Review of Michael Trebilcock, Paradoxes of Professional Regulation: In Search of Regulatory Principles. Canadian Business Law Journal, Vol. 67, page 247.
Draft Online: https://ssrn.com/abstract=4640225
Access to Justice
Systemic Racism, Clients, and the Law Societies
Slaw.ca, December 2023
Systemic racism is a reality in Canada. At many junctures in life, a person’s access to opportunities and fair treatment will be affected by their race, skin colour, or indigineity. The legal profession, in order to do its essential work in our society, must recognize and confront systemic racism.
So far, most formal efforts to do so have focused on racism’s effect on lawyers, law students, and others who work in the law. (See for example the action plans from the law societies of BC and Ontario, as well as Alberta’s “My Experience” project). These are worthy and very important efforts. But something might be missing: attention to the effects of systemic racism on actual and would-be clients.
Continue readingAdjudicative Tribunals: In Need of Friends in High Places
Slaw.ca Legal Access to Justice Column, April 19 2023.
Found online at: https://www.slaw.ca/2023/04/19/adjudicative-tribunals-in-need-of-friends-in-high-places/
Each year, over 100,000 Ontarians seek justice from Tribunals Ontario. This group of people —the size of a small city— includes tenants, landlords, motor vehicle accident victims seeking insurance benefits, people denied disability benefits, and those who believe that their fundamental human rights have been infringed. This group of 100,000 is significantly larger than the number of plaintiffs who start civil lawsuits in the Superior Court of Justice each year. The numbers are similar in other provinces. For most civil rights, tribunals are Canadians’ first and only opportunity to seek authoritative dispute-resolution and enforcement.
Continue readingBetter Access to Better Justice: The Potential of Procedural Reform
Canadian Bar Review, Vol 100, No. 2
Improving access to justice is often identified as a goal of reforms to legal procedure. What does access to justice mean in this context? This article proposes that “better access” and “better justice” should be understood as distinct but overlapping goals. Access improves when procedural costs confronting litigants are reduced. Justice has three qualities—substantive justice, procedural justice, and public justice—which legal procedure can produce to a greater or lesser degree. Although access and justice are sometimes in tension as goals for procedural reform, they are also harmonious. Better access to better justice is a worthy goal for procedural reformers. Welfarism is introduced in the final part of the article, as a way to focus access to justice reforms and make the necessary tradeoffs. This article’s argument is illustrated by three procedural reform trends—mandatory mediation, smaller-dollar procedure, and inquisitoriality.
Full text: https://cbr.cba.org/index.php/cbr/article/view/4772
Civil Procedure and Practice in Ontario, Vol. 2
I’m delighted to announce that the updated 2022 edition of Civil Procedure & Practice in Ontario is now live at https://www.canlii.org/en/commentary/81787.
We are also grateful to our publishers CanLII, and in particular the team of Sarah Sutherland, Alex Tsang, and Alicia Lazear. Assistant Editor Sheldon Leung and our Windsor Law editorial team (introduced below) were essential to the success of this project.
Online and In-Person Hearings: The Best of Both Worlds
Slaw.ca Civil Procedure Column, June 9, 2022
Found online at: https://www.slaw.ca/2022/06/09/online-and-in-person-hearings-the-best-of-both-worlds/
For a while during the pandemic, online hearings were the only option for courts and tribunals. Justice was done on Zoom, or else it wasn’t done at all.
Now, as we emerge from the age of Covid (knock on wood!), online vs. in-person is a recurring controversy across Ontario’s justice sector. After the Superior Court of Justice ordered most contested family law matters to return to court, a group of family bar lawyers organized in defence of the online option. By contrast, the Landlord and Tenant Board is insisting on fully online practice, while the Advocacy Centre for Tenants Ontario states that “going digital has been a failure” and calls for a return to in-person hearings. The online vs in-person controversy is also litigated on a case-by-case basis. For many civil trials, in the absence of party consent an expensive procedural motion may be necessary to resolve the question of online vs. in-person.
Continue readingJustice at Tribunals: At the Government’s Whim
Slaw.ca Access to Justice Column, April 7, 2022
Found online at: https://www.slaw.ca/2022/04/07/justice-in-tribunals-at-the-governments-whim/
Suppose that “JM” is a Canadian person, who believes that their legal rights have been infringed. The problem might have arisen at work, at home, with a corporation, or with some part of the government. JM has tried to resolve the matter privately with the other side, but got nowhere. Next, JM did some online research and perhaps spoke to a lawyer. It turns out there is a public body that’s supposed to make decisions, and uphold rights, in disputes like JM’s.
Continue readingJustice in Your Neighbourhood?
Slaw.ca Access to Justice Column, December 22, 2021
Found online at: http://www.slaw.ca/2021/12/22/justice-in-your-neighbourhood/
I live in Etobicoke, Toronto’s western suburb. We used to have our own courts, right here in the west end. There were family and criminal courts at 40 East Mall, and a Landlord Tenant Board outpost on Dundas Street West. Just over the Humber River, in the original City of Toronto, there was a Small Claims Court on Keele Street (pictured above). People asserting civil rights, or facing criminal charges, could visit a courthouse in their own community.
Nowadays, there isn’t a single physical court or tribunal of any kind in Etobicoke.
Continue readingWhat’s Your Procedural Pet Peeve?
Slaw.ca Civil Procedure Column, August 13, 2021
Found online at: http://www.slaw.ca/2021/08/13/whats-your-procedural-pet-peeve/
Our justice system isn’t all bad, and in some ways it’s getting better. Some things in the system might have to be difficult and complicated, because life is complicated and so is the law. But there are also plenty of things that seem unnecessarily difficult and complicated. I’m talking about things that could be fixed without a lot of controversy or money, just by thinking carefully about how they affect the system’s users.
One that has always irritated me is Rule 4 (“Court Documents”) in Ontario’s Rules of Civil Procedure. It lays out all of the technical requirements for documents used in Ontario actions and applications. (I dare you to read it through.)
Continue readingBilling without Bilking: Regulating Time-Based Legal Fees
(2020) Forthcoming, Dalhousie Law Journal. 28 pages.
Online: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3616319
The British Invasion: Legal Services Regulation Edition
Slaw.ca Legal Ethics Column, April 10, 2020.
Found online at: http://www.slaw.ca/2020/04/10/the-british-invasion-legal-services-regulation-edition/
Bringing British things across the pond is a hot Canadian trend. Prince Harry and Megan Markle are now our most famous immigrants. A Canada-U.K. free trade deal has apparently become a post-Brexit priority. And the Downton Abbey movie has raked in hundreds of millions of dollars from my parents and their friends.
While we’re at it, we should copy at least three aspects of legal services regulation as practiced in our erstwhile mother country. The U.K. has swept away many of the outdated and unnecessary restrictions on legal services that we still cling to. The payoff is better access to justice, without any apparent diminution in quality or ethics. Continue reading
Dispatches From the Front Lines of Canadian Legal Ethics
Slaw.ca Legal Ethics Column, December 16, 2019.
Found online at: http://www.slaw.ca/2019/12/16/dispatches-from-the-front-lines-of-canadian-legal-ethics/
On October 25 & 26, Windsor Law proudly hosted the 2019 conference of the Canadian Association for Legal Ethics. The presentations touched on many of the most important issues confronting the legal profession today. Check out the brief summaries below to stay up to date. Continue reading
Collegial Reputation and Peer Rankings: An Invisible Hand?
Slaw.ca Legal Ethics Column, January 31, 2019.
Found online at: http://www.slaw.ca/2019/01/31/collegial-reputation-and-peer-rankings-an-invisible-hand/
Suppose you have practiced law for many years in the same community. You are shown a list of other lawyers who do the same sort of work as you, in the same area. You probably have an opinion about most of the names on the list. Favourable or unfavourable impressions will have accumulated from your interactions with them on files, your observations of their work, and other colleagues’ comments to you about them.
Of course, they also have opinions about you. Your collegial reputation is the sum of the opinions about you held by others in your community of practice.
Collegial reputations are not necessarily fair or well- deserved. They may reflect prejudice or irrelevant factors, rather than the real qualities of someone’s work. Nevertheless, within professions like law, colleagues are relatively well placed to evaluate the many aspects of value that are invisible to clients. Continue reading
Why We Can’t Ban Legal Advertising
Slaw.ca Legal Ethics Column, December 14, 2018.
Found online at: http://www.slaw.ca/2018/12/14/why-we-cant-ban-legal-advertising/
Whenever I see billboard or TV advertising for law firms, I worry. I don’t worry about the “dignity” of the legal profession; I worry about the people at whom these ads are targeted. Choosing the best possible firm can make a major difference in the long-term happiness and financial security of a person with a serious personal plight legal need (e.g. a personal injury, a divorce, or a criminal charge). Mass media ads almost never provide any useful information that would help someone in this position make an intelligent choice. The airbrushed photos, empty boasts, and gleaming boardrooms in these ads are meant to promote emotional resonance and brand recognition, not reasoned decision-making.
Advertising for normal goods and services — which most consumers can understand and evaluate — may foster healthy competition, which in turn improves quality and reduces price. By contrast, mass market advertising for opaque professional services such as law is more likely to promote unhealthy and consumer-hostile competition. It encourages a struggle between firms to achieve name recognition by deploying expensive campaigns, which are ultimately paid for by clients through higher fees. Clients are better off when they choose law firms by relying on knowledgeable and unbiased referrals, or comparing objective information about the available options. In such a market, financial incentives are aligned with professionalism: firms’ profits will depend on the real value that they offer to clients, not on their marketing budgets.
With these thoughts in mind, I started writing this column to argue that most or all mass-market law firm advertising should simply be banned — as it was before roughly 1980. However in researching this piece, I’ve come across some compelling reasons to think otherwise. Continue reading
Bridges over the Chasm: Licensing Design and the Abolition of Articling
Slaw.ca Legal Ethics Column, July 27, 2018.
Found online at: http://www.slaw.ca/2018/07/27/bridges-over-the-chasm-licensing-design-and-the-abolition-of-articling/
What should people who want to practice law have to do before they are licensed? This perennial debate has bloomed once again. The Law Society of Ontario (LSO) is seeking feedback on its Options for Lawyer Licensing consultation paper (Slaw summary here). Two of the LSO’s four options would abolish articling. Candidates would instead have to pass exams covering both legal skills and substantive knowledge. There would also be a law practice program, either required for all candidates (LSO’s Option 4) or only for those practicing in smaller firms (Option 3).
Thinking of licensing in terms of footbridges over a chasm may help clarify what is at stake, and why the LSO should in fact abolish the articling requirement. Continue reading