Act.18 In other words, the SST

has jurisdiction to determine appeals in claims related to regular employment

insurance benefits, maternity benefits, sickness benefits, federal disability benefits,

and federal retirement benefits, all of which are fundamental to the basic income

security of many people.

A stated goal of the SST is to provide a “simplified, effective and efficient appeal

process that will improve the administration of justice.”19 Under the former system,

first level appeals went before a decision-‐making panel of three people, generally by

face-‐to-‐face hearing. Second level appeals went before at least one decision-‐maker

who was often a retired federal judge, again often by face-‐to-‐face hearing. Parties at

the SST are no longer guaranteed the option of an oral hearing. In fact, parties are

no longer guaranteed a hearing at all. Tribunal members have the authority to

determine an appeal based on the documents and submissions filed. Even if a

14 Fernandez v. Sakr, 2012 BCSC 1024. 15 Johnson v. Patry, 2014 BCSC 540. 16 S.C. 1996, c. 23. 17 R.S.C. 1985, c. C-‐8. 18 R.S.C. 1985, c. O-‐9. 19 Employment and Social Development, News Release, “Government of Canada announces appointment of additional Social Security Tribunal members” (27 November 2014) online: Government of Canada News Releases <http://news.gc.ca>.


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hearing does take place, it may now be conducted by written questions from the

tribunal member, telephone or videoconference. While information about the

operations of the SST is difficult to find, media reports based on freedom of

information requests have noted:

• The SST has been working to reduce the number of face-‐to-‐face hearings,

instead relying on teleconference and video conference technologies;20

• Appellants before the SST are less likely to succeed if their case is heard via

teleconference instead of a face-‐to-‐face hearing;21 and

• The SST’s 2013/14 annual budget was $13.6 million, a significant reduction

from the total budgets of the four tribunals it replaced, which was $42.4

million as recently as 2010/11.22

While the SST is new and additional measures are being taken to reduce a large

backlog of appeals, so far the new tribunal has not been more efficient. In late 2014,

media reports noted a backlog of over 11,000 appeals and increasing delays for

many trying to access benefits.23

BC’s Civil Resolution Tribunal

British Columbia’s new Civil Resolution Tribunal (the “CRT”) will be Canada’s first

online administrative tribunal. Created by legislation passed in 2012 and expected

to be up and running in 2015, the CRT will have the following jurisdiction:

• To start, the CRT will focus on small claims disputes, and disputes between

strata corporations and strata property owners up to the BC small claims

20 Leanne Goodman, “Fewer in-‐person hearings being heard by social security tribunal”, Winnipeg Free Press (18 December 2014) online: Winnipeg Free Press <http://www.winnipegfreepress.com>. 21 Ibid. 22Leanne Goodman, “Social Security Tribunal saving money, but hearing fewer appeals”, The Star (22 September 2014) online: The Star <http://www.thestar.com>. 23 Leanne Goodman, “Ottawa’s Social Security Tribunal Backlog Shortlists 11,000 People”, The Canadian Press (1 December 2014) online: <www.thecanadianpress.com>.


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court limit of $25,000.24 The enabling legislation for the CRT allows for the

expansion of its jurisdiction at a later date.25

• The enabling legislation allows the CRT to gain jurisdiction via the consent

of the initiating party and either the consent of the responding party or a

statutory requirement under another statute.26 To start, consent will be

required from all parties except strata corporations, which are required to

participate in the CRT process if a strata owner voluntarily opts in.27

• The CRT’s final decision is binding on parties who have either consented to

the CRT process or who are required to participate under another statute.28

• Parties are required to represent themselves except in specific

circumstances.29

The CRT is intended to be a timely, flexible, accessible, affordable, and efficient

means to determine legal disputes, with online dispute resolution services available

24 hours a day. The Chair of the CRT has described the tribunal as an important

development for access to justice, and one that challenges what she has described as

the legal profession’s resistance to change that impedes necessary reforms to the

legal system.30 The legal profession has indeed expressed concerns about protecting

the right to legal counsel, power imbalances and a sacrifice of procedural

protections in order to save costs.31 It is yet to be seen whether these concerns are

warranted, but certainly a new and experimental tribunal like the CRT highlights the

necessity of meaningful accountability mechanisms.

24 Bill 44: Civil Resolution Tribunal Act, 4th Sess., 39th Parl., 2012, s. 3 and Schedule (not yet in force). 25 Ibid., s. 13 of the Schedule (not yet in force). 26 Ibid., ss. 4-‐7 (not yet in force). 27 Ibid., ss. 6-‐7; ss. 6-‐7 of the Schedule (not yet in force). 28 Ibid., s. 8 (not yet in force). 29 Ibid., s. 20 (not yet in force). 30 Shannon Salter, “B.C.’s Civil Resolution Tribunal” (Paper originally presented at the Osgoode Forum on Administrative Law and Practice, Toronto 23-‐24 October 2014 and the CLEBC Administrative Law Conference, Vancouver 30 October 2014) online: Civil Resolution Tribunal < http://www.civilresolutionbc.ca>. 31 Jean Sorensen, “B.C. lawyers worried about exclusion from new civil resolution tribunal”, Canadian Lawyer Magazine (2 September 2013) online: Canadian Lawyer Magazine <http://www.canadianlawyermag.com>.


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BC’s Employment and Assistance Appeal Tribunal

BC’s Employment and Assistance Appeal Tribunal (the “EAAT”) determines appeals

when the provincial government has refused, reduced or discontinued income

assistance, disability assistance or a supplement under the Employment and

Assistance Act32 or the Employment and Assistance for Persons with Disabilities Act.33

It also determines appeals under the Child Care Subsidy Act34 related to the refusal,

reduction or discontinuance of a low income child care subsidy.

The EAAT has the power to determine appeals by oral hearing or, with the consent

of both parties, in writing. Historically, the vast majority of oral hearings were held

face-‐to-‐face by a tribunal panel of one to three members. As recently as 2008, 86%

of EAAT’s oral hearings were held in person, or with at least one member of the

tribunal panel present in person, and the remaining 14% via teleconference.35 In

recent years, the EAAT has increasingly relied on teleconference for its oral

hearings, with only 64% held face-‐to-‐face and 36% held via teleconference.

While there is no evidence to show that the two trends are related, the increasing

use of teleconference hearings is particularly concerning given that the rates of

success for appellants appealing to the EAAT have plummeted over the same time

period. From the EAAT’s creation in 2002 and until 2009/10, success rates for

appellants appearing before the tribunal hovered between 27% and 40%.36 Starting

in 2010/11, there has been a steep decline in rates of success. In 2013/14, only 6%

of appellants appearing before the EAAT were successful in their appeal.

Increasing availability of communications technology is a positive step for the

accessibility of tribunals, but only for some participants. There is no question that a

32 S.B.C. 2002, c. 40. 33 S.B.C. 2002, c. 41. 34 R.S.B.C. 1996, c. 26. 35 Email from Alanna Valentine, Director, Policy and Appeals Management, 19 January 2015. 36 Employment and Assistance Appeal Tribunal. Annual Report, 2002/03, 2003/04, 2004/05, 2005/06, 2006/07, 2007/08, 2008/09, 2009/10, 2010/11, 2011/12, 2012/13, and 2013/14.


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hearing convened by teleconference or video conference is less costly than a face-‐to-‐

face hearing convened in the participant’s home community. However, heavy

reliance on technology to replace face-‐to-‐face hearings, particularly when used

without express consent or without transparent procedures for requesting in-‐

person hearings, creates a significant risk for access to justice at administrative

tribunals. Without effective accountability mechanisms to ensure that this

increasing reliance is not undermining the experience of participants or the

substantive outcomes of the adjudication process, we cannot guard against that risk.

Trend #2: Increased deference from reviewing courts

The second trend our office has identified is an increase in the deference awarded to

administrative tribunals by superior courts on judicial review. In particular, recent

case law from the Supreme Court of Canada related to the adequacy of reasons

issued by a tribunal appears to have substantially changed the BC Supreme Court’s

willingness to exercise its reviewing jurisdiction and quash tribunal decisions.

Adequate reasons allow a court to review the tribunal’s decision, they support

careful and well thought-‐out decision-‐making,37 and they enhance confidence in the

justice system:

In a now famous address, Sir Robert McGarry, Vice-‐Chancellor of England, has

reminded judges that the most important person in a lawsuit is not the judge, sitting

in elevated dignity on the dais, nor the lawyers, however eminent they might be; it is

the losing party [citation omitted]. In order that faith may be maintained in the legal

system, it is necessary that losing parties be satisfied that they have been fairly dealt

with, that their position has been understood by the judge, and that it has been

properly weighed and considered. It is, therefore, important that the reasons for a

37 Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817 at 38-‐39 [Baker].


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decision be stated, and stated in language that the party who has been dealt the

blow can comprehend.38

These outcomes are particularly important in tribunals designed to be time and cost

efficient while adjudicating the fundamental rights of low income people. Effective

reasons allow the parties to be confident that, despite informal procedures or

hearing methods, their case has been decided with a level of care and attention that

is appropriate given the interests at stake.

In 1999, the Supreme Court of Canada determined that the adequacy of a tribunal’s

reasons was a matter of procedural fairness. In some situations, inadequate reasons

could provide a stand-‐alone basis for a court to exercise its jurisdiction to quash a

decision on judicial review.39 In recent years, a body of case law highlighting the

necessity of fulsome written reasons for decisions of administrative tribunals

developed in BC.40 In those cases, the reviewing judges were willing to set aside

tribunal decisions based on inadequate reasons alone as a breach of procedural

fairness, because the tribunal:

• failed to deal with all the issues that were material to the application;

• failed to provide any reasoning to show a basis for the arbitrator’s factual

and/or legal conclusions; or

• failed to explain negative credibility findings.

38 Re Pitts and Director of Family Benefits Branch of the Ministry of Community & Social Services (1985), 51 O.R. (2d) 302 (Ont.H.C.) at 310-‐311.

39 Baker,, supra note 37. 40 See for example: Harley v. Employment and Assistance Appeal Tribunal, 2006 BCSC 1420; Ross v. British Columbia, 2008 BCSC 1862; Mochizuki v. Whitworth Holdings Ltd., 2008 BCSC 802; Doughty v. Whitworth Holdings Ltd., 2008 BCSC 801; Hudson v. British Columbia (Employment and Assistance Appeal Tribunal), 2009 BCSC 1461; Chartrand v. 0810867 B.C. Ltd (24 March 2009), Nanaimo 55039 (B.C.S.C.); Wiebe v. B&D Stinn Enterprises Ltd. (4 May 2010) Vancouver S100134 (B.C.S.C.); Clements v. Gordon Nelson Investments, 2010 BCSC 31; Falc v. Mainstreet Equity Corp., 2009 BCSC 410; Lobo v. 568570 B.C. Ltd., 2011 BCSC 1474; Collard v. British Columbia (Residential Tenancy Act Dispute Resolution Officer), 2011 BCSC 136; Andree v. Bentley, 2011 BCSC 641.


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In 2011, the Supreme Court of Canada decided Newfoundland and Labrador Nurses’

Union v. Newfoundland and Labrador (Treasury Board),41 finding that insufficient

reasons are not, on their own, a basis to set aside the decision of an administrative

tribunal. Instead, the Court said that a reviewing judge should look at the reasons

for a decision together with the outcome to determine whether a decision is

reviewable. A tribunal need only provide reasons that allow a reviewing court to

understand why it made the decision and whether the final outcome was justifiable,

even if the court has to go outside the tribunal’s reasons and complete its own

review of the evidence to make that determination. The Court endorsed the notion

that a reviewing court may supplement the reasons of the tribunal as part of a

deferential analysis.42

Since 2011, the Supreme Court of Canada has continued to reiterate its comments in

Newfoundland and Labrador Nurses’ Union.43 In the authors’ experience, this has led

to an increase in the level of deference provided to administrative tribunals. That

deference has been illustrated by cases in which the BC Supreme Court has

dismissed petitions for judicial review where:

• the tribunal provided no reasoning on an element of the legal test being

applied;44

• the tribunal acknowledged there were two competing interpretations the legal

provision being applied and provided no reasoning for why one way was

chosen over the other;45 and

• the decision-‐maker made no mention of the law or policy relevant to the claim

at hand.46

41 2011 SCC 62 [Newfoundland and Labrador Nurses’ Union]. 42 Ibid. at paras. 12-‐18. 43 See for example: Construction Labour Relations v. Driver Iron Inc., 2012 SCC 65; Rogers Communications Inc. v. Society of Composers, Authors and Music Publishers of Canada, 2012 SCC 35; Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp & Paper, Ltd., 2013 SCC 34; Agraire v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36; Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53.

44 Garbutt v. British Columbia (Social Development), 2012 BCSC 1276. 45 Samji v. HFBC Housing Foundation, 2012 BCSC 1367.

46 Ashurwin Holdings Ltd. v. British Columbia, 2012 BCSC 1408.


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This trend is concerning because the court appears to be moving away from the

view that reasons are important to enhance confidence in a tribunal’s decision-‐

making process and to allow the parties to understand why a decision has been

made. It appears that now a tribunal decision may well meet the standard set out in

the Newfoundland and Labrador Nurses’ Union case because the outcome is within

the range of rational outcomes, even if the reasons may not provide assurance of

care and attention by explaining how that outcome was reached.

For example, a court reviewing a decision of the Residential Tenancy Branch

upholding a tenant’s eviction will no longer review whether the reasons allow the

tenant to understand why she is being evicted, or leave her feeling that her right to

stay in her home has been carefully adjudicated. While the court will still review

decisions for patently unreasonable substantive errors of fact or law,47 such a high

standard of review often does not correlate with the parties’ perception of whether

the Branch fairly considered their case.

Many administrative tribunals that determine the rights of people living in poverty

are already afforded a deferential standard of review.48 The increase in deference

that comes with the elimination of a stand-‐alone review of a tribunal’s written

reasons highlights the needs for other kinds of accountability mechanisms.

Efficiency and accessibility often necessitate that tribunals use abbreviated

procedures that may not mirror the formality and detail of a court proceeding, but

access to justice requires that we also ensure that parties leave tribunal proceedings

understanding the decision and why it was made.

47 In BC, the applicable standard of review for many administrative tribunals is legislated in the Administrative Tribunals Act, S.B.C. 2004, c. 45, which continues to the standard of patent unreasonable for some tribunals. 48 The Administrative Tribunals Act mandates that a patently unreasonable standard of review applies to findings of fact and law within the exclusive jurisdiction of the Employment Assistance Appeal Tribunal, the Residential Tenancy Branch, the Employment Standards Appeal Tribunal and the Workers’ Compensation Appeal Tribunal, among others.


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Trend #3: Narrowing of superior court jurisdiction

The third trend our office has identified is the narrowing of superior court

jurisdiction to engage with legal issues that arise in areas governed by

administrative schemes. Since 2011, superior courts in British Columbia have

issued several decisions which purport to narrow the scope of judicial review of

administrative decisions and eliminate altogether an equitable remedy the court has

granted for centuries. This trend has serious implications for tenants, in particular,

who may find themselves without recourse if they lose their Residential Tenancy

Branch hearing.

The scope of judicial review

In 2011, the BC Court of Appeal released its decision in Auyeung,49 in which the

Court considered the proper subject of judicial review in an administrative scheme

where there is an internal review or reconsideration process. In administrative law,

parties are generally required to exhaust all internal remedies before applying for

judicial review. In Auyeung, the appellant Union was unsuccessful at the Labour

Relations Board (the “LRB”). Under the Labour Relations Code,50 a party who is

unsatisfied with a LRB decision may apply for leave to have the decision

reconsidered.

The Code sets out specific grounds for reconsideration. However, the grounds are

fairly broad. They are: 1) the original decision is inconsistent with principles

expressed or implied in the Code or another Act dealing with labour relations; 2) a

denial of natural justice; or 3) new evidence has emerged that is likely to have a

material and determinative effect on the original decision.51 To obtain leave, an

49 United Steelworkers, Paper and Forestry, Rubber, Manufacturing, Energy Allied Industrial and Service Workers International Union, Local 2009 v. Auyeung, 2011 BCCA 527 [Auyeung]. 50 R.S.B.C. 1996, c. 244 [Code]. 51 Auyeund, supra note 49 at para. 28.


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applicant must demonstrate a good arguable case of sufficient merit on one or more

of these grounds.

In Auyeung, the Union was denied leave to reconsider the original LRB decision. The

Union then applied for judicial review of both the original LRB decision and the

decision denying leave. However, the Court of Appeal found the original decision to

be outside the permissible scope of judicial review.

The Court held that the Legislature has limited the scope of review of LRB decisions

to the grounds for reconsideration, and that it could not expand this scope on

judicial review. If the LRB concludes the original decision is not inconsistent with

the principles expressed or implied in the Code or in any other Act dealing with

labour relations, a court on judicial review is entitled to determine whether that

conclusion is patently unreasonable, unfair or incorrect. If it is not, the matter

should end there. A court is not permitted to review the original decision.52

Since 2011, this decision has been applied to a number of other administrative

schemes including employment standards 53 , workers’ compensation 54 and

residential tenancy.55 From an access to justice perspective, the latter application of

Auyeung has the most serious implications.

Unlike the Code, the Residential Tenancy Act56 establishes a very narrow internal

review process for decisions of the Residential Tenancy Branch. A decision or order

of the Residential Tenancy Branch may only be reviewed on one or more of the

following grounds: 1) a party was unable to attend the original hearing because of

circumstances that could not be anticipated and were beyond the party’s control; 2)

a party has new and relevant evidence that was not available at the time of the

52 Ibid. at para. 33. 53 Gorenshtein v. British Columbia (Employment Standards Tribunal), 2013 BCSC 1499. 54 Pistell v. British Columbia (Workers’ Compensation Appeal Tribunal), 2012 BCSC 463. 55 Hudon v. British Columbia (Residential Tenancy Act, Dispute Resolution Officer), 2012 BCSC 253. 56 S.B.C. 2002, ch. 78 [Residential Tenancy Act].


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original hearing; and 3) a party has evidence that the decision or order was obtained

by fraud.57

Importantly, the grounds do not include the traditional grounds for judicial review,

including serious errors in fact, law or an exercise of discretion, or a breach of

procedural fairness. The internal review process does not address situations where

parties believe:

• they did not get a fair hearing at the Branch;

• their arbitration decision doesn’t make sense or doesn’t deal with all the

issues raised in the arbitration; or

• the arbitrator has applied the law improperly, or has made factual findings

that cannot be supported by the evidence.58

Despite the limited nature of the internal review mechanism at the Residential

Tenancy Branch, the Court of Appeal in Sereda v. Ni59 followed Auyeung and held

that in the residential tenancy context the proper subject of judicial review is the

review decision and not the original decision.

The implication of this recent decision for tenants is serious. If a tenant applies for

internal review of their original decision, even if the Residential Tenancy Branch

does not have jurisdiction to decide issues of fairness or errors in fact or law, the

tenant may be precluded from raising these arguments on judicial review. Original

decisions may be effectively immunized from review.

What makes this consequence particularly concerning is the prevalence of fairness

issues at the Residential Tenancy Branch that have the potential to go unremedied.

These issues were studied in the report, “On Shaky Ground: Fairness at the

Residential Tenancy Branch.” One methodology used in the report was the review

57 Ibid., s. 79(2). 58 Hadley supra note 12 at 22. 59 2014 BCCA 248.


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of a sample of Residential Tenancy Branch decisions for key indicators of basic

fairness; for example: stating the legal test to be applied, correctly applying the legal

test or applicable policy guideline, and providing at least some analysis to explain

key findings. In over 70% of the decisions reviewed, the authors identified at least

one objective problem with basic fairness.60

This finding is fairly consistent with the rate of success in residential tenancy

judicial reviews in recent years. Between 2008 and 2011, between 60% and 78% of

residential tenancy judicial reviews were successful.61 The most common reasons

relied on by courts to set aside an arbitrator’s decision were: unfairness (35%),

inadequate reasons (22%), and serious errors in the application of legislation

(30%).62

In 2012, the rate of successful residential tenancy judicial reviews dropped to

29%.63 Without accountability mechanisms in place it is impossible to know for

certain what caused that drop. However, the authors suspect it had more to do with

the Newfoundland and Labrador Nurses’ Union decision released in 2011 than a

drastic improvement in fairness at the Branch. It will be interesting to see whether

there will be another drop in success rates following the Court of Appeal’s recent

decision in Sereda.

The court’s equitable jurisdiction

For centuries, courts have exercised the equitable jurisdiction to relieve against the

forfeiture of a tenancy for non-‐payment of rent on its due date. Under the common

law, a landlord has the right to immediately terminate a tenancy agreement if the

tenant does not pay rent when it is due. However, courts of equity would often

grant tenants equitable relief where they had subsequently paid their rent on the 60 Hadley, supra note 12 at 28-‐29. 61 Ibid. at 25-‐26. 62 Ibid. at 27. 63 Ibid. at 26.


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basis that it would be unjust for a landlord who has been adequately compensated

to take advantage of the right to forfeit the tenancy.64

In British Columbia, the court’s equitable jurisdiction to grant relief from forfeiture

was first codified in legislation in 1897. It is now found in section 24 of the Law and

Equity Act. The Law and Equity Act casts the court’s equitable jurisdiction broadly

and mandates that it be applied in all courts in British Columbia.65 Consistent with

this direction, British Columbian courts have long held that in proper cases the court

has the power to order relief from forfeiture of a tenancy.66

However, that changed last year when the Court of Appeal released its decision in

Ganitano v. Metro Vancouver Housing Corporation. Ms. Ganitano is a single mother of

limited financial means who had lived in her rental unit for over 29 years. Because

of her difficult financial circumstances, Ms. Ganitano was late paying her rent

approximately once per year. However, she always paid her rental arrears and in

other respects was a good tenant.67

On one occasion of late payment, Ms. Ganitano’s housing provider issued her a

Notice to End Tenancy for non-‐payment of rent. Under the Residential Tenancy Act,

a tenant who has been issued such a notice has 5 days to either pay the arrears or

challenge the validity of the notice. If she does neither, then she is “conclusively

presumed to have accepted that the tenancy ends” and must vacate the unit by the

date set out in the notice.68 Ms. Ganitano paid 75% of her rent within five days of

receiving the notice. She paid the remainder seven days later. However, having

missed the five-‐day deadline, the Residential Tenancy Branch upheld Ms. Ganitano’s

eviction.

64 Hill v. Barclay (1811), 18 Ves. Jun. 56 (Ch.), at 58, 60-‐61; Howard v. Fanshawe, [1895] 2 Ch. 581, at 586, 588; Shiloh Spinners Ltd. v. Harding, [1973] A.C. 691 (H.L.(E.)) at 723. 65 R.S.B.C. 1996, c. 253, ss. 1 and 24. 66 Huntting v. MacAdam (1907), 13 B.C.R. 426 (S.C.), at 436; aff’d (1908), 13 B.C.R. 426 (F.C.), at 439-‐40; Orpheum Theatrical Co. v. Rostein (1923), 32 B.C.R. 251 (S.C.) at 264. 67 Ganitano v. Metro Vancouver Housing Corporation, 2012 BCSC 1308 at paras. 4-‐6, 10, 12, 14, 68, 74 [Ganitano 2012]. 68 Residential Tenancy Act, supra note 56, s. 46.


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Ms. Ganitano brought a judicial review of the Residential Tenancy Branch decision

and successfully requested that the court grant her relief from forfeiture of her

tenancy. Her housing provider appealed that decision to the Court of Appeal.

Last January, the Court of Appeal released its decision, finding that courts no longer

have the equitable jurisdiction to grant relief from forfeiture of tenancies governed

by the Residential Tenancy Act. The Court found the Residential Tenancy Act to

provide a comprehensive scheme for dealing with matters relating to the non-‐

payment or late-‐payment of rent in residential tenancy situations. According to the

Court, a tenant’s obligation to pay rent is no longer merely a matter of contract but

an obligation imposed by statute. The Legislative Assembly has clearly and

expressly stated that a tenant’s failure to respond within the statutory time limits to

a notice given in accordance with the Act will, by operation of law, bring a tenancy to

an end and entitle the landlord to regain possession of the rental unit. Such a

termination was found to be a statutory forfeiture and beyond the reach of the Law

and Equity Act.69

Ms. Ganitano sought leave to appeal this decision to the Supreme Court of Canada,

but leave was denied.70

This decision has serious implications for both tenants and the jurisdiction of

superior courts. For tenants, the loss of the right to seek relief from forfeiture has

the potential to leave unremedied the harsh and disproportionate results that may

flow from late payment of rent.

Over 30% of British Columbia’s households rent their living accommodations71 and,

at least in Vancouver, low-‐cost housing is not readily available. 72 It is not

69 Ganitano v. Metro Vancouver Housing Corporation, 2014 BCCA 10 at paras. 42-‐44. 70 Ganitano v. Metro Vancouver Housing Corporation, [2014] S.C.C.A. No. 98. 71 Hadley, supra note 12 at 6.


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uncommon for a tenant facing financial difficulties to fail to pay rent on time but be

in a position to pay shortly after it was due. In such circumstances, an application

for relief from forfeiture may be the only way of averting sudden eviction.

The availability of such a remedy was of particular significance in jurisdictions like

British Columbia where residential tenancy decision-‐makers have no discretion to

depart from or extend the strict statutory timelines governing late payment of rent

or applications for dispute resolution.73 The rigidity of this scheme has the potential

to lead to a number of unfortunate and disproportionate results. For example,

tenants may be evicted with no recourse even where:

• they are late paying rent (even for the first time) because of circumstances

beyond their control;

• they are short in paying their rent one time only by a few dollars;

• they repay all arrears within six days of receiving a notice to end tenancy (i.e.,

one day late); or

• they do not pay the alleged arrears because they honestly believe there is no

rent owed.

Without the jurisdiction to grant relief from forfeiture, courts will be unable to

remedy inequities that arise by operation of the Residential Tenancy Act in situations

like those above. Tenants will have one fewer avenue to protect their housing

security, and any perceived unfairness in the decision-‐making process will be

compounded by the absence of an effective remedy.

Without this important recourse, meaningful accountability mechanisms for

decision-‐makers like BC’s Residential Tenancy Branch become important in order to

determine whether the Branch is truly meeting its intended policy goals. While in

this example, true accountability mechanisms might reveal that the Branch is

functioning as well as it can within its governing legislation, accountability 72 Ganitano 2012, supra note 67 at para. 74. 73 Residential Tenancy Act, supra note 56, s. 66.


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mechanisms focused on actual outcomes for those involved in the system may

highlight problems with the legislation itself.

Conclusion

The last several years have seen important changes to tribunals across Canada.

Reduced cost and increased efficiency have become the priorities of the day with

little analysis about the impact on the quality of decision-‐making or the fairness of

the administrative process. One application of those priorities is the trend discussed

in this paper of increased reliance on teleconference technologies and the reduction

in face-‐to-‐face hearings. However, there are others. Take for example the reliance on

short hearings and quick decisions at the Residential Tenancy Branch. Branch

statistics show that between 2007 and 2012, between 92% and 94% of all hearings

annually took place in less than an hour, and 68% to 70% took place in less than 30

minutes.74 Although arbitrators are given 30 days to issue a decision, in 2011/12

the average time between a Branch dispute resolution hearing and the issuing of a

decision was 1.1 days, including both urgent and non-‐urgent disputes.75 Given that

most full-‐time arbitrators handle 14 disputes per week, including writing decisions,

it is little wonder that each dispute gets limited time.76

At the same time that tribunals are becoming more informal and efficient,

traditional methods of oversight in the form of review by superior courts are being

eroded. As discussed in this article, the scope of judicial review has been narrowed

to statutorily circumscribed review or reconsideration decisions and even those

decisions are reviewed on an increasingly deferential standard. As well, residential

tenants no longer have the option of invoking the equitable jurisdiction of the court

to relieve against the forfeiture of their tenancy where there is no relief available 74 Hadley, supra note 12 at 33, which notes that at the time of the writing of that report, arbitrators completed 15 hearings per week. Since the writing of On Shaky Ground, we have been told verbally by the Director of the Residential Tenancy Branch that the number of hearings per week has been reduced to 14 and may soon be reduced to 13. 75 Ibid. at 47-‐48. 76 Ibid. at 47.


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under the Residential Tenancy Act. The result is that fundamental legal issues that

may very well impact a person’s long-‐term health and wellbeing are being decided

quickly and informally with limited avenues for review or oversight.

Unfortunately, any negative consequences of the trends identified in this paper will

disproportionately impact low income people. Low income people are more likely to

be tenants, more likely to claim welfare or disability assistance, and more likely to

have to rely on legislated minimum employment standards. They are more likely to

have to enforce their legal rights through an administrative scheme rather that the

court.

The fact that it is often administrative decision-‐makers adjudicating fundamental

rights that may have long-‐term and significant impacts on an individual’s health and

wellbeing means that we need to take care to ensure that those administrative

decision-‐makers are properly resourced and operate effectively and respectfully.

With such essential rights at stake, and with such great potential for risk to the

individual if these rights are not dealt with appropriately, accountability

mechanisms become essential. Access to representation and the courts remains

incredibly important, but meaningful access to justice for low income people

necessitates more. It requires access to administrative decision-‐makers that are

effective in exercising their statutory and broader policy duties with a level of

accuracy, fairness, professionalism and respect that leaves people living in poverty

with the understanding that their legal rights are important enough to be taken

seriously.


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Looking Out/Looking In – Part III

Bad Weather Elaine Gamble

This is a picture of me driving out to my reserve to try to get financial aid because my power and my rent was due. My husband lost his job and we’re having a really

hard financial time. I had to take my kids on the highway in this kind of weather because if I didn’t, my power was going to get cut off and I wasn’t going to

have a place to live with my children. It was a gamble to go out because I wasn’t guaranteed anything, and, in

fact, I didn’t receive anything.


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Suicide Prevention Lynn

I live alone and often suffer from depression and yet I am not allowed enough money to feed and care for my ‘antidepressant.’ If I commit suicide,

who will take care of her?


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The Empty Shopping Cart Butterfly Russell*

To me the empty shopping cart is symbolic. A shopping cart should be full of groceries and have a little kid

bouncing up and down in the seat. But for many, every time they look at a grocery cart they feel guilty because

they don’t have enough money to fill it up with groceries. And the other thing I think when I look at a grocery cart is, ‘Thank God I’m not the one who’s got all my worldly possessions in it.’ Or I could be wandering up and down back alleys picking up pop bottles. So the

shopping cart has a lot of meanings.


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Feed or Bleed Lynn*

The choice is clear. If I don’t eat – no one will know. If I don’t buy sanitary supplies – everyone will know. I already use $110 toward extra rent money needed, out of

the $210 that I have to live on.


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Getting to the Bus Stop Butterfly Russell*

This is outside my apartment block and I stuck my cane in there because I wanted that to be part of the picture. Unfortunately I can’t afford to run a car and so I have to walk up to the bus stop all year round. And in weather conditions like that, the bus stop may as well be two miles away

because I feel that I can’t get there. I am scared of falling. I just wish that I had a car.


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Maximizing Community and Interdisciplinary Impact: The Civil Practice Clinic at the Indiana University Robert H. McKinney School

of Law By Carrie Hagan, Director, Civil Practice Clinic and Clinical Associate Professor of Law Introduction The Civil Practice Clinic (CPC) at Indiana University’s Robert H. McKinney School of Law

has been in existence for nearly thirty years. In its early years the clinic was run out of a

non-‐profit and the law school, and once a new law school was completed, given its own

clinic office space with a separate security entrance in 2001. Currently the CPC is one of

seven clinics at the law school, the other six focusing on criminal defense, wrongful

conviction, appellate advocacy, immigration, health and human rights and disability. The

CPC is included in two graduation certificate programs (Environmental and Natural

Resources Law as well as Advocacy Skills) and exists as part of a larger skills curriculum in

addition to courses such as Trial Practice, Lawyering Practice (focus on pretrial and

drafting), Interviewing and Counseling, Mediation and Negotiations. The mission of the

clinic is multi-‐faceted: to give students a pedagogically sound and inspirational learning

environment; to positively impact the surrounding community; and to provide competent,

thoughtful and zealous representation to as many low income clients as possible each

semester.

Community Partners and Processes

Throughout the years, the CPC has had several community partners, the longest standing

one of which is Indiana Legal Services (ILS), a non-‐profit organization that once housed the

clinic in its early stages. In addition to ILS, the clinic also has formed partnerships with The

Julian Center (a nationally recognized domestic violence shelter/counseling center);

Muslim Alliance of Indiana (a local nonprofit focused on five areas of community impact:

justice, interfaith, youth, hunger and engagement); Neighborhood Christian Legal Clinic (a


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local non-‐profit specializing in indigent representation); Indiana Youth Group (a local non-‐

profit specializing in youth programming and events for LGBT youth); Indiana Coalition

Against Domestic Violence (a state-‐wide organization working on domestic violence

issues); Center for Victim and Human Rights (a local non-‐profit working in the areas of

immigration and domestic violence for victims of domestic violence); Marion County Court

21 (domestic violence) and Court IV-‐D (child support enforcement); and the Indiana

University School of Social Work, among others.

All of the community partners are not only able to send case referrals, but also brainstorm

with the clinic students as to projects that need researching, areas of impact advocacy and

identifying gaps in services. The relationship with the two specific courts has allowed the

clinic to establish two fixed dockets each week where all clinic cases can be scheduled. This

scheduling process allows for all involved to easily identify clinic cases/clients,

concentrates the amount of student/legal supervisor time in court and enables case

outcomes to occur prior to the end of each semester. Students are thus better able to

accommodate their scheduled hearings, as well as avoid all holiday and summer breaks.

Accepted cases are generally of a fixed duration so that students can take several each

semester without being overwhelmed, competently learn specific areas of the law and see

their cases from beginning to end.

Current Operations

Currently the clinic enrolls eight students a semester. The students must have completed at

least 45 hours of their law school education as well as a professional responsibility/ethics

course. Students are given an opportunity to re-‐enroll for later semesters for additional

credit and mentoring incoming students. Class is held twice a week, with one class being

devoted to the substantive law involved in the cases as well as trial skills, and the second

focusing on case/client issue reflection via group case rounds. Accepted cases cover civil

protection orders, divorces, child support modification/emancipation, guardianships,

housing, small claims, and other miscellaneous civil matters as needed.


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Two fixed dockets where cases can be heard and scheduled have been arranged with the

local courts. Tuesday mornings consist of intake and assistance with child support

enforcement petitions to modify or emancipate child support orders, frequently for

persons on social security disability who are having their monthly check heavily garnished

for child support payments. This docket was created after several years of taking cases

with the above issue from ILS, but having hearings spread throughout the week. By

connecting with the child support enforcement prosecutorial office and the judicial officers

in the court, a fixed day and time was set for all clinic cases to be heard, in exchange for

doing moderate intake and referrals as could be accommodated. A second docket was also

created in the main domestic violence protection order court through a partnership with

The Julian Center, the Muslim Alliance of Indiana and the Center for Victim and Human

Rights. All domestic violence cases are heard and scheduled for Thursday afternoons. The

domestic violence docket allows clinic students to directly represent petitioners seeking

orders of protection as well as assist with other family or civil matters as well.

Interdisciplinary Growth

Upon noticing that law students were having difficulty connecting clients to services and

digesting the emotional content of their cases, and similarly that social work students were

needing more understanding of the law and legal processes, a partnership was formed with

the Indiana University School of Social Work to create an interdisciplinary environment

where law and social work students could learn from and work with each other. Via a

Curriculum Enhancement Grant awarded by the Indiana University Center for Teaching

and Learning, and support from both schools, the clinic was made officially

interdisciplinary in the spring semester of 2011. A model was thus created and

implemented allowing both Masters in Social Work (MSW) students and law students to

enroll in the clinic each spring, where they share all classes and are paired on cases for

holistic client representation and assessment. In addition to sharing their work and

academics, students develop client materials for the clinic and research issues affecting

client populations and create action plans for addressing barriers.


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When implementing the interdisciplinary partnership model, a blended curriculum was

created to focus on skills each student set needs for working with clients. To increase the

competency of the law students, social work theories of motivational interviewing, systems

theory, cultural competence and strengths perspective are all introduced. Similarly, to

familiarize social work students with the demands of litigation, lessons on trial preparation

and procedure as well as court processes/expectations are explained. Students are

organized into pairs based upon weekly availability, and required (with client permission)

to conduct the initial client interview together, with any assessment/referrals and

representation occurring as the pair sees fit following that first meeting. In addition to the

above, the curriculum also focuses on ethical issues of each profession (and what happens

when they intersect), poverty, office procedures and protocols and self-‐care, among other

topics.

Future Directions

The creation of both the fixed dockets and the interdisciplinary collaboration allow for

expanded growth in several areas. Firstly, more fixed dockets can be created in areas

where there are gaps in services and demonstrated student interest. An example of this

can be found in the local small claims court. Currently landlord tenant disputes/evictions

are heard each day. Landlords typically have representation or are able to adequately

represent themselves pro se, however no one local legal services agency has a specific

practice group or enough resources assigned to assist tenants with issues of eviction

defense, among others. Currently the clinic is developing a tenant information helpline

which can be staffed by first year law students, CPC and MSW students, and which will offer

an assessment of a tenant’s situation under the law and any advice that goes along with it,

when permitted. This helpline will not only assist tenants in identifying their rights but will

open up experiential learning opportunities for first year law students and allow

documentation of client issues to be collected for the later creation of a court docket

assisting tenants with those issues. Expansion into the areas of mediation and limited

family representation are also a goal, provided that concrete parameters and dockets can

be established.


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Secondly, with the creation of additional dockets, and thus clinic areas of concentration,

ideally eight students will be enrolled in each identified concentration, with additional

supervising attorneys assisting with supervision and cases. For example, once the clinic

has four established concentration dockets (i.e. domestic violence, child support, mediation

and small claims) each concentration docket will enroll eight students to staff and work the

cases/clients involved in their assigned docket. Ideally all concentrations will share the

same course class, which will allow for shared learning and group continuity throughout

the semester. Not only will more students enrolling increase the overall client base being

served, but it will expose more students to experiential learning, thereby increasing the

population of new graduates who have mastered some confidence in working with clients

and court systems. Future interdisciplinary collaborations are also a goal, for example

developing a partnership with the undergraduate Latino Studies department to increase

access to services and decrease client language barriers.

Community impact, student growth and effective client representation are all part of the

past, present and future of the CPC. By nurturing and creating partnerships, maintaining an

interdisciplinary focus and flexibly adapting to changing times and client needs, the CPC

will continue to be a driving force in both legal education and the surrounding community.

For more information or to encourage a student to apply for our program, please visit:

http://mckinneylaw.iu.edu/practice/clinics/clinics-‐list.html.


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88

Looking Out/Looking In – Part IV

Black Mould Dawn McGraw*

I have black mould in my basement. I have tried to clean it regularly with bleach. It keeps coming back; it’s spreading. I have told them this is not healthy for my children. I have a very damp basement so I am not surprised. My house is very old. My landlord takes forever to come in and fix things—things that are a

danger and put my children at risk.


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My Journey Virginia Beebe

This is like a path, a journey —the journey I have been on since I became a teen parent. Always searching for ways to break out of that box, break out of that system, and to be who I was inside and not what everyone would tell me I

was.


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Self Portrait Virginia Beebe

I am in a transition period. I am going to convocate from university soon. I do not believe I could be sitting here today without the support network that I experienced at my high school, Nutana Collegiate. They approached with a wraparound philosophy to give every

opportunity to that child to open that door, and to support them when they walk through that door.

They have been key to my story.


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Law Students' Legal Advice Program (LSLAP)

Introduction & History

The Law Students' Legal Advice Program (LSLAP) provides free legal advice and

representation to people who cannot otherwise afford legal help. We cover a wide variety

of areas that fall within our poverty law mandate, including criminal law, small claims,

employment standards, residential tenancy, WCB, consumer protection, employment

insurance, social assistance, wills and estates, immigration and refugee, incorporation of

non-‐profit organizations, and human rights.

The program was established over 40 years ago, when students from the UBC Faculty of

Law first operated a summer legal clinic called Vancouver Inner-‐City Services. This

program expanded to include a small number of clinics operating on a weekly basis during

the school year. In 1978, the program was incorporated as the Greater Vancouver Law

Students' Legal Advice Society, a non-‐profit society.

From those roots, LSLAP has grown into a large organization of over 200 dedicated student

volunteers staffing over 20 legal clinics across the Greater Vancouver Regional District on a

year-‐round basis. Three of those are specialty clinics, with one serving clients in Chinese

(Mandarin and Cantonese) and two focussed on immigration and refugee matters. LSLAP

students assisted approximately 3200 people during the 2012-‐2013 year, making LSLAP

the second-‐largest provider of free legal services in British Columbia. We emphasize full

representation wherever feasible.

How We Work

Our students play an important role in providing access to justice, but having them do so

presents a unique set of challenges. As a primarily student-‐run program, LSLAP's makeup

changes on a yearly basis, with the bulk of LSLAP clinicians being first year students. In


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order to provide the most service while maintaining quality, LSLAP has a number of

structures and policies in place to provide oversight, continuity, and opportunities for early

and ongoing training.

Oversight

At the highest level, a board of directors, composed of one UBC Law faculty representative,

three LSLAP student members, and interested members of the legal community, oversee

the program, including hiring the supervising lawyers.

Day-‐to-‐day administration of the program, however, is primarily the responsibility of the 6-‐

member student executive committee, working closely with staff lawyers and

administrative staff. The executive is elected for a one-‐year term by the LSLAP

membership, is headed by the Executive Director, and reports to the Board and to the Law

Foundation.

Getting to Work

To equip new students to handle files as soon as possible, mandatory training sessions are

held at the beginning of the year, with further sessions held throughout. Once students

have attended those first sessions and signed the LSLAP Code of Conduct and Practice, they

can attend their first clinics. School-‐year clinics are held on a weekly or bi-‐weekly basis,

with space provided by a variety of community organizations at no cost.

Each clinic is staffed by a clinic head and clinicians. Clinic heads are elected by their fellow

clinicians at the end of the first semester of the school year for one-‐year terms. They

oversee clinics, manage files, liaise between the student executive and the volunteers, and

provide mentorship for student volunteers who lack experience in the program. Special

training sessions are held for clinic heads, to train them in file management and running

clinics.


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At the clinics, students conduct half-‐hour intake interviews (hour-‐long at immigration and

refugee specialty clinics). Under the supervision of practicing volunteer lawyers, clinicians

review the facts of clients’ cases and collect documents.

After intake, the program supervising lawyers (one for civil and one for criminal files) then

assist the students to determine the level and type of service, and supervise all file work.

The supervising lawyers review all legal work and provide guidance and training to

students. In addition to the supervising lawyers, LSLAP employs a full-‐time office

administrator who has been with our program since 1997 and is an invaluable staff

resource.

In order to avoid overburdening new clinicians, students are able to take on as much or as

little work as they like, in consultation with supervising lawyers. Mentorship is also

available from a variety of sources, including clinic heads, more experienced clinicians, and

executive members. At least one executive member is available for consultation during

lunch hours, and upper years students are actively involved in making LSLAP a welcoming

place for new students. We also have a variety of precedents throughout the areas of law

we cover which are updated regularly.

Other Opportunities

Beyond volunteering, students can enroll in a credit program, through which they receive

course credit for major file work. Major files may consist of full trials in provincial court,

oral or written submissions to a tribunal, immigration applications, sentencing

submissions or peace bonds, small claims applications, and anything else the supervising

lawyer determines should be worth credit. Credit students also mentor volunteers, and

supervise a clinic at Robson Square Small Claims Court.

Our operations continue during the summer, when LSLAP runs the same number of clinics

but with a greater capacity for file intake. Approximately 15-‐25 students have full-‐time

paid positions during the summer. The positions are distributed through a jobs draw.


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Students earn ballots through regular clinic attendance and file work during the year. As

such, the jobs program acts as an incentive for students to volunteer during the school year,

and allows the program to continue operating on a large scale throughout the summer.

Summer clinicians run day-‐time clinics 3.5 days during the week and supervise volunteer

clinicians from law schools across Canada who participate in our summer program. In

addition, paid students are responsible for editing and updating a chapter of the LSLAP

manual, which is published yearly and is available for order in physical copies and at no

cost online. The manual is intended to be the first stop for students doing research, as well

as to educate members of the general public. At over 1000 pages, it provides information

on 22 areas of law, and is used by libraries and organizations throughout British Columbia.

Future

LSLAP already plays a significant role in providing access to justice to people for whom it

would not otherwise be available. However, we plan on continuing to expand our role in

particularly underserved areas. We are currently running a pilot project through which

students assist persons in custody with filing appeals. Students travel to the institution,

where they meet with clients and assist them with filling out the necessary forms.


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Looking Out/Looking In – Part V

“You Can Tie My Hands but you Can’t Kill My Spirit”

Butterfly Russell

My hands are holding my

assistance cheque, tied, and a lit candle represents my spirit. I think that says it all. I feel that my hands are tied when I am on

assistance but I am at the point in my life whre I just

cannot afford to let it get me down. I've been through

depression and upset and I'm just not going to let it happen anymore. And so the candle may flicker once in a while but its going to continue burning as long as I have any say. And Government does tie your hands. Bureaucracy ties your hands. Poverty ties your hands.


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Happy Times Moe S.

I have come from a lot of different places behind me and I try to live every moment as much as I can. This is one of my happy times. The school is a real important place in our family. It really brought us home. And our events are so much like a family get-‐together. It is really important to me to

have that.


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