Last year, and just in time, the federal government stepped in to bridge the funding gap of the three Law Help Centres in Toronto and Ottawa. This resulted from Ontario Premier Doug Ford’s provincial government refusing to do so. While the federal government’s move should not be minimized, there is a longer-term question of what continued funding for Law Help Centres will look like after 2019.
The possibility of losing the services provided by Law Help Centres stirred many lawyers and judges to speak in defence of the centres; none of their clients can afford lawyers or qualify for help from Legal Aid. With the threat of closure looming, the contributions made by the Law Help Centres to improving access to justice and promoting the administration of justice were lauded by lawyer and judge alike. Lawyers spoke up on behalf of the centres, made public their plight and donated to the funding goal. Judges also sounded the alarm and extolled the benefits associated with assisting individuals who are compelled to represent themselves in the civil justice system with little or no meaningful assistance. In the provincial legislature, politicians challenged Attorney General Caroline Mulroney when she refused to address the issue on behalf of the current government.
Despite the chorus of voices speaking out, there was one important voice missing — the Law Society of Ontario. The LSO remained silent presumably because it maintained that it is a “regulator” rather than a “source of funding.” However, this is problematic particularly when we think about the fact that most self-represented litigants represent themselves because they cannot afford lawyers. Many Ontarians have been priced out of the legal services market by the profession and, as a consequence, must go it alone.
This is further complicated by the fact that self-represented litigants are often up against parties that have legal representation, thereby making for a very unfair fight. While I am not making the claim that the setting of legal fees should be completely regulated or capped, I am suggesting that the profession take its share of responsibility and be part of the solution. As the regulator of lawyers in Ontario, the Law Society of Ontario is in a unique position to compel the profession to act in concrete ways.
Under s. 4 of the Law Society Act, the LSO must be guided by certain overarching principles. Among these principles are the LSO’s twin responsibilities for advancing the cause of justice and the rule of law and promoting the public interest. In this case, there is a strong argument that the public interest includes providing Ontarians with affordable access to accurate legal advice and information that will assist them in managing and resolving their legal disputes. Whether this be through the competent legal services of paid lawyers or the provision of pro bono advice at the Law Help Centres should not be the distinction.
Even more fundamentally, s. 4.2 of the LSA requires that the LSO facilitate access to justice for the people of Ontario. In return for a commitment to these various objectives, the LSO retains sole responsibility for the regulation of the profession. There could be no more direct correlation between the duties and responsibilities of the LSO and, by extension, the profession and the need to continue funding Law Help Centres as a means of promoting access to justice for Ontarians. While there continues to be important discourse within the LSO and with the public regarding its commitment to improving access to justice, it is time, as former Supreme Court Justice Ian Binnie recently suggested, for the LSO (and the profession) to “put its money where its mouth is” and support access to justice in a meaningful way.
As a means of doing so, Binnie suggested the LSO take steps to introduce a levy on individual lawyers’ dues that would contribute to the funding of Pro Bono Ontario and the Law Help programs run by PBO. Such a levy could be as low as $10 a year per lawyer — a small price to pay for improving access to justice for more than 18,000 self-represented Ontarians a year. Such a contribution would be consistent with individual lawyers’ pro bono responsibilities.
This designated use of lawyer’s levies is already being used in other jurisdictions in Canada. In Alberta, the law society levies a “tax” of $43 per lawyer toward pro bono programs in the province. In Saskatchewan, each lawyer registered with the provincial regulatory body contributes $15 toward pro bono initiatives in that province. In British Columbia, the law society contributes approximately $28 annually per lawyer to pro bono programs. If the LSO is worried about this very modest amount being added to its annual lawyer fees, it could easily repay its members by giving them CPD credit for a portion of the pro bono work they do throughout the year. In any event, this seems both an easy and sensible course of action.
As we approach another round of bencher elections within the LSO, it is critical that this issue be resolved. A number of bencher candidates are prioritizing access to justice as part of their campaigns. The profession needs to stay engaged and elect regulators who understand this imperative and are prepared to take steps to address it. Ultimately, the directing minds of the LSO must catch up to the initiatives being implemented in other Canadian jurisdictions. Steps to provide for legal information and advice for all Ontarians consistent with meaningful access to justice must be taken and the LSO should be front and centre in that effort.
Jennifer Leitch is a lawyer and research fellow at the Canadian Forum on Civil Justice, as well as an adjunct professor at Osgoode Hall Law School and the University of Toronto Faculty of Law. Previously, she practised civil litigation at Goodmans LLP.