Making a List and Checking it Twice: Barriers to Access to Justice

Here’s a link to a SLAW post by Manitoba lawyer Karen Dyck:

http://www.slaw.ca/2016/03/23/making-a-list-barriers-to-access-to-justice/

In this blog post, the writer presents an itemized list of “barriers that stand between ordinary people with legal problems and their effective access to justice,” but acknowledges that the list is necessarily incomplete (being based solely on her personal knowledge and experiences). She then invites readers to help complete the list by identifying, by way of the comments section, additional “ongoing barriers or obstacles to access to justice” facing those we serve—and those we don’t.

Taking her up on that offer, I can think of a few additional barriers:

  • Cultural barriers between the person needing access and the service provider (for example, lack—or perceived lack—of gender sensitivity or understanding of different indigenous cultures on the part of the service provider)
  • Depression or other mental illness impacting the ability of the person needing access to justice services
  • Mistrust of authority generally (Ms. Dyck mentions a mistrust of lawyers, but I think a broader mistrust of the legal system is worth separate mention)
  • Conflict avoidance
  • A lack of available alternate legal problem-solving mechanisms (such as mediation, etc.) more appropriate for some people and situations
  • The power imbalance between parties creating a sense of fear or hopelessness
  • Child care and income-earning responsibilities effectively eliminating the amount of free time some have to invest in finding and accessing legal services
  • The transportation, child care, and lost earning costs of accessing legal services

I would invite our readers to contribute their ideas to this list as well, and to take it one step further:

  • Identify one thing you can do, right now, to help dismantle one of these barriers to access to justice!

 For my part, I’m going to start up a conversation with our intake staff to make sure we offer bus tickets (which we have available, in small quantities) and telephone appointments to anyone who calls us seeking free legal advice but hesitates to book an in-person appointment at our downtown office.

 

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Increasing Access to Justice with Alternative Fee Structures

Individuals who find themselves unable to afford legal services may find assistance in the form of pro bono legal services or online self-help resources. While these are important ways that the legal community is improving access to justice, they are by no means a comprehensive solution. Online self-help resources may have limited effectiveness for those who lack literacy skills or access to technology (see previous Access Review post here), while pro bono legal services are usually only available in major urban centres, and to those who meet low-income thresholds that exclude the middle class.

This persistent gap in access to legal services raises the question of what lawyers can do to help improve access to justice. The current “billable hour model” has made legal representation unaffordable for low- and middle-income earners. John-Paul Boyd suggests that offering alternative fee structures can effectively increase access to justice while also maintaining the profitability of your law practice. One type of alternative fee structure that many lawyers are familiar with is the contingency fee arrangement, in which a lawyer’s payment is tied to success of the case. Other less common alternatives that are gaining attention in the legal profession are the “unbundling” of services, flat-rate fee structure and sliding scale fees.

“Unbundled” legal services, also known as limited scope services (often provided in accordance with carefully crafted limited-scope retainers), refer to the provision of limited legal services or representation for discrete parts of a legal matter without the expectation of full representation.[1] The lawyer may still charge her regular hourly rate, but because the client can choose ahead of time which specific tasks she wants to retain the lawyer to perform, the client has a better idea of what the final bill will be. Because it is much easier to estimate the cost of discrete tasks in advance (for example, a client could retain counsel to do three hours of legal research and provide a brief summary of the results of that research), the client has more control over the cost of legal services she purchases than if she had hired a lawyer on a full retainer. Some clients may want a lawyer to provide courtroom representation only (choosing to do all preliminary work themselves); others may want to pay for a legal opinion and research, but represent themselves.

Another alternative is the adoption of a flat-rate billing model, under which a lawyer sets fixed rates for the provision of identified legal services regardless of how much time that service ends up taking. This model allows clients to choose which services they want, and to know the entire cost ahead of time. Criminal defence lawyers regularly operate with flat-rate billing, but it seems much less common in other areas of law.

Lawyers can also adopt a sliding scale fee structure, in which clients are charged variably for legal fees based on ability to pay. Under this model, a lawyer indexes her hourly rate according to factors such as household size and income so that clients earning lower household incomes are charged a lower hourly rate for legal services. Many lawyers who use this fee structure also set income eligibility requirements to increase access to those who cannot afford full-price legal fees, but earn too much income to qualify for pro bono services. Here is an example of a sliding scale fee chart based on family size and family income:[2]

If you are a lawyer adopting an alternative fee structure, experts stress the importance of establishing clear expectations with your client, and carefully considering which services you will offer under that structure. Before adopting an alternative fee structure, lawyers should understand and be prepared to manage the potential risks involved. For excellent advice about how to successfully implement “unbundled” services and flat-rate fee structures, read these articles:

“DIY A2J 4: Unbundle Your Services, Reinvent Your Billing Model”

Alternative fee structures like unbundled services, flat-rate fees and sliding scale fees can make legal services affordable for clients by allowing them increased control over what services their lawyer provides, and advance knowledge of the cost of that lawyer’s work. They are, therefore, one way that lawyers can increase access to professional assistance—and justice—for those who can’t afford to retain counsel under a traditional billing model.

[1] Nancy Carruthers, “Ethically Speaking: The Ethics of Limited Scope Retainers” (2012) 10: 1 The Advisory 11.

[2] Source: Open Legal Services (http://openlegalservices.org/do-i-qualify/?)

 

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Language Barriers: Lost in Translation

Language Barriers: Lost in Translation

As a volunteer in family docket court, I frequently watch litigants struggle to communicate with judges, duty counsel, and even their own lawyers. If English or French is not someone’s first language, it is extremely difficult for them to communicate their point of view.  Language barriers hinder a person’s ability to receive helpful advice, read and complete court documents, and understand orders or judgments.  Even in a trial setting, litigants often go without interpreters when they are badly needed. There is a shortage of interpreters in Canada, meaning some individuals go without interpreters at all, while others rely on unqualified translators or friends or family.

Although section 14 of the Charter of Rights and Freedoms guarantees an accused person the right to understand the case against them, this right is easier stated than respected.  Unlike the situation in other provinces, interpreters are only provided by the courts in Alberta for criminal matters.[1] This means civil litigants must find their own interpreters, either on their own or through organizations like the Family Centre, Multicultural Health Brokers, the Edmonton Immigrant Services Association, or the Multicultural Family Law Facilitators Project.

According to Mike Sadava for The Lawyers Weekly, there is a shortage of qualified interpreters in Alberta.[2] As trends in immigration change – for example, there has been an influx of new immigrants from Somalia in recent years, and there’s about to be a marked increase in Arabic speakers living here – there may not be enough qualified interpreters to meet demand. He explains that with no trained translators or interpreters available, the courts are sometimes forced to rely on individuals who simply speak the appropriate language but are not trained interpreters.

That lack of formal training is a problem, because in order to be effective, interpreters need to be more than just fluent in the language at issue–they need to be trained in court procedure and legal jargon.

Interpreters must also decipher the meaning of a phrase or sentence, and not simply translate the words from one language to another.  Lawyer Joseph Fearon explains that simple errors like these can result in miscommunication:

“In my experience, many Chinese speakers use the term back to refer to their entire back
and neck. In a personal injury lawsuit where someone feels pain is important, the Judge
or jury could view someone who complains of “back” pain but has only visited their
doctor for neck problems as less credible.”[3]

Such miscommunications have resulted in mistrials, but when errors are not discovered, it means anyone who doesn’t speak fluent English or French suffers. Anthony Moustacalis, Toronto lawyer and president of the Criminal Lawyers’ Association in Ontario, indicates that miscommunications due to language barriers are frequent occurrences.[4]

So what can be done to improve access to interpreters’ services – and to improve the quality of those services?

Some lawyers and court interpreters believe interpreters are underpaid: it’s tough to attract adequate numbers of educated speakers in less commonly-spoken languages if interpreters’ salaries are not competitive. Other advocates argue that there aren’t enough training programs available for interpreters (like the ones at Seneca College in Toronto and the Vancouver School of Interpreting and Translating). Even where trained interpreters are available, many litigants simply can’t afford to pay them, and it isn’t acceptable to have a situation where justice is accessible only to those who can afford it.

One thing is clear: the issue of miscommunication is a complex problem without a simple solution. As Canada’s population of newcomers continues to increase (including immigrants, temporary foreign workers, and even undocumented workers), language barriers must be addressed in order to ensure access to justice.

Sources and Resources:  

“Coping with the Courtroom: Essential Tips and Information for Self-Represented Litigants”, online: Alberta Courts <http://www.albertacourts.ab.ca/fjs/selfhelp/Coping_With_the_Court room.pdf>

Fearon, Joseph, “Reasonable Doubt: Language Barriers and the Legal System” (2013), online: The Georgia Straight <http://www.straight.com/news/396331/reasonable-doubt-language-barriers-and-legal-system>

Kumar, Nayanika, “Multicultural Family Law Facilitators Project” (2014), online: Law Now: Relating Law to Life in Canada <http://www.lawnow.org/multicultural-family-law-facilitators-project/>

Sadava, Mike, “Misinterpretation: Crisis in Canadian Court Interpreting” (2014), online: Lawyers Weekly <http://www.lawyersweekly.ca/index.php?section=article&articleid=1306&gt; (online article no longer available)

Smalls, Peter, “Court Interpreter Shortage Nears Crisis” (2011), online: The Toronto Star <http://www.thestar.com/news/crime/2011/01/28/court_interpreter_shortage_nears_crisis.html>

[1] The province of British Columbia, for example, offers interpretation services at all levels of court in criminal matters, and in Provincial Court for any family law issue. In Ontario, interpreters are provided at Provincial Court if the litigant qualifies for a Court Services Division fee waiver.

[2] Nayanika Kumar, “Multicultural Family Law Facilitator’s Project”, Law Now: Relating to Law Life in Canada, 2014, online: <http://www.lawnow.org/multicultural-family-law-facilitators-project/>.

[3] Joseph Fearon, “Reasonable Doubt: Language Barriers and the Legal System”, The Georgia Straight, 2013, online: <http://www.straight.com/news/396331/reasonable-doubt-language-barriers-and-legal-system>.

[4] Peter Smalls, “Court Interpreter Shortage Near Crisis”, The Toronto Star, 2011, online: <http://www.thestar.com/news/crime/2011/01/28/court_interpreter_shortage_nears_crisis.html >

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Repost from LawPRO: Providing High Quality Service to Indigenous Clients

A recent issue of LawPro Magazine was devoted to considerations specific to working with Indigenous clients. This post introduces and summarizes Nora Rock’s article, “Providing high-quality service to indigenous clients,” available here.

The article provides introductory comments on how to offer high quality service to Indigenous clients and, while it focuses on individual capacities such as listening, communication, advocacy, and collaboration, it also contextualizes Indigenous client services a within a larger framework of Canadian-Indigenous relations. It incites responsibilities and opportunities for recognition and reconciliation that may extend beyond one’s established service experience.

Recognizing an Indigenous client, even if not disclosed, and being aware of any immediate assumptions about their identity or legal needs is the first step to effective service delivery. In Alberta, there are approximately 44 First Nations, as well as Metis, Inuit and non-status Peoples who live and often travel between the Treaty areas of 6, 7, and 8. Alberta is also unique for the eight Metis Settlements with their Metis Settlements Tribunal. All Indigenous groups have distinct histories that have resulted in specialized legal needs so it becomes essential to assess how qualified one is to meet these needs. There is extensive specialized legislation and procedures that apply to Indigenous people and issues, and, though it will depend on the area of law, some issues are best left to specialists.

The article explains “effective representation…requires an appropriate awareness of Indigenous experience to avoid re-victimizing clients…” Lawyer education on Indigenous experiences can enhance professional relationships and build trust between individuals and the justice system. This includes awareness of the history and legacy of colonial systems such as the Indian Residential Schools as well as Aboriginal treaty and Indigenous rights such as those articulated through the UN Declaration on the Rights of Indigenous Peoples (UNDRIP).

As in all legal practice, effective lawyers avoid making assumptions about a best course of action. They determine a client’s needs and educate on both substantive and procedural law as well as the range of possible remedies. The most important skill when working with Indigenous clients is to listen “with bigger ears” and ensure that they become informed decision-makers in their legal process.

There is growing recognition for opportunities to enliven Indigenous legal traditions in Canadian law. The Canadian Bar Association calls for representation of all Canadian legal traditions when making judicial appointments, it affirms s. 35 promises, and calls for recognition and compliance with UNDRIP. Lawyers’ responsibilities to enhance legal plurality may require that lawyers anticipate differences between Canadian and Indigenous legal strategies and gain consent on his or her course of action. While the Alberta Law Society does not have the equivalent, the Law Society of Upper Canada has amended their Rules of Professional Conduct to recognize the right of Indigenous clients to use Indigenous languages.[1]

Indigenous people occupy all ranges of socio-economic status, but, because Indigenous people experience low or no income at significantly higher rates than non-Indigenous, it is likely that poverty law practitioners in Alberta will meet and represent Indigenous clients. Lawyers who assume this responsibility can play a role in the larger process of reconciliation. This special opportunity can help clients exercise their rights, support family and community self-determination, and contribute to a more dynamic and representative legal system.

 

[1] See the Rules of Professional Conduct of the Law Society of Upper Canada, section 3.2-2A, available here.

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Repost from ABlawg: Status of Women Deputy Minister Visits the University of Calgary

This is a repost of University of Calgary Professor Jennifer Koshan’s recently published wishlist of matters for the new provincial Status of Women Ministry (together with the Ministry of Justice) to address.

http://ablawg.ca/2016/01/15/status-of-women-deputy-minister-visits-the-university-of-calgary-a-wish-list/

A suggestion of key interest to us is that the Alberta Human Rights Act “be amended to protect against discrimination on the basis of social condition or social disadvantage.” Social condition is a term which, while lacking a universally shared and understood meaning, generally refers to a person’s social position or class and, where added to human rights legislation as a prohibited ground, is intended to address the social stigma associated with being poor. The Ontario Human Rights Commission has published a good primer on the issue of adding social condition to human rights legislation, available here.

All of the clients we serve at the ECLC are poor, and a high percentage of them experience discrimination because of their poverty. Being poor usually means more than just lacking economic resources–it means having inadequate social and cultural resources as well, and it often means being denied the ability to enforce one’s basic human and legal rights.

Extending human rights protection (for example, in residential tenancies, employment, or services customarily available to the public) to those of us experiencing discrimination because of our social condition would send a strong message—to everyone—that we are all equally valuable, regardless of our social position, class, English grammar, what we do for a living, or where we sleep at night.

It would be interesting to hear the position of the Alberta Human Rights Commission on this proposed amendment, and to know what the Justice and Status of Women Ministers think about it.

 

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An Update on the Jurisdiction of Masters in the Court of Queen’s Bench to Set Aside Orders of the RTDRS

Jonnette Watson Hamilton recently posted an article on ABlawg.ca called “Setting Aside Residential Tenancy Dispute Resolution Service Orders for Problems with Service: It Can’t Be Done,” in which she discusses a recent written decision by Master Farrington (in Calgary) in  Abougouche v Miller, 2015 ABQB 724 (“Abougouche”).

Watson Hamilton’s article and the case are interesting, particularly in light of Master Schlosser’s decision (in Edmonton) in Boardwalk General Partnership v Montour, 2015 ABQB 242 (“Montour”), which was discussed by Anna Lund in her article on this site.

Both cases deal with the jurisdiction of the Court of Queen’s Bench to set aside or otherwise alter orders of the Residential Tenancy Dispute Resolution Service (“RTDRS”) in applications not constituting formal appeals of the RTDRS orders.  Whereas Master Schlosser, in Montour, implied that the Court could set aside an RTDRS order on the basis of Rule 9.15 of the Alberta Rules of Court (which allows the Court to set aside a previous order where a party did not attend by mistake or accident), Master Farrington, in Abougouche, rejected this argument, ruling that Rule 9.15 is intended to apply to decisions of Queen’s Bench Masters or Justices, and not RTDRS orders.

While neither decision is binding on any future applications, Master Farrington’s decision in Abougouche presents a significant obstacle for those (often low-income tenants) applying to set aside or otherwise alter RTDRS Orders (without appealing) because they did not attend the RTDRS hearings.  However, Master Farrington highlights the conundrum that exists because of a gap in the RTDRS regulation (Residential Tenancy Dispute Resolution Service Regulation, AR 98/2006): there is no mechanism at the RTDRS level to challenge service or apply for a rehearing when a party has not attended a hearing, and the rules to appeal RTDRS decisions to the Court of Queen’s Bench, which do not allow new evidence to be introduced and are procedurally and financially onerous, do not provide an effective remedy in this situation.

Master Farrington and Master Schlosser appear to agree that they do have jurisdiction to make orders affecting the enforcement of RTDRS orders (which must be filed at the Court of Queen’s Bench, and are enforced according to the Rules of Court), including staying enforcement.  While this is an important remedy in some limited circumstances, it still leaves massive gaps.

It has come to my attention that Master Schlosser recently heard and made a ruling in another case with similar facts, and announced his intention to issue written reasons.  We at The Access Review await this decision to see if further clarification is provided on this issue, and will provide an update as warranted.  In the meantime, it appears that tenants looking to use Rule 9.15 to set aside RTDRS orders because they did not attend their RTDRS hearings may not get the relief they are seeking in Masters’ Chambers.

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Repost from Richard Zorza’s Access to Justice Blog: New York Making Big Progress on Multi-Lingual Court Orders

Please find below a link to a post from accesstojustice.net, authored by internationally-renowned access to justice expert Richard Zorza. In it, Mr. Zorza, who coordinates the (American) national Self Represented Litigation Network, comments on the compliance and efficiency benefits of multi-lingual court orders. He references a technology-based translation process already in use in New York, through which court orders are immediately translated into Spanish on demand, and will soon also be available in Chinese and Russian. With the number of foreign workers and recent immigrants living in Alberta but lacking English fluency, such an initiative could have big benefits here too.

http://accesstojustice.net/2015/10/13/new-york-making-big-progress-on-multi-lingual-court-orders/

 

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