Talk at UBC Law class, "LAW 481C.005 – Access to Justice and the Modern Litigant" on April 2, 2015

1. The Future of Access to Justice:
Drivers for Change, and their Impact on Accessible Legal Services
UBC Law
LAW 481C.005 – Access to Justice and the
Modern Litigant
Prof. Jamie Maclaren
Guest Speaker:
Omar Ha‐Redeye
AAS, BHA(Hons), PGCert, JD, LLM(c)
CNMT, RT(N)(ARRT)
April 2, 2015

2. What is A2J?
• My definition:
– Ability of everyone to properly access the remedies
provided by Canadian law, regardless of income
• What inhibits A2J?
– Ultimately a resource issues (time, money,
infrastructure)
– But stagnation occurs due to inaction and low political
prioritization

3. Where are the Problems?
• family law litigants typically do not use lawyers
– Up to 70% unrepresented
• legal advice sought for less than 15% of justiciable
problems
• People with legal problems get help from non‐lawyers
– Personal injury
– Employment
– Housing
• 1/3 of low and middle‐income Ontarians did not seek
legal assistance for legal problems

4. A2J is Inextricably Related to Legal
Costs
• biggest reason for self‐representation is inability
to afford to retain, or continue to retain, a lawyer
– 259 self‐represented litigants in family and civil law
matters in Ont, BC, Al
• People are always sensitive to cost
– the more serious the problem, the more legal services
are likely to cost
– serious legal problems often cost more than the
average person can afford

5. Is A2J a Supply/Demand Issue?
• The demand for legal
services remains strong
– Law is a conflict
resolution mechanism
– Conflicts will continue to
occur in Canadian society
– Courts continue to be
backlogged with cases

6. Is the A2J Problem a Supply Issue?
• If so, supply of what?
– 1. Shortage of lawyers?
• 83,675 total practicing members (2010), or 0.25% of
Canadian population
– 0.36% in the US, but less than 0.03% in Japan
• How necessary are lawyers to resolving all disputes?
Are there better ways to do this?
– Or, can lawyers help develop these alternative mechanisms
for dispute resolution?

7. – 2. Shortage of legal services?
• Emphasis of services away from public‐facing areas
– Students facing greater debt burdens, challenges with public‐
facing practice (criminal, family, civil litigation, etc.)
» Public‐facing practice not well‐funded enough or
increasingly unsustainable
– Increased specialization of law, difficulty in maintaining
competency in areas where not routinely practicing in
» Decline of the general practitioner

8. – 3. Shortage of capital?
• Small businesses, limited resources
– In Ontario, sole practitioners account for 77% of Ontario’s law
firms
» Big firms (>51 lawyers) are less than 1% of all firms
– Smaller practitioners lack the ability to expand or properly
manage their practice efficiently
» Don’t receive practice management training
» Don’t have the time/energy to learn business skills, tax
skills, marketing, human resources, etc.

9. Contemporary Drivers Which May
Affect this Supply
1. Number of lawyers appears to already be on the rise
– Growing law school class sizes
• From 2013‐2014, increase of 270 students in first‐year Ontario law
schools
– New law schools
• Lakehead (Ont.), TRU (B.C.), Memorial University? (Nfld), TWU?
(B.C.)
– Foreign law grads (even if Canadians)
• Canadian law classes in foreign law schools (UK, Ireland, Australia,
US)

10. 2. The way that we provide legal services is already
changing
– Lower skilled services are being carved out to licensed
paralegals (coming soon to B.C.)
3. Self‐regulation or exclusivity being challenged
– If we cannot serve the public interest, others will serve it
for us

11. 1. Effect of More Law Grads
• Most immediate effect is a bottleneck
– Not enough articling positions
• Ontario bar promised to take care of its own
(2007), but failed
– Created a Law Practice Program (LPP) in 2012

12. The Articling Debate

13. Focus of LPP
• Virtual law practice, in practice groups, using
problem‐based learning
– Intended to simulate practice management in a real
firm
– Wide diversity of practice areas, but special focus on
public‐facing law
– Considerable emphasis on practice management,
including legal accounting
• The end effect?
– Lawyers better prepared to practice independently,
and serve the public interest?

14. 2. The Changing Dynamics of Public‐
Facing Law
• Public facing law simply does not make
(enough) money for most practitioners
– Shortages in Legal Aid funding
– Small issues/amounts in dispute (i.e. small claims,
WSIB and other tribunal work, summary offences)
– Legal overhead can’t justify providing these
services at rates the public can afford
• Potential solution? Carve out these areas for
more cost‐effective legal professionals

15. R. v. Romanowicz,
1999 CanLII 1315 (ON CA)
• [88] A person who decides to sell t‐shirts on the
sidewalk needs a licence and is subject to government
regulation. That same person can, however, without
any form of government regulation, represent a person
in a complicated criminal case where that person may
be sentenced to up to 18 months' imprisonment.
Unregulated representation by agents who are not
required to have any particular training or ability in
complex and difficult criminal proceedings where a
person's liberty and livelihood are at stake invites
miscarriages of justice. Nor are de facto attempts to
regulate the appearance of agents on a case‐by‐case
basis likely to prevent miscarriages of justice.

16. Creation of Licensed Paralegals
• Fittingly titled, Access to Justice Act passed on October
27, 2005
– Schedule C amended Law Society Act
– Royal Assent on October 19, 2006; effective date of May 1,
2007.
• Features of new profession:
– Pass an approved college course, be of good character, and
a licensing exam
– required to follow a code of conduct, carry insurance, and
pay into a compensation fund
– subject to discipline, including loss of licence after a
hearing

17. Morris Report (2012) on Changing Role
• Law Society’s duty to facilitate access to
justice does not simply expand upon its role, it
profoundly alters it
• Now incumbent to drive the provision of legal
services to most accessible, most appropriate
level
• The challenge is doing so without
compromising professional standards or
protection of the public interest

18. Scope of Practice
• Small Claims Court
• Ontario Court of Justice
under the Provincial
Offences Act on
summary conviction
offences (max 6 mos.
imprisonment)
• administrative tribunals
LSUC By‐Law 4, 6 (2)
Services include: legal advice about interests, rights or
responsibilities; draft documents for use in a proceeding;
negotiate on behalf of a person who is a party to a proceeding.

19. • 74 per cent of clients
were satisfied or very
satisfied with the
services they had
received.
• 87 per cent would
use paralegal service
again.
• 68 per cent reported
that paralegal
services were good
value

20. Shortcomings in Paralegal Education
• Absence of prerequisite education, work/life
experience, and/or demonstrated aptitude (i.e.
LSAT) for acceptance
• basic language skills
• substantive legal knowledge
– especially advocacy and the presentation of evidence
– Limits how far scope can be broadened
• Lack of meaningful period of apprenticeship
– Another “articling” crisis or bottleneck?

22. Licensed Paralegals in B.C.
• The Law Society, B.C. Supreme Court and B.C.
Provincial Court have a embarked on a two‐
year pilot project to permit designated
paralegals to appear in court
• Widely expected that B.C. will follow Ontario
model
• What is the impact on A2J and/or legal
services in B.C.?

23. 3. Knowledge is Infinite. Skills are Not.
• Law is complicated enough, and is ever
expanding
– Lawyers cannot realistically expect to be fully
competent in a practice area(s), and also
proficient in business skills
• Can we benefit from bringing in outside
expertise and capital?
– Would the public benefit from this?

24. Why ABS (LSUC)?
• The Law Society is interested in determining
whether alternative business structures can:
– facilitate greater flexibility in the delivery of legal
services;
– foster innovation in the area; and
– improve access to legal services for consumers.

25. Cost Diverts Legal Consumers
• people who use online providers are, from the
perspective of the legal profession, lost clients
• the existing business structures are not
effectively serving the market

27. LSUC Proposed ABS Models
1. Business entities providing legal services only
in which individuals and entities who are not
licensed by the Law Society can have up to 49
per cent ownership
2. Business entities providing legal services only
with no restrictions on ownership by
individuals and entities who are not licensed
by the Law Society.

28. 3. Business entities providing both legal and non‐
legal services (except those identified as posing
a regulatory risk) in which individuals and
entities who are not licensed by the Law Society
would be permitted up to 49 per cent
ownership.
4. Business entities providing both legal and non‐
legal services (except those identified as posing
a regulatory risk) in which individuals and
entities who are not licensed by the Law Society
would be permitted unlimited ownership.

29. Response by the OBA
• Largely indicate that existing business
structures do not provide barriers
• ABS may not be what is required to develop
innovation and modernization
• Concerns over impact on smaller communities
• Need to avoid conflicts and protect
• Too early (or too risky) to look to other
jurisdictions

30. Response by OTLA
• not enough empirical evidence to justify ABS
– Technology can advance without ABS
• Private capital will choose most profitable
areas
– Particular concern over personal injury
• ABS may enhance fraud concerns (inability to regulate)
• Slater & Gordon in Australia
• non‐lawyer ownership may actually hurt A2J

31. • Deficiency in Semple hypothesis:

32. Are there Other ABS Options?
• BCE Inc v 1976 Debentureholders, 2008 SCC 69 (CanLII),
[2008] 3 SCR 560
– Duty of directors to the corporation, not necessarily the
shareholders
• Why not have a corporate duty to the legal system?
– Corporations are ultimately a fictitious creation of statute
• Statute can dictate what the goals of a corporation truly are
– But is the “profit” benefiting the corporation, or
benefitting the public?

33. What Roles May Exist for You?
• Susskind in Chapter 11 of Tomorrow’s Lawyers:
•legal knowledge engineer
•legal technologist
•legal hybrid
•legal process analyst
•legal project manager
•online dispute resolution (ODR) practitioner
•legal management consultant
•legal risk manager
•Can ABS help train this type of specialization?

34. Questions/Discussion
• Contact:
– @OmarHaRedeye
– ca.linkedin.com/TorontoLawyer
– Omar@FleetStreetLaw.com
– https://www.facebook.com/TO.Lawyer