Summary of Contents
1. GENERAL INFORMATION
Canada is a federation consisting of ten provinces and three territories extending across the top of North America from the Atlantic Ocean to the Pacific Ocean and northward into the Arctic Ocean. Canada’s southern border with the United States, stretching to almost 9000 Kilometres, is the world’s longest bi-national land border.
1.1. Form of Government
Canada is a parliamentary democracy and a constitutional monarchy in the Westminster tradition, with a monarch and a prime minister who serves as the chair of the Cabinet and head of government. Each of Canada’s ten provinces and three territories has a similar governmental structure. The country is a realm within the Commonwealth of Nations and a member of the Francophonie. Canada is a member of several major international and intergovernmental institutions or groupings including the United Nations, NATO, OECD, the G7, the Group of Ten, the G20, and many regional (CUSMA, CPTPP, CETA) and bilateral free trade agreements.
1.2. Demographics, Ethnic Groups, Languages and Religions
Canada is the world’s second-largest country by total area but as a whole is sparsely populated by 37.59 million people. The majority of its land area is dominated by forest and tundra. Its population is highly urbanized, with over 80% of its inhabitants concentrated in large and medium-sized cities, and 70% residing within 100 kilometres of the southern border.
Canadian society is highly diverse. Indigenous peoples have inhabited what is now Canada for thousands of years before European colonization. Beginning in the 16th century, British and French expeditions explored and later began settling on this land giving Canada its bilingual (English and French) and bi-juridical (civil law and common law) foundation. At the federal level all government services and federally-regulated companies must make their public services available in both official languages. Canada has begun to acknowledge and make amends for its colonialism through constitutional recognition of Indigenous rights, truth and reconciliation initiatives, the fostering of various forms of Indigenous self-government, adoption of some Indigenous legal practices, and broader decolonialization efforts. Much work remains to be done on this front.
Canada is also a highly multicultural society, the product of large-scale immigration over several centuries, and is home to people from many countries representing a vast array of linguistic, ethnic and religious groups. There is no official religion.
1.3. Gross Domestic Product (GDP)
The economy of Canada is a highly developed market economy. It is the 10th largest economy by nominal and 16th by purchasing power parity. The IMF reports Canada’s GDP in trillion US dollars for the last ten years.
Chart 01. Canada GDP for the last ten years (2008-2018)
1.4. Human Development Indicators
According to the UN Human Rights Development Index, Canada is rated as having very high development and is ranked 12th in the world in 2018.
Chart 02. Human Development Indicators
|Human Development Index 2017||Human Development Index 2016||Life Expectancy
|Mean Years of Schooling||Gross National Income per Capita|
|12th – 0.926||12th||82.5||16.4||13.3||$43,433|
1.5. Canadians Living in Poverty
The most recent national statistics report that in 2017, 9.5% of the population lived below the official poverty line (down from 10.6% in 2016 and 12.1% in 2015).
2. LEGAL SYSTEM
2.1. Hybrid Legal System
The Canadian justice system is unique in the world. Two official languages (English and French) and two legal traditions (common law and civil law) co-exist within our system of justice. As a legacy of the colonization of North America by France and Great Britain, two legal traditions are in effect in Canada – civil law in Québec and common law in all other provinces and territories. The co-existence of these two systems has important implications for federal lawmaking and statutory interpretation.
In addition, as part of the renewal of the relationship between Canadian governments and Indigenous peoples, initiatives are being taken to reflect Indigenous values within the justice system, to assist Indigenous people to assume greater responsibility for the administration of justice in their communities, and to decrease the rate of victimization, crime and incarceration among Indigenous people in communities through community-based justice programs.
The Canadian constitution provides important parameters to the legal system by setting out the division of legislative powers between the federal and provincial/territorial levels of government and by enshrining the constitutional protection of rights and freedoms. The Canadian Charter of Rights and Freedoms (“the Charter”) enacted in 1982 is a singular feature of the legal system giving the courts the responsibility to review legislation, regulations and other governmental actions for their consistency with the constitutional protections contained therein.
Canada is a secular society and as a matter of law and policy religion is considered to be a private matter. The Charter provides constitutional protection to the freedom of conscience and religion (ss. 2(a)), among other rights and freedoms and further protections are provided by federal, provincial and territorial human rights legislation. Religious law is not enforceable in the Canadian legal system. For a short period of time the province of Ontario provided for the use of religious law in the arbitration of family law matters where both parties consented but this law was repealed. At present, nothing in Ontario law (or other Canadian jurisdictions) prevents people from turning to a religious official or someone knowledgeable in the principles of their religion to help them resolve their family dispute. However, if that person made a decision based on religious principles, the decision would not be a valid family arbitration award under the law.
2.2. Federal Justice System
The Canadian constitution provides for shared federal and provincial/territorial responsibility for the justice system. Provincial governments are granted the general power for the administration of justice in each province. The federal government has responsibility for, among other areas, criminal law, marriage and divorce law, and for the establishment of courts of plenary jurisdiction.
Canada has four levels of court and each type of court has its own jurisdiction, which means that it has the authority to decide specific types of cases.
- Provincial and territorial (lower) courts: These courts handle most cases that come into the system. They are established by provincial and territorial governments.
- Provincial and territorial superior courts: These are courts of plenary, or complete, jurisdiction established under section 96 of the Constitution Act, 1867. They deal with more serious crimes and civil matters and also hear many appeals from provincial and territorial courts. The Federal Court is on the same level, but is responsible for deciding civil matters assigned to it by statute, such as immigration and patents. The Federal Tax Court is also a federal superior court which deals with matters involving companies or individuals and tax issues with the Government of Canada
- Provincial and territorial courts of appeal and the Federal Court of Appeal.
- The Supreme Court of Canada, which is the final court of appeal for Canada.
2.3. Outline of Canada’s Court System
Chart 03. Canada’s Court System
A. Provincial/Territorial Courts
Each province and territory has a provincial/territorial court, which hears cases involving either federal or provincial/territorial laws. In Nunavut, the Nunavut Court of Justice, which is Canada’s only single-level trial court, combines the power of the superior trial court and the territorial court so that the same judge can hear all cases that arise in the territory.
Provincial/territorial courts deal with:
- the majority of criminal offences, except the most serious ones;
- family law matters (e.g., child support, child protection, adoption, but not divorce);
- young persons from 12 to 17 years old in conflict with the law;
- traffic and bylaw violations;
- provincial/territorial regulatory offences;
- claims involving money, up to a certain amount (set by the province or territory);
- small claims in most jurisdictions (civil cases that resolve private disputes involving limited sums of money).
Some courts at this level are specialized, that is dedicated to particular types of offences or groups of offenders. One example is the Drug Treatment Court. The object of these courts is to address the needs of non-violent offenders who are charged with criminal offences that were motivated by their addiction. Those who qualify are offered judicial supervision and treatment for their addiction, with the help of community support services.
Youth courts handle cases for young people 12 to 17 years old who are charged with an offence under youth justice laws. Youth courts provide protections appropriate to the age of the accused, including protecting his or her privacy. Any court at either the provincial/territorial or superior court level can be designated a youth court.
All provinces and territories have established Domestic Violence Courts so that the justice system can improve its response to incidents of spousal abuse, provide better support to victims, and make offenders more accountable. These courts do this by:
- decreasing court processing time;
- increasing prosecution rates;
- providing a focal point for programs and services for victims and offenders; and
- allowing police, Crown prosecutors, and, in some cases, the judiciary to specialize in domestic violence matters.
The BC Provincial Courts have taken a leadership role in developing First Nations Courts in collaboration with local First Nations, the community at large, the Legal Services Society, Crown counsel, defence lawyers, Community Corrections, police, and groups like the Native Courtworker and Counselling Association of BC. Each court is designed to meet the unique needs of the community it serves. These courts do not conduct trials. They are sentencing courts that provide support and healing to assist in rehabilitation and to reduce recidivism while also acknowledging and repairing the harm done to victims and the community. Their focus is collaborative and holistic, recognizing the unique circumstances of Indigenous offenders within the framework of existing laws. Other jurisdictions have developed similar initiatives.
B. Provincial/Territorial Superior Courts
Each province and territory has superior courts, which are courts of “inherent jurisdiction”. This means that they can hear cases in any area except when a statute or rule limits that authority. The superior courts try the most serious criminal and civil cases. These include divorce cases and cases that involve large amounts of money (the minimum is set by the province or territory in question). The jurisdiction of superior courts originally came from the first courts in England, whose authority over government actions was based on Magna Carta. Proceedings in superior courts are thus a continuation of a court process that dates back to the beginnings of the common law system.
The superior courts also act as a court of first appeal for the provincial and territorial courts that the provinces and territories maintain. Although the provinces and territories administer superior courts, the federal government appoints and pays the judges.
Although there are permanent court houses and judicial centres in all of Canada’s provinces and territories, Canada’s population is scattered widely across huge expanses of land, particularly in the North, and it may be difficult for individuals to travel to a court house to have their matter heard. In response, courts often travel “on circuit” to small or isolated areas.
C. Family Law Courts
In most provinces and territories, the superior court has special divisions, such as the family division. Some superior courts have established specialized family courts to deal with specific family law matters, including divorce and property claims.
Several provinces (Manitoba, New Brunswick, Newfoundland and Labrador, Nova Scotia, Ontario, Prince Edward Island and Saskatchewan) use unified family courts. This allows a single court to deal with all aspects of family law, using specialized superior court judges and services. These courts encourage constructive, non-adversarial techniques to resolve issues, and provide access to support services through community organizations. These services typically include such programs as parent-education sessions, mediation, and counselling.
D. Provincial/Territorial Courts of Appeal
Each province and territory also has a court of appeal. These courts hear appeals from the decisions of the superior courts and the provincial/territorial courts. These can include a wide range of appeals, including commercial disputes, property disputes, negligence claims, family disputes, bankruptcies, and corporate reorganizations. Appeals are usually heard by a panel of three judges. The courts of appeal also hear constitutional questions that may be raised in appeals involving individuals, governments, or governmental agencies.
E. Administrative Tribunals
Administrative tribunals are independent, specialized governmental agencies established under federal or provincial legislation to implement legislative policy. Administrative tribunals in Canada make decisions on behalf of federal and provincial governments when it is impractical or inappropriate for the government to do so itself. Tribunals are set up by federal or provincial legislation, known as “empowering legislation”. Tribunals are commonly known as commissions or boards, and make decisions about a wide variety of issues, including disputes between people or between people and the government. Tribunals may also perform regulatory or licensing functions. Tribunal decisions may be reviewed by the courts. Because they engage in fact-finding and have the power to impact personal rights, tribunals are often seen as “quasi-judicial”.
Administrative tribunals perform a wide range of functions, including research and recommendation (e.g., law reform commissions), rule-making and policy development (e.g., the Canadian Radio-Television and Telecommunications Commission and provincial securities commissions), grant allocation (e.g., the Canada Council for the Arts and regional development agencies), adjudication (e.g., labour relations boards, landlord and tenant boards, immigration and refugee boards, municipal boards and human rights tribunals) and standard setting (e.g., environmental assessment boards, workers’ compensation boards and health and safety commissions). In addition to such permanent agencies, there are ad hoc administrative tribunals, such as arbitrators and inquiry commissions, mandated to deal with a specific subject matter.
Many administrative tribunals have a hearing process to determine conflicting rights and obligations or to assign rights or entitlements between competing parties. If a tribunal makes adjudicative decisions based on testimony and evidence, like a normal court, it will tend to function more like a court. Procedure is generally less formal than in court and the formal rules of evidence do not usually apply; however, decisions must be based only on cogent evidence. The decisions of administrative tribunals may be final and not subject to appeal, depending on the provisions and intent of the tribunal’s enabling legislation. Even where no right of appeal is provided or when a statute specifically forbids it, it is a principle of the Canadian Constitution that superior courts have jurisdiction to review any administrative tribunal’s function. This is called judicial review, and usually does not focus on whether the tribunal made the right decision, but whether it made the decision reasonably or correctly and within the scope of its empowering legislation.
For a further discussion of Canada’s system of justice, particularly in the context of promoting efficiency and access to justice, see further section 6.3 below.
2.4. The Structure of the Canadian Legal Profession
Every lawyer in Canada and notary in Québec is required by law to be a member of a law society and to be governed by its rules. Canada’s 14 provincial and territorial law societies govern over 125,000 lawyers, Québec’s 3,800 notaries and Ontario’s 10,500 independent paralegals in the public interest. Each law society is established by provincial and territorial law and has a mandate to ensure that people in its jurisdiction are served by legal professionals who meet high standards of competence and professional conduct.
A central feature of Canada’s legal system is that the public has the right to obtain legal advice and be represented by a legal professional that is independent of the government. For that reason, Canada’s laws provide for the self-regulation of the legal profession.
For a further discussion of Canada’s legal profession, see section 8 below. One of the key strengths of Canada’s legal system is the clear distinction between the function of law societies and that of voluntary associations of members of the profession. The function of law societies is to regulate the legal profession in the public interest. It is the function of voluntary associations of members of the profession, such as the Canadian Bar Association, to speak for and represent the interests of their members.
To fulfill their public interest mandate, law societies set the standards for admission to the profession and the conduct of members in their province or territory. They audit and monitor the use of trust funds held by members of the profession. They also investigate complaints and discipline members of the profession who violate the required standards of conduct.
The provincial and territorial law societies coordinate their work on a national basis through the Federation of Law Societies of Canada (FLSC). As further discussed in section 8 below, the FLSC has undertaken national initiatives to break down barriers between the jurisdictions within Canada, including by breaking down barriers to mobility and facilitating the transfer of lawyers within Canada.
There is no formal distinction between barristers and solicitors in Canada. At present, lawyers are subject to restrictions on how they structure their practices. Only licensed lawyers in sole practice or in firms owned and controlled by licensed legal professionals may provide legal services. These practices may only provide legal services and services that support or supplement legal services. These same restrictions apply to licensed paralegals in Ontario. Law societies currently permit lawyers to provide legal services through the following business structures: sole proprietorship, partnership, limited liability partnership, professional corporation, and multidisciplinary practice. Several law societies have investigated or are investigating the potential of alternative/expanded business structures.
2.4.1. Number of Licensed Practicing Lawyers
According to statistics gathered by the FLSC, there were 104,497 practising lawyers (and notaries in Québec) in 2017, of which 47,155 were women.
2.4.2. Affordability of Legal Fees
Many studies have shown that Canadians do not or cannot access lawyers to assist them to resolve legal matters. The main reason given is affordability as there is a large gap between limited legal aid services available to low income individuals and those who can afford to pay full legal fees, particularly for litigation services. Law societies and bar associations have taken steps to address affordability issues through developments such as limited scope services and advocating for greater availability of legal insurance.
2.4.3. Legal Representation is Not Mandatory
Legal representation is not mandatory in Canada.
2.4.4. Representation by Paralegals
Traditionally, paralegals have not been allowed to provide legal representation services. More recently, some Canadian law societies have begun to expand the scope of practice of paralegals. In Ontario, where the law society licenses and regulates paralegals, they can offer legal services in defined areas such as small claims court, traffic court, tribunal work and certain criminal matters. In British Columbia, for example, lawyers can supervise “designated paralegals” and delegate to them some representation services in tribunals or family law mediations. In such cases, the supervising lawyer is responsible for the work carried out by the designated paralegal. Manitoba’s Law Society requested a change to the legislation to create new categories of service providers including technicians or paralegals, non-profits and limited licensees. Other jurisdictions have policies and initiatives with respect to paralegals.
2.4.5. Is There a Shortage of Lawyers in Canada?
There is no consensus on the issue of whether there is a shortage of lawyers in Canada. The number of lawyers continues to increase, although statistics in the country’s most populous province, Ontario, show that the per capita number of lawyers in private practice is shrinking. It is clear that many individuals do not access lawyers when attempting to resolve disputes for which a legal solution exists. Many Canadians rely on non-legal resources to address a range of legal problems and disputes. As noted above, affordability of legal fees, particularly for contentious matters is the main reported barrier.
While overall there is no clear shortage of lawyers, geographic access to lawyers is uneven across Canada and individuals have experienced difficulty in some non-urban areas. Recent concerns about the geography of access to justice in Canada have focused on the dwindling number of lawyers in rural and remote areas, raising anxieties about the profession’s inability to meet current and future demands for localized legal services. These concerns have motivated a range of policy responses that aim to improve the education, training, recruitment and retention of practitioners in under-served areas. These initiatives include opening two law schools at universities outside of main urban areas (at Thompson Rivers University in Kamloops, British Columbia and Lakehead University in Thunder Bay, Ontario). Another example is the Rural Education and Access to Lawyers initiative, a joint initiative of the Law Foundation of BC, the Law Society of BC, and the Canadian Bar Association, BC Branch, which places law students in rural law firms for summer work experience and facilitates the placement of articled students in communities with less than 100,000 people and a greater than 500 person-to-lawyer ratio.
2.4.6. Judicial Careers
Judicial independence is a cornerstone of the Canadian judicial system. That is why, under the Constitution, the judiciary is separate from and independent of the other two branches of government, the executive and legislature. Judicial independence guarantees that judges will be able to make decisions free of influence and based solely on fact and law.
The principle of judicial independence has three components: security of tenure, financial security, and administrative independence.
Security of tenure: Once appointed, a judge is eligible to serve on the bench until retirement (age 75 for federally appointed judges, age 70 in some provincial/territorial jurisdictions). Judges can be removed by a joint address of Parliament or a provincial legislature, only after an independent and impartial investigation shows that there is good reason.
Financial security: Judges must be guaranteed sufficient compensation (including salary and pension) so they are not subject to pressure for financial considerations. In Canada, governments cannot change judges’ salaries or benefits without first receiving the recommendations of an independent compensation commission.
Administrative independence: No one can interfere with how courts manage the legal process and exercise their judicial functions. For example, only the chief justice can choose how cases are assigned to the judges of his or her court.
Several institutions have been established to support judicial independence: these include the Canadian Judicial Council, the Commissioner for Federal Judicial Affairs, the National Judicial Institute and the Courts Administration Service. They help keep the government and the judiciary separate in areas like discipline, pay and benefits, and continuing education for judges.
Judges are appointed from the experienced members of the legal profession. The federal government appoints judges to the federal courts, the superior courts of the provinces/territories, and the Supreme Court of Canada. All federally appointed judges are appointed by the Governor in Council. This consists of the Governor General acting on the advice of the Prime Minister for judges of the Supreme Court of Canada and chief and associate chief justices in the provinces; and on the advice of the Minister of Justice for all other superior court judges.
Lawyers must apply for appointment through a fairly detailed application process. The Commissioner for Federal Judicial Affairs administers the advisory committees, representing each province and territory, which assess the qualifications of the lawyers who apply for federal judicial appointments. For example, a candidate for a federal appointment must have been a lawyer for at least ten years to be appointed and must be qualified to practise law in the jurisdiction in question. The provincial and territorial governments appoint judges to provincial and territorial courts. There are similar eligibility requirements for provincial and territorial appointments and a similar appointment process is followed.
Supernumerary judicial positions are also widely used in Canadian superior courts. A supernumerary judge is a judge who has the option to retire, but who instead chooses to sit half of the time of a full-time judge. Generally, when a judge becomes supernumerary a vacancy is created, and a new appointment is made to that Court. In Canada, a judge may request supernumerary status when they have continued in judicial office for at least 15 years and their combined age and number of years in judicial office is not less than 80 or they have attained the age of 70 years and have continued in judicial office for at least 10 years. Supernumerary judges account for almost 20 per cent of all active federally appointed judges.
Chart 04. Number of Judges in Canadian Superior Courts
Efforts have been taken to make Canada’s system of judges more diverse, with more women, visible minorities, LBGT and Indigenous people on the bench. Much work remains to be done however, and the number of Indigenous judges also remains low compared to other demographic groups. 2.4.8. Prosecutorial Careers Although the enactment of criminal law is under federal jurisdiction in Canada, the prosecution of most Criminal Code offences – outside of the Yukon Territory, the Northwest Territories, and Nunavut – is the responsibility of the provincial Attorneys General and their lawful deputies by virtue of the administration of justice powers found in Section 92 of the Constitution Act, 1867 and the “interpretation” section of the Criminal Code. As a result, the vast majority of crown attorneys (also known as crown prosecutors or crown counsel in different provinces) are employed by Canada’s ten provinces. Crown counsel are public servants but operate independently of government and are not subject to election. They are represented by professional associations. Similarly, the Public Prosecution Service of Canada (PPSC) is a national, independent and accountable prosecuting authority whose main objective is to prosecute federal offences and provides legal advice and assistance to law enforcement. The Canadian Association of Crown Counsel is the national association which represents the collective interests of Crown prosecutors and Crown lawyers. It contributes to helping governments and the public understand issues involving Crown prosecutors in the criminal justice system and Crown civil lawyers in the civil justice system. It addresses issues of Crown lawyers concerning conditions of employment and working conditions and promotes and encourages the professional development of Crown Counsels. Members include representatives of associations representing criminal and civil crown lawyers from the ten provinces and from the federal government. There are no national statistics for the number of crown counsel but there are 460 in British Columbia, 850 in Ontario, 160 in Manitoba, and 90 in Nova Scotia. Many provinces have experienced a shortage of Crown attorneys, which has led to serious delays in the criminal justice process in some jurisdictions. For example, the Alberta Crown Attorney’s Association has reported that it is in a “state of continual crisis” due to “never-ending staff shortages, frozen wages, unpaid overtime and crushing workloads”.
3. PROCESS AND PROCEEDINGS: OVERVIEW
3.1 Criminal Procedure
3.1.1. Criminal Investigations
Police are responsible for conducting criminal investigations. At the investigation stage, police gather and review information to figure out what happened. This may involve, for example, examining the place where the crime occurred and talking to victims and witnesses. Based on what they learn, police decide whether there is enough evidence to prove an accused committed a crime. If they think there is, they may make a report to Crown counsel recommending that charges be laid. Like Crown counsel all police activities, including investigations, must be done independently.
Here are the common steps in a police investigation:
- The investigation begins when a crime or an incident is reported/known to police.
- Police gather information from the victim, witnesses and other people involved.
- Police may ask the victim to complete a statement.
- Police may ask witnesses to complete a witness statement.
- In some situations, police may also examine the crime site to get any physical evidence. This may include forensic evidence.
- Police review the information collected and decide what action to take.
Canada is served by highly-trained police forces at the municipal, provincial and national levels and with specialized investigation branches in metropolitan areas as well as nationally as part of the Royal Canadian Mounted Police.
3.1.2. Criminal Prosecution Proceedings
Criminal procedure is set out in federal legislation, the Canadian Criminal Code, and is therefore relatively consistent across the country. The British Columbia Provincial Court prepared the following criminal case flow chart, which provides a good basic overview of the criminal process in Canada.
There are three types of offences (crimes): Summary Offences, Indictable Offences, and Dual or Hybrid Offences. Less serious crimes use what is known as the “summary conviction process”. The court process is simpler and the penalties are lower. More serious crimes proceed “by indictment”. Many crimes are “dual procedure” or “hybrid”, meaning the Crown chooses whether it will proceed summarily or by indictment. A jury is only available in very serious criminal matters.
3.1.3. Consistency with the Rule of Law
The Canadian criminal justice system is generally compliant with the rule of law and due process. These rights are guaranteed under the Charter and accused persons have the right to plead violations of these rights in every case. Where these claims are successful, the accused has the right to an effective remedy (e.g. exclusion of evidence, mistrial). In addition, Charter claims often result in systemic changes in laws, policies and procedures since a finding of unconstitutionality must be fully remedied.
A longstanding concern has been the over-representation of Indigenous peoples both as victims of crime and within provincial and federal penitentiaries. Canada has been subject to criticism by international treaty bodies for the “disproportionately high rate of incarceration of indigenous people, including women, in federal and provincial prisons across Canada”, as well as obstacles faced by Indigenous people in accessing justice. The UN Human Rights Committee has urged Canada to “strengthen its efforts to promote and facilitate access to justice at all levels by indigenous peoples”.
Another recurring concern is unreasonable delay in the criminal justice process. In 2016, the Supreme Court of Canada revisited this issue and rejected the framework traditionally used to determine whether an accused was tried within a reasonable time under section 11(b) of the Charter, replacing it with a presumptive ceiling of 18 months between the charges and the trial in a provincial court without preliminary inquiry, or 30 months in other cases. Canadian governments, courts, crown prosecutors and other criminal justice system actors are taking active steps to reduce delays so that the criminal justice system can comply with this decision. Some examples of responses include improved case management techniques, court rule changes, and additional public investments.
In 2019, the Canadian government passed legislation enacting reforms aimed at making the criminal law and the criminal justice system clearer and more efficient, including by:
- streamlining bail processes to ensure fair and swift access to justice;
- creating a new process to more effectively and efficiently deal with certain administration of justice offences, including for youth;
- reclassifying offences to provide prosecutors with the discretion to more efficiently deal with less serious conduct, freeing up limited judicial resources;
- restricting the availability of preliminary inquiries to the offences carrying the most serious penalties to ensure criminal cases can proceed more efficiently to trial, and to reduce the impacts of testifying twice on victims;
- improving the jury selection process to make it more transparent and promote fairness and impartiality; and
- providing judges with more robust tools to manage the cases before them.
3.2. Civil Procedure
3.2.1. Overview of Civil Procedures
Each Canadian court has adopted rules of civil procedure which set out the steps to be taken in a civil matter and many courts tailor litigation steps to different types of litigation (based, for example, on complexity of the matter). In general, these are the steps in a civil action:
- Bringing a claim
- The plaintiff prepares a statement of claim (e.g. notice of civil claim in BC), which contains a concise statement of material facts on which the plaintiff relies. The court issues the statement of claim.
- The plaintiff serves the statement of claim on all defendants and files an affidavit of service with the court.
- If the defendant does not defend the action, this affidavit of service is necessary for the plaintiff to obtain default judgment.
- Defending a claim
- The defendant prepares a statement of defence and serves it on the plaintiff, and files a copy with the court together with proof of service.
- The defendant may counterclaim against the plaintiff, cross-claim against a co-defendant, or make a third party claim against a non-party.
- Where a defendant fails to deliver a statement of defence within the prescribed time, the plaintiff may obtain default judgment from the court registrar or a judge, depending on the type of claim.
- Parties have an opportunity to obtain evidence required to pursue/defend the claim.
- In some courts, the parties must agree on a discovery plan if they wish to obtain evidence through the discovery process.
- The parties must deliver to all other parties an affidavit that lists all relevant documents in the party’s power, possession or control. Copies of the documents must be made available at a party’s request.
- A party may examine an opposing party, at which time the party must attend to answer questions under oath. The examination is recorded, and where requested, transcribed. Most courts have limits regarding which parties can be examined, how many examinations can take place and, in some cases, there is a maximum time limit.
- Setting an action down for trial
- Either party may set the action down for trial by serving and filing the trial record. A trial record includes a copy of all pleadings and orders relating to the trial.
- The registrar places the action on the trial list, or in some locations, trial dates are fixed by a judge in assignment court.
- Pre-trial conference
- In most courts, it is compulsory for parties to a pre-trial conference before a judge or court officer to attempt to settle the case or narrow the issues.
- The plaintiff and defendant make opening statements. The plaintiff’s witnesses are examined and cross-examined. The defendant’s witnesses are examined and cross-examined. The plaintiff and defendant make closing arguments. In many cases, much of the evidence can be entered from the discovery process rather than through viva voce evidence.
- A judge may give judgment in court right after both sides have finished presenting their cases. Sometimes, however, the judge may not give the judgment right away but will give the decision later (this is called reserving judgment).
Over the years, courts have enacted rule changes aimed at simplifying civil procedures in order to increase access to justice by reducing complexity as a means to reduce cost and delay. One example is the increased use of summary judgment procedures. Another major step has been to consistently increase the jurisdiction of small claims courts by increasing the monetary value of the claims within their purview. British Columbia has established a Civil Resolution Tribunal, Canada’s first fully online tribunal, which now deals with motor vehicle injury disputes up to $50,000, small claims disputes up to $5,000, strata property (condominium) disputes of any amount, and societies and cooperative associations disputes of any amount (see further section 9 below).
3.2.2. Encouraging Settlement
The vast majority of Canadian civil cases do not proceed to trial. Most courts have taken steps to encourage the early resolution of disputes including:
- active case management;
- pre-trial settlement conferences presided over by judges or court officers (such as masters);
- the BC Civil Resolution Tribunal provides online assistance with negotiation between parties;
- also in British Columbia, mandatory private mediation that can be triggered by one of the parties delivering a notice of intention to mediate to the other side;
- in some courts, judicial dispute resolution (JDR) is available at various stages in the civil process;
- In the province of Québec, pursuant to legislation that came into effect on 1 January 2016, parties to an eventual litigation have the obligation to consider alternative dispute resolution methods before introducing a civil claim; and
- mediation is mandatory at the pre-trial stage in some Ontario courts.
3.3. Alternative Dispute Resolution
3.3.1. Compulsory and Voluntary ADR
Disputes are resolved by litigation unless the parties mutually agree upon an alternative method to resolve the dispute, which might include mediation, arbitration, or a combination of methods. However, even if a party commences litigation, that party may be required to attempt to resolve the dispute by way of ADR. The use of mediation is particularly widespread in family law matters.
Alternative dispute resolution processes, particularly mediation and arbitration, are widely used in Canada. For the most part, participation in these process is voluntary, often by prior agreement in a contract. Under statutory labour codes, arbitration is compulsory for many matters in the labour context. Most standard form commercial construction contracts include mediation as one of a few prerequisite steps to engaging in binding arbitration. Similarly, many consumer and employment agreements include mandatory arbitration clauses. The enforceability of these types of agreements is in some doubt following several recent court decisions.
3.3.2. ADR Policy Drivers
The use of ADR in Canada is diffuse and diverse. In addition to civil procedure rules and encouragement from courts, codes of professional conduct also typically require that lawyers must consider ADR with their clients.
3.4. Simplification of Law and By-Passing Legal Processes
Proactive legal regimes such as consumer protection measures and regulatory oversight can contribute to access to justice by shifting the burden of enforcing legal rights and responsibilities and ensuring compliance to the regulator, rather than individual legal claims. Canada, however, has witnessed an opposite trend where administrative agencies, such as human rights and employment standards commissions originally intended to protect individuals through systemic enforcement and reliance, now rely almost exclusively on individuals to launch complaints. This move away from state enforcement of standards has led to rising demand for related legal assistance, often undermining the original objective of preventing disputes and improving public protection.
One successful example of by-passing court processes was the move to Workers Compensation schemes. Each province and territory in Canada has its own exclusive Workers’ Compensation Board/Commission, except the Northwest Territories and Nunavut have a combined Workers’ Compensation Board. There is substantial evidence that workers’ compensation systems deliver their benefits more efficiently than the tort system. Administrative costs consume 10% of workers’ compensation premiums in Ontario, compared to close to 50% for the tort system. Workers’ compensation also handles many small claims that would not be brought under a tort system. Delays between injury and compensation are also much shorter under workers’ compensation than under tort law. Canadian Workers’ Compensation Boards have also been proactive in workplace regulation to improve safety. For example, the BC Board (now WorkSafe BC) led the charge to prohibit smoking in the workplace.
Court procedures are also by-passed to some extent through the adoption of no-fault automobile insurance under which policyholders are not only reimbursed by the policyholder’s own insurance company without proof of fault, but also restricted in the right to seek recovery through the civil-justice system for losses caused by other parties. Most provinces in Canada have some form of no-fault accident benefits that are paid to all collision victims. The difference is the degree to which tort (the right to sue) or no-fault (access to accident benefits) is emphasized. For example, Québec has a pure no-fault system that eliminates the right to sue, but provides substantial accident benefits. Ontario has a “hybrid” system, which blends no-fault and tort. Saskatchewan and Manitoba have either pure or hybrid no-fault insurance systems. British Columbia, Alberta and the Atlantic provinces have tort-based systems. In BC, recently introduced rules to simplify auto insurance claims were ruled unconstitutional.
One highly successful example of simplification of law is the development of federal child support guidelines. The Federal guidelines are a set of rules and tables used to determine child support when parents get divorced. They are the law. Their main goals are:
- to establish a fair standard of support for children so that they continue to benefit from both parents’ incomes after separation or divorce;
- to reduce conflict and tension between parents by making the calculation of child support more objective;
- to ensure that parents and children in similar situations are treated the same; and
- to make the legal process more efficient and encourage settlements by giving courts and parents guidance about child support.
Whereas before support orders were litigated on a case-by-case basis, now, in almost all cases, judges are required to follow the guidelines to determine the amount of child support. Many parents can use the child support guidelines to help them reach an agreement. If parents can agree, they have some flexibility in setting the child support amount, as long as reasonable arrangements have been made taking into account the guideline amount. The guidelines are coupled with family maintenance/support enforcement in each province and territory, which simplify the collection process.
An evaluation concluded: “Five years later, it is clear that the Guidelines are working well. Child support amounts are predictable and consistent, and the vast majority of parents are setting child support amounts without going to court.” The Survey of Child Support Awards database confirms that the vast majority of cases involving child support under the Divorce Act are settled by consent: from 86 percent of all cases in 1997-98 to 88 percent in 1999 and 93 percent in 2000. The Survey of Child Support Awards confirms that the Federal Child Support Guidelines have been used to determine child support orders in the vast majority of divorce cases in the selected courts. In addition, there seems to be little doubt that in the vast majority of cases the child support tables have gone a long way toward ensuring that children receive a fair amount of support and toward reducing conflict and tension between parents about child support. In 94 percent of sole custody cases processed under the Guidelines, the child support amount was greater than or equal to the table amount. The tables have also made the legal processing of cases more efficient and have helped ensure that parents and children in similar circumstances are treated consistently.
A similar approach was taken to the development of Spousal Support Guidelines, although these guidelines are advisory only and are not law. Nevertheless, judges often base their decisions about spousal support on the guidelines. Many family lawyers also use the guidelines when helping clients to make decisions and set up spousal support agreements out of court. Tools have been developed to help professionals use the guidelines.
4. ACCESS TO JUSTICE, EQUAL ACCESS TO COURT AND FAIR TRIAL
4.1. Rights to Access to Justice, Equal Access to Court and Fair Trial
Canada has a deep principled commitment to access to the courts and equal access to justice. The right to a fair trial in criminal matters is protected by sections 7-14 of the Canadian Charter and a broader right to a fair hearing and fair criminal trial by ss. 2(e) and (f) under the Canadian Bill of Rights, legislation adopted in 1960, which has quasi-constitutional status. A more general right of access to the superior courts has also been recognized by the Supreme Court of Canada in several cases.
Canada is a signatory to all major international conventions including the many provisions concerning access to the courts. These international obligations are not directly enforceable by Canadian courts except to the extent that they have been specifically adopted in domestic legislation. International law does, however, play an important normative and interpretive role within the Canadian justice system.
4.2. Political Commitment to Access to Justice
Canada takes pride in having a strong, independent, and fair court system and effective rule of law. There is a strong political and societal consensus on these principles. At the same time, like in many countries, equal access to justice and the courts is not fully a reality in Canada, particularly with respect to non-criminal matters. Canadian governments, judiciary, law societies, bar associations and legal organizations have developed access to justice initiatives, though much work remains to be done.
Access to justice still is a relatively limited government priority and funding cuts often fall heavily on civil legal aid programs and other access to justice initiatives. This situation is reflected in the World Justice Project’s Rule of Law Index ranking of Canada, which is high on most indicators except access to civil justice, where Canada fares comparatively poorly relative to other developed countries. Progress is also hindered by a lack of data measuring access to justice and, as a result, it is difficult to effectively evaluate how accessible justice is in Canada.
Barriers to accessing justice are particularly onerous for persons of modest means and members of vulnerable and disadvantaged groups in Canada. This situation has been remarked upon by various international treaty bodies for over a decade now. Many of these conclusions are the direct result of cuts to funding to civil legal aid, but others reflect the range of barriers faced by “aboriginal peoples, African Canadians and persons belonging to minority groups”, women with disabilities, and Indigenous women and members of minority groups.
4.3. Canada’s Access to Justice Policy
There is no official national access to justice policy in Canada. Broad directions for reform were developed through a collaborative project involving key national justice organizations initiated, and currently chaired, by the former Chief Justice of Canada, the Right Honourable Beverley McLachlin: the National Action Committee on Access to Justice in Civil and Family Matters (Action Committee). The Action Committee developed a set of Justice Development Goals published in its 2013 report and, with the assistance of the Canadian Forum on Civil Justice and others, has been reporting on progress toward their achievement. A related companion report prepared by the Canadian Bar Association (CBA), Reaching Equal Justice (discussed further below), focuses to a greater extent on access to legal services as a key component of access to justice. Follow up to this work includes a joint project by the CBA and the Association of Legal Aid Plans proposing national benchmarks for public legal assistance services. The CBA has also developed a series of modules, Legal Health Checks and Preventative Lawyering Toolkit, resources to help lawyers build the legal capabilities of their clients.
Canada’s Justice Development Goals serve as a common framework to coordinate access to justice efforts, share innovations and measure progress. They are based on six guiding principles for change:
- Put the Public First
- Collaborate and Coordinate
- Prevent and Educate
- Simplify, Make Coherent, Proportional and Sustainable
- Take Action
- Focus on Outcomes
The nine Justice Development Goals are:
A. Innovation Goals
1. Refocus the Justice System to Reflect and Address Everyday Legal Problem
2. Make Essential Legal Services Available to Everyone
3. Make Courts and Tribunals Fully Accessible Multi-Service Centres for Public Dispute Resolution
4. Make Coordinated and Appropriate Multidisciplinary Family Services Easily Accessible
B. Institutional and Structural Goals
5. Create Local and National Access to Justice Implementation Mechanisms
6. Promote a Sustainable, Accessible and Integrated Justice Agenda through Legal Education
7. Enhance the Innovation Capacity of the Civil and Family Justice System
C. Research and Funding Goals
8. Support Access to Justice Research to Promote Evidence-Based Policy Making
9. Promote Coherent, Integrated and Sustained Funding Strategies
Further information about policies, practices and initiatives related to the achievement of the Justice Development Goals is available in the Action Committee reports available on the Canadian Forum on Civil Justice website. These reports provide an annual update on access to justice initiatives across Canada, inclusive of a list of published research and evaluation reports. The Action Committee has also established a Metrics Working Group to address the Canada’s deficit in access to justice data.
4.4. Government Responsibility for Access to Justice Policy
In Canada, both the civil and criminal justice systems are fragmented by division of labour between organizations, a fragmentation that is reinforced by fundamental principles of an independent bench and bar. As a result, no one organization is responsible for ensuring access to justice. Some government departments of justice have established an office for this purpose, which is an important step forward, but these offices do not have effective decision-making power over the courts and lawyers. A major culture shift has occurred as a result of the Action Committee’s work: a collaborative group or committee has been established in each province or territory in the country. Each year, the Action Committee meets for its annual Summit bringing together representatives from these provincial/territorial collaborations and representatives of the justice sector institutions to coordinate access to justice efforts. As noted above, the Action Committee has also created vehicles to share access to justice ideas in Canada.
5. LEGAL AID SYSTEM
5.1. The Legal Aid System in Canada
5.1.1. A Brief History of Legal Aid
Canada has a national decentralized system of legal aid. The legal aid system is made up mainly of 13 provincial and territorial legal aid commissions or societies, legal aid “plans” as they are commonly referred to in Canada although the formal legal names are societies or commissions. Legal aid is considered to be an aspect of the administration of justice, which is a provincial responsibility under the division of powers set out in Sections 91 and 92 of the Constitution Act. There is one statutory legal aid plan in each province and territory, delivering criminal, family and non-family civil legal aid. There are other independent legal aid service providers that provide specialized services in areas such as disability or environmental law.
The national system of legal aid began to evolve in 1971. In that year the federal government entered into an agreement with the provinces to share the cost of providing criminal legal aid administered by the Department of Justice. As mentioned earlier, criminal law and procedure are federal powers in Canada. Prior to 1971 the availability of legal aid was uneven across the country. In most provinces legal aid had been provided on a limited pro bono basis by the provincial law societies and by private law firms. Province-wide legal aid had existed in British Columbia since 1952. The Ontario Legal Aid Plan was established in 1967. Non-profit legal aid organizations had been created in Québec City in 1951 and in Montréal in 1956. The federal Department of National Health and Welfare (presently called Health Canada) funded student legal clinics in four provinces; Nova Scotia, Ontario, Saskatchewan and British Columbia during the 1960s.
In 1981-82 the federal government began making contributions to the cost of civil legal aid under a program called the Canada Assistance Plan (CAP), administered by the Department of National Health and Welfare. CAP was a federal program to support health and social services programs in the provinces and territories that were not explicitly areas of federal jurisdiction. In 1985 the CAP regulations were changed to formally include civil legal aid as a service eligible for federal support under the program as an “item of special need”.
5.1.2. The Right to Legal Aid
There is no specific legal right to legal aid in Canada. Citizens and residents of Canada have a right to a fair trial under the Legal Rights provisions of the Charter (ss. 7, 8, 9, 10) and under s. 15 (1) of the Equality Rights provision of the Charter. These Charter rights form the basis for a right to legal representation to assure a fair trial. The right to counsel to assure a fair hearing had been part of the Canadian Bill of Rights (1960). However, it was considered by judges as more interpretive in nature than the provisions of the Charter.
There is a specific right to legal advice based upon arrest and detention under R v. Brydges  1 S.C.R. 417. This is known as Brydges duty counsel. The police are required to make all reasonable efforts to allow detained persons to obtain legal advice as soon as practical. Legal aid lawyers are available to provide advice by telephone on a 24-hour, 7 day-a-week basis.
In civil matters Canadians have a right to legal representation in matters of child apprehension. The Supreme Court of Canada ruled that the denial of legal representation for parents in circumstances where a child is being apprehended by the state is a denial of the guarantee of life, liberty, and security of the person, guaranteed by s. 7 of the Charter.
5.1.3. Significant Reforms of the Legal Aid System
On a national level the structure or legal aid is much as it was by the early 1970s for criminal legal aid and by the mid-1980s for civil legal aid. By 1973-74 all jurisdictions had signed agreements with the federal government for cost-sharing of criminal legal aid. By 1986-87, eight provinces were making claims for civil legal aid expenditures under CAP.
There has been one major change in legal aid funding on a national level. In 1995 dedicated federal funding for civil legal aid in the provinces was discontinued. In response to severe budget pressures the federal government terminated the CAP, replacing it with a large block funding program called the Canada Health and Social Transfer, later changed to the Canada Social Transfer (CST). With the end of CAP dedicated federal funding for civil legal aid was discontinued. The CST remains a block transfer program with no reporting requirements for specific areas of expenditure such as legal aid. The funds that had been provided to provinces under CAP in the year it was terminated, approximately $85 million, remained in the CST.
Federal funding for legal aid goes to provincial and federal treasuries. Funding for legal aid operations is provided by the provincial and territorial governments because the legal aid plans are bodies created by provincial or territorial statute. The change in federal funding for civil legal aid did not disrupt the growth of legal aid in the longer term.
Probably the most fundamental change occurring in legal aid delivery is a shift toward holistic and integrated service delivery. The Action Committee recommended the adoption of an expansive and user-centered approach in access to justice discourse in Canada. Melina Buckley has outlined how the rationale for robust public legal assistance in Canada is changing with a growing appreciation of the results of current legal needs research. Buckley suggests focusing on the cost of unmet need, providing a range of services and service providers to meet a range of needs, building the diagnostic capacity to match services to client needs, circumstances and capabilities, developing referrals and interagency collaboration across sectors and the emergence of collaborative leadership across sectors.
There have been major influences in the past that have influenced legal aid in ways that have changed legal aid delivery. Among them have been the reformed legal regime for dealing with young offenders that emphasized alternative measures and diversion, the Gladue decision of the Supreme Court of Canada that instructed lower courts to consider the unique circumstances of Aboriginal offenders at sentencing, and, more broadly, the revolution in family law that began during the 1990s and continued in the years following. These were important influences to which legal aid responded, each one characterized by elements that adumbrated the impact of the paradigm shift that began to occur as the results of legal problems research filtered down from the level of scientific research to the worlds of policy and program development. This shift provided a coherent empirically based theoretical framework for thinking about legal aid. Lack of mandate and resources have sometimes slowed the course of this change to some extent in Canadian legal aid plans. Delivery models also play a role. It is more difficult to bring about change in judicare systems than in staff lawyer clinic models. Part of the reason is that low hourly rates or block fees and a narrow range of services defined by tariffs limit what private bar lawyers would be able/willing to do under the best of circumstances. However, legal aid plans are becoming more people-centered in the sense of providing holistic and integrated service. This appears to be becoming the conventional thinking in legal aid, becoming reflected in many aspects of intake, assessment of needs and service delivery.
5.1.4. Democratic Development and the Growth of Legal Aid
The promulgation of the Charter, discussed earlier, has been the historical landmark that has undoubtedly strengthened the justice system in Canada, mainly in criminal law. Legal aid has been a key aspect of making the Charter a reality. Providing legal aid became more complicated as the influence of the Charter grew through the accumulating body of case law. At the same time, as will be discussed in subsequent sections, legal aid in Canada has continued to grow.
5.1.5. The Importance of Legal Aid for Delivering Access to Justice
Legal aid occupies the vast majority of the terrain of access to justice in Canada. On a national basis all legal aid plans received a total of 662,349 applications for criminal legal aid in 2016-17. About 81% of applications for criminal legal aid were approved. About 75% of civil legal aid applications were approved. Legal aid plans provided 1,161,853 in-court duty counsel assists during the same year.
In 2016-17 there were 1,227,546 criminal charges. Service delivery levels of approximately 930,000 duty counsel assists in criminal courts across the country. Bearing in mind that only a portion of persons charged with criminal offences plead not guilty, thus proceeding to more advanced stages of the criminal justice process, there were 277,000 approved legal aid applications for criminal legal aid. This indicates a substantial level of service relative to expressed demand. However, it does not address the broader issues of unmet need.
5.2. The Legislative Framework for Legal Aid
See the earlier discussion set out in section 5.1.
5.2.1. The Constitutional Right to Legal Aid
See the earlier discussion set out in section 5.1.
5.2.2. The Right to Legal Aid is Set Out in Other Laws
None of the provincial or territorial legislation establishing legal aid plans include a right to legal aid services. The legal aid legislation in both British Columbia and Ontario included statutory provisions assuring the accessibility of legal aid for eligible persons prior to the early 1990s. These provisions were removed in both provinces allowing governments greater flexibility to reduce legal aid spending during periods when governments were applying constraints to overall spending.
5.2.3. The Right to Legal Aid and Judicial Decisions
Apart from the decisions noted above in Section 5.1, the courts have been reluctant to render decisions that place demands on provincial and territorial expenditures. Lower criminal courts will often stay proceeding if the judge feels that an unrepresented accused will not receive a fair trial. Judges will not allow accused persons to be tried on serious matters without legal representation.
5.3 Institutional Framework for Legal Aid
As discussed earlier, legal aid is a provincial responsibility under the division of powers specified in ss. 91 and 92 of the Constitution. There is separate enabling legislation that creates the same effect for the three territories. Legal aid commissions and societies are created by provincial and territorial statutes.
5.3.1. State Responsibility for Legal Aid
See the earlier discussion set out in section 5.1.
5.3.2. Organizational Description at the National Level
Legal aid plans in 9 provinces – British Columbia, Alberta, Saskatchewan, Ontario, Québec, New Brunswick, Nova Scotia, Newfoundland & Labrador and Yukon – are governed by single boards of directors. Nunavut has a territory-wide board of directors, which includes representation from three regional clinics, Iqaluit, Rankin Inlet and Cambridge Bay. Each of the three regional clinics has a separate board of directors. The legal aid plans in Prince Edward Island and the Northwest Territories are part of the provincial or territorial Department of Justice. Prince Edward Island Legal Aid is a division of the Department of Justice and Public Safety. It does not have a board of Directors.
All of the legal aid plans function independently on a day-to-day operational basis. However, all of the plans are established by provincial and territorial statute and the level of funding is set by the provincial or territorial government. Government officials negotiate with the federal government concerning funding for legal aid in criminal, immigration and refugee matters. Therefore, governments exercise the ultimate power of the purse over the extent of legal aid services and broad matters of legal aid policy.
The heads of the legal aid plans exercise the ordinary operational management duties of a chief executive officer.
Legal aid plans in Canada employ a reported 2,516 persons. This includes 1,145 staff lawyers (45%), 602 legal workers, including intake workers, paralegals, legal assistants and articling students (31%), and 769 administrative and management staff (24%).
Alternative dispute resolution services, discussed earlier, are included in the tariff structures of most legal aid plans. These may include conciliation, mediation and collaborative lawyering. The Legal Services Society of British Columbia has an on-line legal service component known as MYLAW. This includes an on-line dispute resolution component for parenting disputes.
5.3.3. Delivery Models
In 2016-2017 there were 17,112 lawyers providing legal aid in Canada. On a national basis 93% were private bar lawyers providing legal aid on the basis of certificates issued to successful applicants by legal aid plans. The remaining 7% were staff lawyers.
Only one legal aid plan, Newfoundland and Labrador, is a predominantly staff lawyer system. Out of a total of 98 lawyers, 71% were staff, with 29% private bar.
Three jurisdictions were balanced mixed systems. Out of 198 lawyers providing legal aid in Saskatchewan, 57% were private bar lawyers. In Prince Edward Island, 58% of 46 lawyers were private bar and in the Northwest Territories 57% of the total of 37 lawyers were private bar lawyers.
The legal aid plans in 8 jurisdictions were totally or predominantly private bar systems. 98% of 1,099 lawyers providing legal aid in British Columbia were private bar lawyers, 98% of 4,619 lawyers in Alberta were private bar lawyers, 96% of 7,509 legal aid lawyers in Ontario were private bar lawyers, 86% of 2,692 lawyers in Québec were private bar lawyers, 85% of 331 lawyers in Manitoba were private bar lawyers, 79% of 145 lawyers in New Brunswick were private bar lawyers, and 71% of lawyers providing legal aid in Nova Scotia were from the private bar. No data is available for Nunavut.
Four jurisdictions employ small numbers of paralegals; Newfoundland and Labrador, 4; Ontario, 9; Manitoba, 5; and British Columbia, 2.
5.3.4. Development Strategies
In view of the large differences in the size, geographical variations and available funds, different legal aid systems have adopted different approaches to legal aid delivery, to meeting demands for service, and adapting to changing demand.
5.3.5. Client Participation in Setting Priorities
The nature and extent of client participation in legal aid boards varies among the 13 jurisdictions in Canada. The Action Committee’s work, discussed above, has encouraged public participation in justice policy discussions.
5.3.6. Data on Public Support for Legal Aid
Since 2008, the Legal Services Society of British Columbia has conducted annual public opinion polls to determine the degree of public support for legal aid. The 2018 poll revealed a very high level of public support for legal aid: 93% of the public supported legal aid overall, 76% of the public agreed that legal aid should provide service to resolve matters related to legal issues, and 87% felt that legal aid is important for assuring fairness in the justice system.
5.4. National Legal Aid Expenditures
5.4.1. Sources of Legal Aid Funding
Legal aid plans reported total revenues of $846,282,419 in 2016-17. The vast majority of funding comes from governments. The total federal government contribution was $137,998,506. This amount included $119,735,829 for criminal legal aid and $18,750,000 for immigration and refugee legal aid. Provincial and territorial governments contributed a total of $671,262,677. Funding from both levels of government equalled approximately 92% of all sources.
Other sources of revenue were client contributions, 2% ($14,2454,114); contributions from the legal profession and from Law Foundations, 0.07% ($5,580,517) and other sources, 5% ($44,956,724). In all, non-government sources of funding equalled about 8% of the total.
5.4.2. Legal Aid a Component of the Justice System Budget
Legal aid budgets are distinguishable from the budgets of other parts of the justice system.
5.4.3. How Legal Aid Budgets Are Set
Legal aid budgets are set by provincial and territorial governments in consultation with legal aid plans in the respective jurisdictions.
5.4.4. Total Legal Aid Revenues and Expenditures by Type of Service
Chart 05. Total Legal Aid Revenues and Expenditures
5.4.5. Large Scale Budget Cuts
Historically, there have been two major budget cuts by legal aid plans. In Ontario, the provincial contribution to legal aid was reduced from $194.8 million in 1990-2000 to $171.1 million in 2001-2002. In British Columbia, the provincial contribution to legal aid was reduced from $83.8 million in 2001-2002 to $57.5 million in 2002-2003. The British Columbia cut resulted in the elimination of a major part of the legal aid delivery system, community clinics known as Community Legal Offices and Native Community Legal Offices. The federal government capped the contribution for criminal legal aid at the 1989-90 level.
Within the last 10 years the only major cut to legal aid occurred in Ontario in 2019 with a 35% ($133 million) reduction in the provincial contribution to legal aid. The consequences, which are very significant, have not yet been fully realized.
5.5 Legal Providers
5.5.1. Qualifications for Legal Aid Lawyers
Lawyers must be members of the provincial or territorial Law Society in which they provide legal services (see the earlier discussion on the legal profession in Canada).
5.5.2. Procedure for the Hiring of Staff Lawyers
Legal aid plans recruit staff lawyers using normal competitive search and assessment methods.
5.5.3. Interest in Legal Aid Among the Private Bar
It has long been generalized, and sometimes over-generalized, that the commitment to legal aid among older and more well-established lawyers traditionally based on professional responsibility is diminishing. Younger lawyers often, although not always, use legal aid as an entry portal into the profession and then leave if and when they become sufficiently well-established. Much of the dissatisfaction with legal aid among the private bar focusses on the level of legal aid tariffs. Tariffs are generally felt to be half or less of the normal rate charged to non-legally aided clients. The phrase “low bono” has been used by lawyers to emphasize the fact that the private bar is subsidizing the government and the legal aid plans by providing services on the basis of low tariffs. Also, the limits on hours allowable under tariffs often adversely affects the ability of lawyers to provide effective representation to clients. This is said to effect family law service.
There are several factors that affect private bar participation in legal aid. In Canada, there are bilingual areas in which lawyers able to practise in both official languages are in high demand and less likely to participate in the legal aid system. In rural areas, the few practising attorneys may have ample business from paying clients and therefore may not always accept legally-aided clients.
Legal aid plans do not have difficulty recruiting staff lawyers, probably because, overall, the number of staff lawyers is relatively small. Staff lawyers are typically very committed to the legal aid work they do for their clients.
5.5.4. Payment of Legal Aid Lawyers
Private bar lawyers provide legal aid to individuals on the basis of legal aid certificates issued to accepted applicants by the legal aid plan. Lawyers are paid on the basis of a tariff of fees established by the legal aid plan. In general, tariffs are complex structures based on hourly rates with caps and block fees for different levels of offences and services. Tariffs differ from one plan to the next in terms of hourly rate and how caps and blocks are applied.
5.5.5. Level of Remuneration for Legal Aid Work
The fees paid to lawyers under the tariffs are reportedly about half or less of the rates charged by lawyers and reported in annual lawyer surveys. Whether legal aid fees are adequate is partly a philosophical matter. When the national legal aid system was in its infancy, and lawyer attitudes were still strongly influenced by the pro bono era, objections to the low tariffs were not as strong. Providing legal aid to indigent clients was more likely to be considered as a professional responsibility. As legal aid became established as a government supported institution with budgets in the hundreds of millions of dollars, attitudes changed. The rationale for increased tariffs is nuanced and complicated, raising questions about the degree to which a system designed to provide assistance to the poor should support the income of the legal profession. In a predominantly private bar system, the legal profession is necessary for legal aid and there is an argument that the government should maintain the “health” of the legal profession for that reason. From another perspective, if an important objective of legal aid is to assure that the court system operates effectively, higher tariffs are easier to justify. However, to the extent that legal aid is viewed as a social program with objectives relating to alleviating social disadvantage and social exclusion, the argument for higher payments for lawyers takes on an added dimension. The five decades of the history of legal aid in Canada have shown that the tariff question does not have a simple answer.
5.5.6. Interference by Government in Legal Procedures
There is no evidence of direct interference by government in specific cases that legal aid normally provides service. However, controlling influence over types of cases for which service is provided can be exercised by government at a policy level through budget allocations. Government control can become more formal with memoranda of understanding that can direct legal aid plans with respect to which areas of law can be covered. This has been the case in British Columbia.
Provincial governments in British Columbia and Ontario have threatened to eliminate legal aid coverage for immigration and refugee matters. Although withdrawal of service has not actually occurred, the threat to do so was made by British Columbia in the early 2000s and recently in Ontario (2019). The basis for this is the assertion by provinces that immigration and refugee law and procedure is entirely under federal jurisdiction and therefore legal aid services to immigrants and refugee claimants should be 100% funded by the federal government. Since 2004-2005, the federal government has funded legal aid for immigrants and refugees in six provinces; Ontario, Québec, Newfoundland and Labrador, Manitoba, Alberta and British Columbia.
5.5.7. Special Prerogatives and Privileges of Legal Aid Lawyers
Legal aid lawyers enjoy no special privileges in the justice system to enhance their work.
5.6. Quality Assurance
5.6.1. Minimum Standards for Legal Aid Lawyers
Any lawyer who is a member of the provincial or territorial bar can apply to the legal aid plan to be placed on the list of lawyers who can accept legal aid certificates.
5.6.2. Responsibility for Professional Standards
Provincial and territorial law societies are responsible for the professional conduct and quality of service of lawyers in the various jurisdictions.
5.6.3. Monitoring Quality of Service
Every legal aid program in Canada has some form of quality assurance. Quality is included in the mandates of most legal aid plans across the country. The mechanisms to provide quality of service cover a wide spectrum. Staff programs use management control mechanisms to assure quality. As for the mixed model systems or exclusively judicare models, each plan has developed its own approach to quality assurance. None of the legal aid plans in Canada has a peer review approach to quality control, often considered the high-water mark of quality assurance. However, all plans have complaint programs which can identify quality issues. Several offer training programs and other practice supports for the private bar and in some cases legal aid plans have membership standards for lawyers admitted to the panel. Several plans survey their clients and ask questions about timeliness, preparedness and communications. Only Legal Aid Ontario has a dedicated quality assurance office or staff. Overall, the quality of service provided by lawyers, and the competence of lawyers, as discussed further above, is in the jurisdiction of the various law societies.
5.6.4. Continuing Education
Law societies and bar associations provide continuing professional education for their members. In Ontario, the Law Society of Ontario requires 12 hours of continuing professional development annually for lawyers and paralegals. In British Columbia the Law Foundation of B.C. provides annual training by lawyers for paralegals and community workers working in poverty law areas, organized and funded by LFBC.
5.6.5. Remedy for Poor Service or Lack of Availability
Poor service or lack of availability of service can arise from different circumstances. There is no direct remedy except a court challenge if a service is not available because the particular legal matter is not covered by the legal aid plan. Similarly, if service is poor or limited in remote areas in which legal aid is provided by circuit courts there is no avenue of appeal other than legal action.
In criminal matters, if representation by legal aid is not available in a case that is complex or there exists a risk of a significant length of imprisonment, a judge has the authority to order that counsel must be provided to assure a fair trial. Judges may order a stay of proceedings until counsel is provided. Although this is of greatest consequence for the integrity of the prosecution’s case, the responsibility to provide counsel in these exceptional circumstances usually falls on the legal aid plan under some agreement with the provincial Department of Justice.
A legal aid client who feels that the representation she or he has received is inadequate may appeal to the legal aid executive director. It is also possible to lay a complaint with a law society if an individual feels that the service has been inadequate, or some breach of trust or ethics has occurred.
5.7. Criminal Legal Aid
5.7.1. Scope of Criminal Legal Aid
A. Criminal Legal aid is available for people detained by the police
There is a specific right to legal advice based upon arrest and detention under R. v. Brydges  1 S.C.R. 417. As mentioned above, this is known as Brydges duty counsel. The police are required to make all reasonable efforts to allow a detained person to obtain legal advice as soon as practical. As earlier mentioned, legal aid lawyers are available to provide advice by telephone on a 24-hour, 7 day-a-week basis.
B. Legal Aid for Defendants Not Arrested
The determination of eligibility for legal aid would not be made until a charge is laid. Therefore, an individual who is not detained would not receive legal aid at the investigation stage.
C. Legal Aid for Defendants at Different Stages of the Criminal Justice Process
Defendants may receive representation by duty counsel only at the arraignment and plea stage if they are not financially eligible for legal aid and if they do not face the risk of incarceration should they be convicted. Defendants will receive representation at the trial stage if they are financially eligible and if the charge meets coverage provisions.
D. Legal Aid for Appeals
If an appeal is launched by the prosecution the individual will normally receive legal aid. Coverage for appeals initiated by the convicted person will be considered on a case-by-case basis. In 2016-2017 there were 3,494 applications for criminal legal aid appeals, of which 61% were approved.
E. Legal Aid After Conviction
Legal aid for prisoners, for prison law issues and for other legal problems arising because of or during incarceration, is generally available, if at all, through university legal aid clinics. These are usually partially supported by the provincial legal aid provider. For example, in British Columbia there is one independent legal clinic, The West Coast Prison Justice Society, that provides legal services for prisoners.
F. Legal Aid for Victims of Crimes
This is not generally available from the legal aid plans.
G. Legal Aid for Witnesses
This is not generally available from the legal aid plans.
5.7.2. Eligibility Criteria for Criminal Legal Aid
A. Financial Eligibility
In all provinces and territories, financial eligibility for legal aid is determined by income by family size grids. These are set to match poverty level guidelines calculated by Statistics Canada or other government bodies.
B. Client Contributions and Repayments
Client contribution schemes are generally not used in criminal legal aid because of the impecunious situation of most criminal legal aid clients. In certain cases, in which accused are suspected of having hidden resources, such as persons accused of drug trafficking, legal aid plans will attempt to recover costs. Experience is, however, people with substantial hidden resources are inclined to hire private counsel with extensive experience in successfully defending such cases.
5.7.3. Process for Obtaining Criminal Legal Aid
A. Criminal Legal Aid at the Police Investigation Stage
The police are obliged to make all possible efforts to allow the accused to contact counsel by telephone before questioning. See further the discussion in s. 5.1 above.
If the police fail to meet this obligation, the breach may constitute a violation of the persons Charter guarantee against arbitrary detention. This breach of the individual’s rights would be raised by defence counsel in court. If a judge determines that a breach of the individual’s Charter rights has occurred, the case may be dismissed. There is no grant of legal aid and no solicitor-client relationship is established. The detainee receives telephone advice from a duty counsel lawyer.
B. Applications for Legal Aid
Accused persons apply for legal aid to the provincial or territorial legal aid plan. Applications may be made directly at a legal aid office, may be initiated by a duty counsel lawyer or may be made by private lawyers on behalf of prospective clients who may be eligible.
C. Refusal of Legal Aid
Refusals may be appealed to the provincial or territorial director of legal aid.
D. Assignment of Legal Aid Lawyers
In mixed model systems serviced by staff lawyers, in which certain areas of the province or certain types of services are normally provided by staff counsel, legal aid lawyers are assigned. In judicare systems in which legal aid certificates are issued to clients, individuals are free to choose any lawyer who will accept clients at the legal aid rate. The right to exercise choice of counsel is assumed to be satisfied by freedom to choose counsel from the panel of lawyers accepting certificates.
There is no legal right to legal aid in Canada. However, the right to legal aid can be imposed by the court when it is essential to assure a fair trial. This normally occurs when the charges are sufficiently serious and complex and when the accused is unable to understand the charges and the proceedings.
The court may appoint an amicus to advise a defendant wishing to defend him- or herself.
F. Approved Applications for Criminal Legal Aid, 2007-2008 to 2016-2017
Year Total Applications Approved Applications
2007-08 324,924 267,889
2008-09 337,605 279,962
2009-10 338,593 277,868
2010-11 291,534 267,647
2011-12 331,574 277,802
2012-13 325,667 274, 227
2013-14 317,603 267,673
2016-17 340,781 276,936
5.8. Scope of Civil Legal Aid
5.8.1. Right to Civil Legal Aid
There is a legal right to civil legal aid only in matters of child apprehension. As discussed earlier, the Supreme Court of Canada ruled that denial of legal representation for parents in circumstances where a child is being apprehended by the state is a denial of the guarantee of life, liberty, and security of the person provided for by s. 7 of the Charter.
There is an implied right to legal assistance in the Equality Rights provision of the Charter, s. 15 (1). This provision guarantees that individuals are equal under the law and have the right to equal protection and benefit of the law without discrimination based on race, ethnic origin, colour, religion, sex, age, mental or physical disability.
5.8.2. Legal Advice
Legal advice, as distinct from legal representation, is provided in some jurisdictions. In Ontario the community legal clinics employ trained community legal workers and paralegals who provide advice to clients. In British Columbia, the MYLAW service provides on-line legal advice province-wide. Currently, MYLAW provides guided pathways to information about separation, divorce and other family matters, family violence, wills and personal planning and missed mortgage payments. Nova Scotia Legal Aid has an on-line chat service in which members of the public can ask questions of a lawyer about family law and social justice issues. The social justice issues include income assistance, disability pensions, landlord-tenant problems and employment insurance issues.
5.8.3. Assisted Self-Help
Legal advice or problem-focused legal information assisting a person to resolve problems or providing referrals to other organizations that might provide assistance is provided, for example, by community legal clinics in Ontario or MYLAW in British Columbia.
5.8.4. Legal Representation at Courts and Tribunals
In addition to the earlier discussion about legal aid representation in courts, representation at tribunals is available in some provinces and territories. However, the extent to which civil legal aid is available in areas of law adjudicated by administrative tribunals varies from one jurisdiction to the next.
5.8.5. Most Common Types of Cases
In 2016-17 there were 488,048 approved applications for legal aid in Canada. 56.7% (276,936) were for criminal matters and 41.5% (211,112) for civil matters. About 1.8% of approved applications were for provincial/territorial offences. Family matters were the most frequent among civil legal aid cases (69.2%). Assaults (11%), theft, break and enter, possession of stolen property (10%) and breach of probation (6%) were the most frequent criminal matters for which legal aid applications were approved.
5.8.6. Legal Aid for ADR
Legal aid is not typically provided for alternative dispute resolution.
5.9. Financial Eligibility Criteria for Civil Legal Aid
As mentioned earlier, financial eligibility for civil legal aid is assessed based on income by family size grids that are generally at the poverty levels set by Statistics Canada or other government agencies. Coverage for types of legal matters varies among jurisdictions.
5.9.1. Legal Aid for Specific Populations
The community clinic system in Ontario includes 13 specialty clinics, providing services to Aboriginal people, Afro-Canadians, persons with disabilities, elderly, prison law, environmental law, Spanish-speaking people, HIV-AIDS, income security, industrial accident victims, injured workers, children and youth, landlord advice, Chinese and South Asian people, and workers health and safety. Other more general clinics are located in various communities, in addition to university-based clinics.
5.9.2. Legal Merit
The legal merit of a case is a possible consideration in all eligibility assessment processes.
5.9.3. Client Contributions and Repayments
Some legal aid plans have client contribution programs. In some individual cases where a property settlement is involved, the legal aid plan will require a client to repay the cost of legal aid.
5.10. Process for Obtaining Legal Aid
5.10.1. Initiating a Legal Aid Application
Individuals apply for civil legal aid directly to a legal aid office. If the individual contacts a lawyer first, the lawyer may assist the individual in making the application.
5.10.2. Responsibility for Granting Legal Aid
Legal aid offices or clinics are responsible for determining eligibility. The eligibility determination process is centralized for the province or territory, except for the Ontario community clinics, which determine eligibility individually.
5.10.3. Refusals of Legal Aid
Refusals can be appealed to the executive director of legal aid for the province or the community legal clinic.
5.10.4. Assignment of Counsel
In judicare systems, people who are granted legal aid certificates may choose any private bar lawyer approved by the legal aid plan who will accept the case. In staff systems, counsel is generally assigned. If a conflict of interest arises, for example if both parties are being represented by lawyers from the same office, a lawyer from another legal aid office will be assigned.
5.10.5. No Legal Aid Lawyer Can be Found
A judge would normally use her or his discretion to allow the individual time to obtain counsel. This would only be required by law in matters of child apprehension.
5.10.6. Total and Approved Applications for Civil Legal Aid
Year Total Applications Approved Applications
2007-08 432,273 209,877
2008-09 450,582 221,463
2009-10 406,244 216,663
2010-11 378,625 208,970
2011-12 411,628 209,956
2012-13 399,122 200,293
2013-14 400,340 197,593
2016-17 270,359 202,926
[Data not collected for 2014-15 and 2015-16]
6. COSTS OF RESOLVING DISPUTES WITHIN THE FORMAL JUDICIAL MACHINERY
Canada has a widely respected justice system, with well-trained judges, lawyers, paralegals, and tribunal and court staff. However, most legal problems in Canada are resolved outside of the formal justice system. According to recent statistics, less than 7% of Canadians access a court or tribunal to resolve their legal problems, and less than 20% seek advice from legal counsel. Cost is a significant factor in peoples’ decisions about if and how they address their legal issues. Like most countries around the world, Canada has serious access to justice challenges.
Notwithstanding these challenges, the formal legal system – including courts, tribunals, lawyers, paralegals, etc. (as also discussed earlier) – continues to be the primary state-based system available to the public for resolving their legal issues.
6.1. Overview of Judicial Costs and Fees for Litigants
6.1.1. Difference Between “Fees” and “Costs”
A preliminary distinction to be made is the difference between “fees” and “costs”. Fees are generally understood to include the amount of money that clients are charged by their lawyers or paralegals, which include legal fees (e.g. hourly fees, set fees, etc.) and disbursements (charges for photocopies, travel expenses, expert fees, etc.). In sum, fees include the amount of money that clients actually pay to address their legal problems. The amount of fees that lawyers can charge are generally governed by provincial rules of professional conduct and legislation. Hourly rates in Canada vary depending on the level of experience and seniority of a lawyer, the kind of case involved, and the jurisdiction in which the lawyer practices. Although accurate averages are not available, based on a recent survey, hourly rates can range between approximately Cdn $150–$500, with some lawyers – particularly those working in bigger cities working on corporate and commercial related matters – often charging much more. In addition to hourly fees, other forms of fees include sliding scale fees, set fees for service, contingency fees, fees for unbundled services, etc. To the extent that a client qualifies for legal aid, their legal fees may be partially or fully covered.
Costs, on the other hand, are an amount of money deemed by a court or tribunal that a losing party in litigation (typically civil or family) should expect to pay to the winning party for their legal fees. The awarding of costs is typically in the discretion of a court or tribunal. Rules of court typically provide some guidance on how costs should be awarded. Rules of proportionality also are designed to guide the conduct, and fees, of legal matters.
6.1.2. Brief Description of Cost Shifting
The process by which a court or tribunal awards costs to be paid by the losing party to the winning party is often referred to as “cost shifting” (or sometimes “fee shifting”). Costs are typically awarded on a “partial” indemnity basis, which represents part of a party’s actual fees (estimated at approximately 40-75% of a party’s actual fees). Costs can, in less typical circumstances, be awarded on a “substantial” or “full” indemnity basis, representing an increased amount or all of a party’s actual fees. This happens in cases where a court decides that a party’s conduct in the litigation needs to be sanctioned. In some circumstances, no costs are awarded (including, in some cases, in the context of public interest litigation). Cases done on a pro bono basis can involve cost shifting. Further, if a lawyer’s conduct requires sanction, costs can – rarely – be awarded against a lawyer personally.
6.1.3. Process: Fixing v. Taxing Costs
The process of “fixing” costs typically involves a judge, master or other judicial officer deciding (“fixing”) the amount of costs at the conclusion of a trial, motion or other matter (usually based on submissions by the parties). Because this is usually the most efficient way of deciding the issue of costs, it is the approach typically followed in Canada. Alternatively, costs can be “taxed” by way of a master or other judicial officer deciding the issue of costs, after the fact, at a separate proceeding (again based on submissions). Provincial and federal court rules include tariffs (set amounts for specific tasks and matters). Tariffs play a significant role in taxing proceedings; whereas they play a less specific and sometimes more guiding role in the context of fixing costs.
6.1.4. Court Fees
Because justice is administered primarily through the provinces (as mentioned earlier), different fee rules, regulations and practices exist for all provincial courts and tribunals throughout Canada. The same is true for courts and tribunals at the federal level as well. As a general matter, court fees are charged for most first instance and appeal matters. For example, in Ontario, the fee for a superior court statement of claim is listed as Cdn $181, and Cdn $201 for perfecting an appeal. Fees may also be applied for certain hearings. However, where those fees have been found to act as a barrier to access to justice, they have been struck down by the Supreme Court of Canada as unconstitutional.
6.1.5. Method of Calculating Court Fees
Court and tribunal fees vary across the country and are typically set by provincial or federal rules and regulations.
6.2. Exemption from Judicial Fees
As a general matter, exemptions for court fees exist at all levels of courts and tribunals in Canada. Again, as with fees generally, fee exemptions differ from province to province and at the federal level as well.
6.2.1. Source of Exemptions
Exemptions are contemplated by rules, regulations and caselaw.
6.2.2. Criteria and Process for Exemptions
Depending on the jurisdiction and the court or tribunal, exemptions can typically be provided either by court staff or the court. Exemptions are typically provided on grounds of financial need, impecuniosity or other access to justice related circumstances.
6.2.3. Special Fee Exemptions Under Legal Aid
Some provincial regulations contemplate court and tribunal fee waivers for clients who are provided support by legal aid.
6.2.4. Repaying Exempted Judicial Fees
Courts may vary or rescind a court order waiving fees.
6.2.5. Cost Shifting in Legal Aid Cases
Cost-shifting in civil legal aid cases typically proceeds in a similar fashion as in non-legal aid cases. However, the costs in legal aid cases are generally seen as the property of the legal aid provider. As such, the costs paid by a losing party to a winning party (funded by legal aid) are to be paid back to the legal aid provider.
6.2.6. Overall: Do Costs and Fees Promote or Limit Access to Justice?
Costs are seen as an important part of an open court system in which essentially anyone can initiate a claim (with or without merit). In order to cover, at least to some extent, the legal fees of a party that is successful, cost-shifting is seen as an important policy tool. Further, the threat of paying the other side’s costs deters parties from bringing unmeritorious claims.
However, costs also have a potential chilling effect in terms of access to justice, particularly for parties with modest means who might be subject not only to their own lawyer’s fees, but also – through an adverse costs award – to those of his or her opponent. Even with a meritorious claim, the threat of potentially paying the other side’s costs is often too much to risk. For a further discussion about costs, particularly in the context of Charter litigation, see below section 7.
6.3. Mechanisms to Reduce Costs by Variations to Courts and Procedures
6.3.1. Courts of Special Jurisdiction
As discussed in more detail in section 2, above, Canada’s court and tribunal structure is founded on a constitutionally-based division of powers. Superior, inferior and appellate courts are administered in the provinces and territories. Additionally, Canada maintains the Federal Court of Canada and the Supreme Court of Canada. Further, there are provincial and federal tribunals. All of these courts and tribunals, with various first instance, judicial review and appellate roles, are contemplated in provincial and federal legislation.
As also discussed in section 2, above, in addition to these general courts and tribunals, special courts have more recently been created to address the complex needs of a modern, cosmopolitan population. For example, in addition to Canada’s specialized administrative tribunal system (landlord and tenant, human rights, employment standards, labour relations, environmental review, etc.), specialized courts including drug treatment courts, domestic violence courts, youth justice courts, mental health courts, specialized commercial lists, First Nations/Indigenous courts, etc., have been developed, all with specialized jurisdiction and significant expertise. These courts not only seek to improve efficiency through specialization, they also seek to improve the quality of justice for those involved, through their attentiveness to the specific needs and contexts of the issues and litigants involved. Class actions, discussed further below in section 7, are also available in Canada, with an express purpose of improving efficiency, behaviour modification, and access to justice.
6.3.2. Simplified Procedures
A variety of simplified procedures are available in Canadian courts. For claims of a specified amount (e.g. less than Cdn $200,000 or more typically Cdn $100,000), streamlined procedures, with more limited discovery and limited trial days, are available. In addition, there are procedures to resolve matters before a full hearing, including, for example, summary trials and motions for summary judgment, striking pleadings, addressing questions of law, etc.
6.3.3. Small Claims
As discussed earlier in section 2, for claims of smaller amounts, which vary from province to province (up to Cdn $35,000 but typically much lower), small claims courts are also available in Canadian provinces. Depending on the province, different rules as to costs, fees, rules of evidence, availability of counsel, etc., apply. Usually, but not always, counsel can appear on behalf of a party. Rules of evidence are typically slightly more flexible, and costs awards are typically significantly lower.
6.3.4. Liquidated and Unliquidated Claims
Distinctions are sometimes made between liquidated and unliquidated claims. Put very generally, liquidated claims are for amounts that are predetermined, specific, and objectively quantifiable (e.g. a specific and agreed upon contract amount, a receipt, rent for a specified period, etc.). Unliquidated claims, on the other hand, are for non-specific amounts (e.g. damages for a broken arm, etc.). In some circumstances, claims for liquidated damages, particularly in default proceedings, can be signed by a court registrar as opposed to going to a full hearing before a judge, whereas unliquidated damages typically need to be decided through a hearing process. Having said that, in the normal course of cases that do not settle, liquidated and unliquidated damages are typically decided through a hearing process.
6.3.5. Court-Connected ADR
As further discussed in section 3.3 above, the settlement of disputes is actively encouraged by courts, tribunals and regulators in Canada.
6.3.6. Private ADR
As also discussed further in section 3.3 above, in addition to court connected ADR, private ADR is widely available and used in Canada. With less than 7% of legal problems going to courts and tribunals, many different processes and services are accessed by Canadians. Further, other non-court based dispute resolution processes exist in Canada, including processes connected with different Indigenous communities and traditions, as well as dispute resolution processes connected with different religious traditions. For a further discussion of Indigenous laws and traditions, and religious traditions in the context of the Canadian justice system, see section 2.1 above.
6.3.7. Impact of this DR Spectrum on Efficiency, Fairness and Access to Justice
As a general matter, ADR is seen as part of a spectrum of law-related tools and processes designed to improve efficiency and access to justice. By diverting cases out courts and tribunals, and by resolving cases early within the court and tribunal systems, ADR is an important aspect of Canada’s overall justice system. Although generally true, the merits of public justice – including the creation of precedents, fair process for all participants, etc. – need also to be kept in mind when assessing the importance and effectiveness of different justice processes.
7. THE PROTECTION OF DIFFUSE AND COLLECTIVE RIGHTS
Canada’s justice system provides robust protections for diffuse and collective rights. The three main mechanisms for the advancement of these rights are class action litigation, the availability of group action under federal, provincial and territorial human rights codes, and the recognition of collective rights in the Charter and their enforcement through the courts. In addition, numerous community-based legal assistance clinics, discussed further above in section 5, advance the rights of particularly vulnerable and marginalized individuals and groups through a range of law-related strategies. The federal government has also established several programs to fund collective rights litigation by Indigenous peoples, official language minorities and equality-rights seekers.
7.1. Merger of Actions: Class Action Litigation
Class proceedings legislation allow people with a common grievance to sue as a group without having to prove each individual claim. Class actions have been available as a collective recourse to the courts since 1979 in Québec and since the early 1990s in most of the rest of the country. The objectives of these statutes are: judicial economy, access to justice, and behavior modification. Many of the larger class actions are now pursued on a Canada-wide basis through legal teams based in several provinces facilitated by the Ontario Class Proceedings Act, 1992, which provides for national class actions. Pursuant to the provisions of relevant class action statutes, any individual can apply to a court to have a class action certified and to have themselves named as the representative of the class by a court. This is the first major step in a class action proceeding. In deciding whether to certify a claim as a class proceeding, the court will consider whether the representative plaintiff and the proposed class action meet the elements of the prescribed test: whether the claim: (i) discloses a cause of action; (ii) contains an identifiable class; (iii) proposes issues common to the class; (iv) is the preferable procedure for resolving the complaint; and (v) has an appropriate representative plaintiff. Individuals who are members of the class but want to preserve their individual right to sue can opt out of the class during a specific period of time following certification. The merits of the class action are decided in a separate proceeding.
The use of class actions has been aided through contingency-funding which relieves litigants of the burden of paying litigation expenses and legal fees during litigation since payment is contingent on winning outcomes. Where a class action is successful, legal representatives are paid a percentage of the settlement or court award, which must be approved by the court. In most Canadian provinces, class plaintiffs are also protected from adverse cost awards after passing the initial barrier of certification of a class by a court. In additional, class action litigation funds were established in Québec and Ontario to provide financial support to approved class action plaintiffs. In Québec, the fund can reimburse a range of litigation-related expenses including legal fees and disbursements. In Ontario, the fund will pay for approved legal disbursements and also indemnifies plaintiffs for costs that may be awarded against them in funded proceedings.
7.2. Efficacy and Equity of Class Actions and the Benefits Accruing to Litigants
The reach of class action proceedings is hard to overestimate. According to a recent review of class proceedings by the Law Commission of Ontario:
Class action lawsuits can often involve thousands – if not hundreds of thousands – of potential litigants and millions – if not billions – of dollars in compensation. They can have a significant impact on the general public, corporate or government behaviour and reputations, public policy and the justice system. It is fair to describe class actions as one of the most high-profile and far-reaching legal procedures in the Canadian justice system.
On the whole, class actions have been successful in increasing access to justice, notably in major cases involving mass personal injury (e.g. blood, blood products and C. difficile infections), institutional abuse in residential schools and health care facilities, consumer protection (price fixing, pay day loans, criminal interest rates), environmental accidents, labour and employment issues (pensions, gender discrimination, misclassification and unpaid overtime), product liability (including implanted medical devices and food product recalls), securities and privacy breaches (credit cards and data security). Successive Supreme Court of Canada decisions have reaffirmed the important access to justice benefit of class actions. Unsurprising given their scale and complexity, class actions continue to be criticized as time-consuming and expensive and views about their public interest role remain polarized. However, Canadian courts have employed judicial specialization, tailored case management techniques, and unique cross-jurisdictional/multi-court hearings to facilitate efficiency. A recent study and report, both focusing on the experience in Ontario, conclude that class actions have transformed the practice of mass litigation, mostly for the better, but also identify a range of reforms to improve the regime. The CBA developed a national class action database to minimize duplication. BC’s Class Proceedings Act was recently amended to reduce duplication of class actions between provinces and require notification of related cases.
7.3. Collective Action under Human Rights Legislation
In Canada, as well as in several provinces and territories, human rights statutes establish commissions with a proactive duty to promote equality through education, research, consultations, reviews of regulations, rules, orders and so on for compliance with statutory protections, and the issuance of guidelines on the application of the statute. The ability and willingness of human rights commissions to promote substantive equality by systemic means has waxed and waned in different jurisdictions and over time. For example, the Ontario Human Rights Commission (OHRC) has taken this aspect of its enforcement mandate seriously, utilizing its powers to carry out public inquiries into specific human rights issues and also by regularly publishing practical policies and guidelines to provide advice on how to interpret and apply provisions of the Human Rights Code. The OHRC’s policies and guidelines set standards for how individuals, employers, service providers and policy-makers should act to ensure compliance with the Code. The Human Rights Tribunal of Ontario, which handles complaints of discrimination, may consider these policies in proceedings before it. Very recently, 17 years after dismantling its human rights commission, British Columbia established a fully independent office of human rights commissioner, which has a direct reporting relationship to the provincial legislature.
Human rights legislation across much of Canada also provides for rights infringement claims to be brought by several individuals together, on behalf of a class, or by a third person or organization on behalf of an individual, group, or class.
7.4. Collective Action: Constitutional Litigation
In Canada, constitutional rights litigation is an important avenue for advancing collective rights. Constitutional litigation, including litigation of the rights and freedoms protected by the Charter, proceeds according to general court procedures, civil or criminal, and can also arise in judicial review of decisions of administrative tribunals. Furthermore, administrative tribunals that have jurisdiction to apply the law are considered “courts of competent jurisdiction” and can apply the Charter and provide relief for constitutional infringements. Given the clear power of constitutional review granted to the courts in Canada, there is relatively little debate over the legitimacy of judicial review of laws and government actions. In addition, there is constitutional provision for a government to enact laws “notwithstanding” potential unconstitutionality. Outside of Québec, this provision has rarely been used, which further underscores the prevailing consensus in support of constitutional review.
The very nature of constitutional remedies means that cases brought by an individual can have a broad impact that affects a much larger group of individuals and potentially Canadian society as a whole. Section 52 of the Canadian Constitution provides for constitutional supremacy: “The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect.” In the constitutional context “law” has been construed to extend beyond statutes to other government actions. Section 24 of the Charter provides a further important enforcement mechanism:
Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.
The absence of a constitutional code of procedure means that constitutional claims face the same access to justice barriers as other types of civil litigation. Charter claims arise with relative frequency in the criminal context, partially because the onus is not on the claimant to bring the matter to court. Canadian courts, and particularly the Supreme Court of Canada, have developed a jurisprudence that facilitates constitutional litigation in the public interest. Three specific areas can be highlighted: standing, costs, and remedies.
The Canadian civil litigation system is premised on the norm of “private standing” or “standing as of right”. This means that individual litigants will come to court raising grievances personal to them: they are suing on their own behalf. Private standing has traditionally been viewed as the best way to operate our justice system because: it prevents mere “busybodies” from using up scarce judicial resources; it ensures contending points of view are raised by those personally invested in the case; and it preserves the proper role of courts and their relationship to the other branches of government.
Private interest standing is limited, especially in the context of constitutional litigation, where laws and policies can negatively impact a segment of society, not only a sole individual. Furthermore, negative effects often fall the hardest on members of vulnerable and/or marginalized groups in society, who are less likely to have the resources to initiate and carry out a litigation strategy. In those cases, public interest standing can be granted to external interested parties or civil advocacy organizations to litigate in the public interest.
Public interest litigation allows a person or organization to bring a case notwithstanding their lack of direct involvement in the matter, or any infringement of their personal rights. Public interest standing tends to arise when litigants want to challenge government actions with broad social effects, and therefore, is very important in Charter litigation. The Supreme Court of Canada has gradually expanded the basis for granting standing and in its most recent restatement specifically recognized standing as an access to justice issue and reduced the onus on prospective public interest litigants. This jurisprudence constitutes a significant step forward in increasing access to Charter litigation. The Court recognized that public interest litigants are crucial to realizing the Charter’s democratic potential because they can address the systemic impacts of the law on the most vulnerable people in a way that is not possible in individual litigation. The decision paves the way for addressing systemic issues through Charter litigation and it validates the importance of public interest litigation.
Canadian courts have also increased access to justice in public interest constitutional litigation by using their wide discretion over costs to develop creative costs awards. These include: the award of advance interim costs, where the defendants are ordered to pay the plaintiff’s costs during the litigation regardless of the outcome (in a highly restricted number of cases and with court supervision of the amount to be paid). Other types of cost awards that foster access to justice include: refusing to order costs against a losing Charter litigant, the award of costs at a higher scale to a winning Charter litigant “…as an instrument of policy to encourage access to justice”; and by awarding costs to pro bono counsel. Other funding mechanisms for public interest litigation are discussed in the next two sections. See also the earlier general discussions on costs in section 6 above.
A Canadian court has broad remedial powers under the Constitution to “craft any remedy that it considers just and appropriate under the circumstances,” but in doing so it must remain “…sensitive to its role as judicial arbiter and not fashion remedies which usurp the role of the other branches of governance.” The current remedial consensus in civil constitutional matters is to rely on declarations of invalidity, which provide the government actor the greatest scope to remedy an unconstitutional law, regulation or policy. Often declarations of invalidity are suspended for a specific period of time to allow decision-makers to act. Injunctive relief and the retention of jurisdiction by a court to ensure that unconstitutionality is rectified has been used sparingly by the Courts, but to great effect in specific cases, particularly with respect to enforcing rights of official language minorities. Canadian courts have also relatively recently granted modest damages for constitutional infringements. Stronger remedies are available in the criminal context, including the exclusion of evidence.
7.5. The Systemic Mandates of Community-Based Legal Clinics
Community-based legal clinics, discussed above in section 5, and advocacy groups play an important role in promoting collective rights in Canada. As a general rule, these organizations employ a three-prong strategy of law and regulatory reform and other types of advocacy, education and litigation. Systemic advocacy to reform laws, regulations and institutions is often the only effective way to eliminate recurring problems because they can get at the root causes of repeated and often routine legal issues.
In Ontario, many of these community-based legal clinics are publicly funded as an adjunct to the services provided by Legal Aid Ontario. Legal Aid Ontario also has a test case fund designed to advance an issue that extends beyond the interests of an individual client. Law foundations play a central role in directly funding these organizations in other provinces.
7.6. Federal Funding Programs
The Canadian government and several provinces created litigation funds to support Indigenous groups in litigation designed to protect and promote their collective interests. In Alberta, the current fund is designed to support Indigenous voices in legal actions that affect responsible resource development in Alberta and increased market access.
The Canadian government also funds the Court Challenges Program (the “CCP”), the objectives of which are to provide financial support to Canadians to bring before the courts test cases of national significance that aim to clarify and assert certain constitutional and quasi-constitutional official language rights and human rights. The CCP is administered independently of government, since governmental actors are usually defendants in the test cases. The origins of the program date back to 1978 at which time the CCP funded only cases brought on behalf of official language minorities. The program was expanded in 1985 when the equality rights provisions of the Charter came into effect. The CCP was eliminated in 1992 and re-established in 1994. From 1994-2006, the CCP funded 575 equality rights cases. The CCP was eliminated again in 2006 and the language rights section was reinstated in 2008 after litigation. In 2018, the CCP was expanded to provide funding for a range of Charter protections in addition to equality rights: freedom of religion, expression, association and assembly; democratic rights; and the right to life, liberty and security of the person.
8. PROFESSIONAL LEGAL ETHICS
As with much of Canada’s legal system, professional legal regulation is provincial in nature. Specifically, given Canada’s constitutional structure, the provision of legal services is regulated by provincial law societies. Each province and territory has its own independent, self-regulating law society, set up by provincial legislation. Through this legislative delegated authority, law societies – under the direction of boards of governors (typically called “Benchers”) – regulate who can practice law, what counts as the practice of law, what training is required for bar admission and after bar admission, what standards are required (typically through rules of professional conduct), and what conduct should be sanctioned and how. Even though some lay Benchers typically form part of law society governance structures, law societies are generally governed by lawyers (and where paralegals are permitted to practice, paralegal members as well).
As further discussed above in section 2.3, in addition to the provincial and territorial law societies, the Federation of Law Societies of Canada (FLSC) is an umbrella organization, the members of which are the provincial and territorial law societies. Without primary regulatory authority, the FLSC enjoys delegated authority to engage in policy and procedural matters that are of interest – at a national level – to all law societies. For example, the FLSC has developed policies on national mobility, the training and admission of foreign trained lawyers, a model code of conduct, etc.
Separate from law societies, which regulate lawyers and paralegals, Canada also has different national, local and other bar associations, which typically represent lawyers. These include, for example, the Canadian Bar Association, the Criminal Lawyers Association, the Indigenous Bar Association, etc. Although all lawyers must be called to the bar in a particular province or territory (and as such be a member of at least one law society), joining a bar association is voluntary. For further general commentary on the legal profession in Canada, see further section 2.3 above.
8.2. Rules of Professional Conduct
Each provincial law society has rules of professional conduct, which, among other regulations and by-laws, regulate the conduct of lawyers in Canada. Additionally, the FLSC has a non-binding Model Code of Professional Conduct. Law societies across Canada – in the interests of efficiency, uniformity and mobility – have sought to bring their own binding rules of conduct in-line with the FLSC Model Code of Professional Conduct.
8.3. Legal Ethics Courses at Law Schools
Law school curricula are generally governed by universities and law schools. However, because bar admission is regulated by law societies, certain competencies (as opposed to specific courses) are required for all law students seeking to become members of a law society. Those required competencies (e.g. competencies in problem solving and legal research, as well as in substantive knowledge areas including Canadian Administrative Law, Constitutional Law, and Criminal Law, among others), which are ultimately adopted by each provincial and territorial law society, have been set by the FLSC. In addition, the FLSC, as adopted by each law society, has determined that all prospective members of the bar must take at least one course on legal ethics. As such, all law schools in Canada have at least one mandatory stand-alone legal ethics course as part of their curriculum. The focus of those courses varies widely from law school to law school, with the primary emphasis of some on laws and rules, and with others on access to justice, diversity and professional identity.
8.4. Law School Codes of Conduct
Although law schools have discussed creating separate codes of conduct for law students, it is generally the case that students at law schools are governed by general university conduct policies, as supplemented from time to time by law school faculty council policies (student conduct, harassment, plagiarism, etc.).
8.5. Connection to Bar Admission Training, Exams, Oaths
There is a complex and evolving relationship between law schools and professional regulators in terms of legal education and training. As a general matter, law schools provide legal education, including the basic competencies required for bar admission eligibility. Provincial law societies set entrance standards, including bar admission exams, some required training, good character requirements, oaths, etc., all of which are required for bar admission. Formerly, law societies also required bar admission candidates to undertake significant amounts of post-law school bar admission training. More recently, in light of cost, overlap with law school courses, and efficiencies, much of that training has been reduced or eliminated in favour of self-study challenge exams. Further, provincial regulators still retain an apprenticeship requirement, typically called “articling”. Articling comes in many forms, but typically involves approximately 11 months or so of on-the-job work under the supervision of a lawyer or judge (in a firm, clinic, court, etc.). Although most candidates do complete an articling rotation, an alternative to articling in Ontario – the Law Practice Program (“LPP”) – was recently developed, largely in response to a shortage of articling positions (as well as a belief that the LPP could provide focused, efficient and accessible training, using a combination of actual and simulated client work and training). Finally, it must be acknowledged that an increasing number of bar admission applicants receive their law school training outside of Canada. In those cases, candidates must either enroll in a Canadian law school program or, more typically, successfully pass the FLSC’s National Committee on Accreditation (“NCA”) Process (which includes self-study challenge exams and, often, some law school courses).
8.6. Continuing Professional Development (“CPD”)
Once qualified, lawyers and paralegals are required – by provincial regulators – to complete annual CPD programs, including mandatory ethics and other programs. In Ontario, for example, requirements include 3 hours of professional responsibility, ethics and/or practice management related education, and 9 hours of other training.
8.7. Pro Bono
Canadian lawyers engage in a significant amount of pro bono work every year. Although not the only solution to current access to justice challenges, the pro bono work that lawyers, paralegals and law students deliver plays an important role in the legal profession’s efforts to improve access to justice in Canada.
8.8. New Legal Ethics Initiatives and Regulatory Developments
A number of significant initiatives and challenges are being explored and addressed by provincial regulators, including access to justice, diversity and inclusion, models of regulation, civility, cultural and indigenous competence, innovation, legal services delivery (as briefly mentioned above), technological competence, etc.
8.9. Support for External (Global) Code of Conduct or Oath?
Canadian lawyers engage in many different ways with international clients, international laws and norms, international organizations (including the International Bar Association) and the international community. Further, provincial regulators regularly look to examples from around the world when thinking about policy changes and regulatory reform. However, particularly given Canada’s collaborative regulatory work through the FLSC, there is no particular incentive – currently – for Canada to look externally for a global code of conduct or oath.
9. TECHNOLOGICAL INNOVATION AND ACCESS TO JUSTICE
9.1. Access to Technology in Canada
Canada had made a long-term commitment to closing the digital divide in Canada, a feat that is not to be underestimated given the geographic challenges of a large, sparsely populated country. At present, 85.7% of people living in Canada have access to broadband internet but this is true for only 40.8% of people living in rural communities. 99.35% of people across Canada have access to mobile LTE but these services are only available on 87.2% of major transportation roads and highways and in 96% of rural communities. Public libraries are an important access point for many individuals who do not have home access to a computer.
9.2. Technology in the Delivery of Non-Legal Public Services
There has been a remarkable increase in the range of government services that are now accessible online (e.g. finding and filling out forms, accessing records, chat services, online payments). Canada has also prioritized digital health and the “Canada Health Infoway”, with the goal that by 2022 every person living in Canada will have electronic access to their health and medical records and for “digitally delivered health services.”
9.3. Technology in the Practice of Law
Technology is used regularly by legal practitioners in both private, public, and not-for-profit settings. Technological innovations are proceeding at a rapid pace and many advances are being made outside of traditional types of legal practice by large legal services providers such as LegalZoom.ca. There is a significant range of legal information and advice services available online from legal aid organizations and other not-for profit public legal education providers. Community-based legal clinics and other legal advocacy organizations are using blogs and social media to both engage the pubic and gather information and support. For the most part, legal aid providers communicate electronically with their funders, the legal aid plans. Legal Aid Ontario launched its online client portal, a key part of its Digital Strategy, and saw 5,000 clients sign up in the first 20 days to receive documents, complete consents and authorize information through a secure, 24/7 online portal.
The CBA Legal Futures Initiative took a close look at how technology is affecting legal practice and is assisting lawyers with some of the challenges (e.g. cyber security, privacy, ethical and professional obligations when using technology to deliver legal services). A professional obligation to be technologically competent is emerging in Canada. The Law Society of Ontario established a Technology Task Force in 2018 and the Law Society of BC recently established a Future Task Force mandated in part to deal with these challenges.
9.4. Technological Innovation and Access to Justice
Inclusive technology solutions are integral to three main access to justice strategies: facilitating everyday justice, reinventing the delivery of legal services, and transforming formal justice. At the same time, careful planning is needed to prevent technological innovations from creating or reinforcing existing barriers to equal justice. Reaching Equal Justice highlighted this concern and the imperative of maintaining in person access points for people who require it.
Online platforms are key access points for individuals seeking help with the problems of everyday life. Technology is used to assist in referring people to appropriate services and to identify their eligibility for public services and to assist self-represented people. These platforms are becoming increasingly interactive, providing assistance to individuals to resolve issues and draft agreements. For example, MyLawBC developed and operated by the Legal Services Society provides a range of services to assist people to choose a legal pathway and develop an action plan, including two resolution tools (dialogue and mediation). HiiL was one of the partners in the development of this website. MyLawBC was updated based on online feedback and evaluation. Toll free phone lines continue to play an important role in the provision of legal information and advice, particularly in rural and remote areas.
Technology is also being employed in the ADR context. As noted both above (sections 3.2, 6.3) and below, the BC Civil Resolution Tribunal (CRT) is Canada’s first online tribunal. The CRT has jurisdiction in the following matters: motor vehicle injury disputes up to $50,000, small claims disputes up to $5,000, strata property (condominium) disputes of any amount, societies and cooperative associations disputes of any amount and shared accommodation and some housing disputes up to $5,000. The website provides a four-step process: (1) legal information provision and tools and assistance in finding and completing the right application form for the given dispute; (2) access to a platform for secure and confidential negotiation through which the parties can try and reach an agreement; (3) if negotiation fails, a manager can provide a neutral evaluation of the dispute to help the parties reach an agreement (agreements can be turned into court enforceable orders); and (4) if an agreement cannot be reached, an independent CRT member will make a decision about the dispute (also enforceable like a court order).
Courts and administrative tribunals are also integrating technology to facilitate access to justice. Progress with electronic court initiatives varies widely across the country. Generally-speaking tribunals have led the way with these innovations but courts are now making some progress (particularly since the Spring 2020 COVID-19 pandemic). Some (of many) recent court innovations include:
- In BC, the Have a Judge / Need a Judge scheduling tool facilitates access to provincial court judges whose cases had resolved, leaving open time in their schedule. Video-conferencing allows these judges to hear cases in other courthouses, avoiding delays or backlogs.
- Manitoba courts have expanded the use of technology to make processing traffic tickets and provincial offences more efficient.
- Newfoundland’s Central Registry of Divorce Proceedings is fully digitized and St. John’s court registries were combined, making it quicker and easier to get information or schedule legal matters.
- A 20-year contract was signed to digitize and maintain an electronic Land Titles Registry in the Yukon.
- E-filing is now available in BC’s Court of Appeal.
- Several provincial courts now publish regular Time to Trial
- Further, many formal and informal innovations – particularly including technology, courts and tribunals – are emerging in light of the Spring 2020 COVID-19 crisis. As discussed further in section 13 below, among other innovations, these include an increased range of e-filing options and some virtual hearing options (including trials in some circumstances). In addition, provincial governments and law societies have increased the availability of remote commissioning for various documents.
Looking further ahead, the Cyberjustice Laboratory at the Université de Montréal has initiated Autonomy through Cyberjustice Technologies (ACT), the largest international research project that aims to increase access to justice through artificial intelligence. Over the next five years ACT will take an inventory of existing technology and canvass situations where AI is used in the justice system, evaluate its impact through case studies, develop a body of best practices and establish a governance framework to ensure the fair use of artificial intelligence in the justice system.
9.5. Collaboration with Internationally-Focused Organizations
The Legal Services Society of BC worked with the Hague Institute for Innovation of Law (HiiL) on some recent initiatives, including the development of MyLawBC. Other organizations, like the Action Committee and the Canadian Forum on Civil Justice, among others, continue to collaborate with various international organizations, including, among others, Pathfinders, the OECD, etc. (see further section 12 below).
10. UNMET LEGAL NEEDS
10.1. Nation-Wide Unmet Needs Studies
Studies on both criminal and civil legal needs have been carried out in Canada. There has been one national study of unmet need for criminal legal aid and 4 legal problems or needs surveys. The program of research in criminal legal needs was a policy research program conducted by the Department of Justice. The DOJ contributes to criminal legal aid delivered by the provinces and territories. Unmet need was a policy issue and the results of the research had a direct impact on legal aid. The research program consisted of 8 separate studies: unrepresented accused in 9 criminal courts, advice at arrest and detention, financial eligibility guidelines, legal aid in rural and remote areas, needs of Aboriginal people, needs of speakers of English or French in minority situations, needs of women and the needs of immigrants, refugees and visible minorities. The research supported a federal policy initiative that was successful in gaining a $60 million increase on a base of $85 million in federal spending on criminal legal aid over three years.
Legal problems surveys in civil justice were carried out by the Department of justice in 2004, 2006 and 2008 and in 2014 by the Canadian Forum on Civil Justice.
Results of national legal problems surveys in Canada are set out in the following table:
|Percent of the Population 18 Years of Age and Over with One or More Problems Showing Confidence Intervals|
|2004; n=4,501||2006; n=6,665||2008; n=7,002||2014; n=3,263|
|Fifteen Problem Categories||47.7%
|Sixteen Problem Categories, Neighbourhood Problems Added||54.6%
|Seventeen Problem Categories, Crime Added||48.4%
The legal problems surveys produced highly consistent results. About one-half of all adult Canadians reported having experienced one or more legal problems, only a small percentage used any part of the formal justice system to resolve the problem, about half of all people resolved the problem within the 3-year time frame used by the studies, the majority of people with problems that have been resolved considered the outcome to be unfair and almost half of this group felt they had achieved little or nothing of the outcome they had expected.
All four legal needs studies have reflected the everyday legal problems perspective that is becoming widely adopted in Canada as the dominant perspective on legal problems, legal need and access to justice. The results of the research have informed the development of a people-centered approach to meeting the legal needs of the public in Canada. The final report of the influential National Action Committee on Access to Justice in Civil and Family Matters takes a more expansive view of access to justice, moving beyond the formal justice system focussing on the broad range of problems experienced by the public not adjudicated in the courts.
10.2. Is Help Available to All Who Need It?
The answer is a qualified “yes” for criminal legal aid. In criminal matters, the trigger point for legal aid is an arrest, criminal charge or a court appearance. Advice upon arrest and detention, known in Canada – as mentioned above – as Brydges duty counsel is in theory universally available. Duty counsel is available in criminal courts. At a minimum traditional “facilitating” duty counsel is available to assist with the plea and bail, and to move matters to the next appearance. Advice is available from PLE organizations and advocacy groups such as the John Howard Society and Elizabeth Fry Society for accused persons who are not detained. However, it is not clear that people in this situation are aware that information or advice is available from these sources.
Legal aid in which a solicitor-client relationship exists is limited by financial eligibility and coverage provisions (see section 5 above). Legal aid financial eligibility guidelines are low, normally set approximately at poverty levels (which excludes some accused persons with incomes above the poverty level but not sufficient to pay for legal representation). Further, coverage provisions are narrow. Generally, legal aid is available for people at risk of imprisonment. This leaves some first-time offenders and others not at risk of imprisonment without legal aid, even though they may have a good defence.
Data supplied by the legal aid plans reveal that about 84% of applications for criminal legal aid are approved. In 2013-14 there were 317,603 applications for criminal legal laid in Canada, 267,763 (84.2%) were approved. However, there is an unknown amount of pre-screening in initial telephone contacts or by information provided by duty counsel that would increase the amount of unmet need shown in official data.
Within the legal aid system, in 2013-14 there were 400,340 applications for civil legal aid, 197,593 (49.4%) were approved. The screening mechanisms noted above in criminal legal aid also occur in civil and would similarly inflate the likely amount of unmet need.
Other data suggest the existence of a considerable amount of unmet need. Research on unrepresented accused in family matters suggests that legal aid is limited. It has been estimated that litigants are unrepresented in 64% to 74% in family law matters at first filing and 40% to 54% of family matters overall.
Legal aid is available in civil matters but the gap between unmet legal need measured by legal needs studies and legal aid is great. Legal aid does not come close to meeting the level of unmet need identified in legal needs studies. This is because legal aid is built in part on the traditional court-based needs model. Legal needs studies are based on the propositions and assumptions of the everyday legal problems research paradigm. Therefore, much of the legal need evident from legal needs studies falls outside the scope of most legal aid providers. Also, constraints on financial eligibility and coverage limit accessibility to legal aid. A partial exception is the Ontario community legal clinics that have broader mandates and some independence to identify unmet legal need and provide assistance.
10.3. Legal Services Available Country-Wide
Legal aid for criminal matters is more-or-less uniformly available everywhere, although the use of circuit courts in remote areas limits the quality of service. Coverage for civil matters varies from one legal aid plan to the next, making availability very uneven.
PLE is widely available throughout the country. The degree to which people make use of the assistance available is an important consideration. In general, outside of the obligatory or compelling nature of the criminal justice system, people tend to be reactive to the everyday legal problems they experience, often not seeking help until the situation is at the crisis stage. In addition, it is well-established in the research that people often do not recognize the legal aspects of the everyday problems they experience and therefore do not seek appropriate assistance. The amount of assistance that is available will not meet the extant hidden unmet need until legal and access to justice services make progress in building legal services based on effective outreach.
Examples of recent innovative projects in Canadian legal aid building service delivery on outreach are in legal health check-up experiments involving several community legal clinics in southwestern Ontario, which, as discussed below, involved legal aid clinics partnering with community organizations to identify unmet need. In three community legal clinics in southwestern Ontario, legal secondary consultation – in which legal clinics developed arrangements with community organizations and service agencies already serving the disadvantaged people – provides the organizations with legal assistance helping them to better serve their own clients. Mobile outreach service in a rural county in southwestern Ontario provided an access point for people to identify legal problems they were experiencing and obtain referrals for assistance. An outreach program consisting of weekly one- and half-day satellite clinics at 8 locations served high volumes of disadvantaged people in a medium sized industrial city. Health-justice partnerships between a community legal clinic in southeastern Ontario and several community health partnerships were developed. On a province-wide scale using digital technology, the Legal Services Society of British Columbia has successfully implemented its MyLaw program. Modelled on version of the ground-breaking Rechtwijzer project in the Netherlands, MyLaw provides on-line guided pathways assisting people to find the help they need with several types of legal problems.
10.4. Places Where Laws are Not Enforced
There are no large regions of the country controlled by organized non-state actors in which the laws of the state are not enforced. As discussed above (section 2), given Canada’s hybrid justice system, different laws, traditions and practices apply in different regions of the country.
11. PUBLIC LEGAL EDUCATION
11.1. Background and History
Public legal education (PLE) has a long history in Canada, emerging in the late 1960s and early 1970s in response to the social reform movement of that era. PLE was part of the same social justice movement that gave rise to legal aid and shared the same broad objectives. Throughout the 1970s a national PLE presence was found through the Canadian Law Information Council (CLIC). CLIC was primarily involved in publishing court judgements, although the organization included a small but active public legal information section. At the provincial level, a clinic within the Legal Aid Ontario community Legal Clinic system, Community Legal Education Ontario (CLEO), played a central role providing PLE material to other community legal clinics and, more recently, has become an influential centre for research and innovation in PLE. Otherwise, in the early years of PLE in Canada, PLE organizations were concentrated in British Columbia. These were the People’s Law School, B.C. Legal Services Society (including PLE and legal aid), and the Law Courts Education Society, currently the Justice Education Society. Again, on a national level, PLE was part of the national Native Court Worker program, administered by the federal Department of Justice.
In 1984 a national initiative by the federal Department of Justice established one sole-purpose PLE organization in each province and territory. At present these organizations still exist. In varying degrees from one province to the next, the sole-purpose PLE organizations have played a significant role in expanding networks of organizations providing PLE to a great many. Government departments at all levels that provide services to the public typically distribute PLE materials in their areas of service.
The 74 community legal clinics in the LAO system have PLE has a core mandate. The clinics provide PLE in a variety of formats in the areas of law within which they provide service. PLE of a more general nature, for example, aimed at self-representing litigants and people appearing before administrative tribunals is also distributed by the clinics. Similarly, PLE organizations, government services and a variety of voluntary service organizations provide information about a wide variety of legal issues (employment, housing, family law) and about court processes and appearing in court. Information is provided in different languages and formats. Information about legal aid is also provided, although legal aid plans provide public information about the availability of legal aid. In Ontario, a Law Foundation study identified hundreds of organizations providing approximately 1,700 different PLE products.
PLE has undergone an evolution in Canada. In the early years, before the beginnings of the national government-funded legal aid system, PLE and legal aid were close aspects of service delivery in the early progressive student clinics, and in British Columbia, where the Legal Services Society formed in the mid-1970s (an amalgamation of separate PLE and legal aid organizations). When substantial federal government funding for criminal legal aid and later civil legal aid attracted the interests of provincial and territorial governments and the legal profession, legal aid and PLE became more organizationally separate. The line between legal information and legal advice, previously recognized, became a hard boundary. PLE organizations were extremely cautious about maintaining the information-advice boundary. The results of the contemporary body of legal problems research have begun to soften that boundary.
One of the main legacy results of legal problems research has been an acknowledgement that legal problems grow out of the everyday problems experienced by the public. Rather than being viewed as purely legal in nature, legal problems have come to be viewed in a more holistic manner, as combinations of interconnected legal and non-legal problems. Sometimes there are more appropriate ways to deal with legal problems than using legal means. Sometimes the most effective and durable resolutions to “legal” problems are holistic and integrated approaches involving combinations of legal and non-legal strategies.
Overall, this has encouraged PLE to adopt problem-solving approaches rather than more narrowly providing information about the law and how the legal system works. It has further created a much wider role for PLE in addressing legal problems, recognizing the traditional divide between legal information and legal advice but, at the same time, assisting people with non-legal aspects of problems that a decade ago would not have been recognized as other than a legal issue abstracted from the way in which people experience legal problems in their everyday lives. Further, this recognizes, more broadly, that in modern bureaucratic societies with extensive regulatory regimes virtually all activities are legally regulated in one way or another.
As noted earlier, CLEO is playing a central role in the evolution of PLE in Canada, carrying out research and innovation in the extent to which non-legal service providers can assist people with legal problems within the framework that legal problems are now understood in mainstream legal research and policy discourse. Recognizing that community legal workers are still concerned about crossing the boundary, Professor David Wiseman from the Faculty of Law at the University of Ottawa and Julie Matthews, Executive Director of CLEO, are carrying out research about how legal workers can perform some tasks more traditionally associated with lawyering.
11.2. PLE in School Curricula
PLE organizations have, since the beginning, encouraged schools to include PLE in the regular curriculum. They have made presentations in schools and provided legal information material that could be used as part of units in the regular curriculum. This activity has been widespread since the 1990s when PLE organizations had become well-established throughout Canada.
11.3. Plain Language
During the late 1980s and 1990s the PLE policy unit at the federal Department of Justice, along with PLE organizations in the provinces, played a major role in building the plain language movement in Canada. The recognition of the need for plain language legislation and documents and, more broadly, the plain language movement has now become very widespread.
PLE organizations produce a large amount of plain language summary material about a very wide variety of legal issues experienced by the public; for example, bankruptcy, divorce or representing one’s self in court. It is very likely that a majority of the population could comprehend this material. PLE organizations in Canada produce materials targeted at different age groups, in different formats and in different languages. This substantially enhances accessibility and comprehension.
11.4. Awareness Campaigns about Legal Aid
Legal aid plans and PLE organizations have routinely and for many years produced information about the availability of legal aid. Specifically, with regard to criminal legal aid, judges and duty counsel lawyers normally inform unrepresented accused about the availability of legal aid. There have been few dedicated government public information campaigns promoting legal aid. The Canadian Bar Association has for many years produced regular public information about underfunding and the limited access to legal aid in Canada. Also, the CBA has produced landmark studies in a long-standing campaign to improve access to legal aid in Canada.
One example shows how an effective public awareness campaign can run headlong against the budget constraints typical of legal aid. In November 2007, the Legal Services Society in British Columbia launched a public awareness campaign using advertisements on television and on local buses. The response created a sharp increase in applications for legal aid in 2008-2009. LSS was unable to meet the demand and subsequently altered eligibility requirements.
11.5. Public Awareness of Legal Aid
There are no recent, publicly available data on knowledge about legal aid among the general public. In one small study of a mobile legal services project that is currently underway in a rural area of Ontario, 25% of people stopping by a mobile legal van said they were familiar with the legal aid clinic operating in that area. On a national basis, in 2013- 2014, all legal aid plans in Canada received a total of 400,340 applications for civil legal aid. This is almost certainly an under-estimate because an unknown amount of informal screening is known to take place when people make initial inquiries, often by telephone.
Research carried out by Trevor Farrow and the Canadian Forum on Civil Justice using street interviews and focus groups showed that people think legal aid is much more widely available than what is actually the case. Further, they view access to legal help in broad social justice terms rather than bound by conventional categories of law.
12. GLOBAL EFFORTS ON ACCESS TO JUSTICE
12.1. Global, National and Regional Efforts to Promote Access to Justice
The last several years have seen a significant increase in the international community’s attention to the access to justice crisis, and in turn, to access to justice initiatives.
In Canada, significant efforts have been made over the past number of years to address growing concerns about access to justice. At the national level for example, as discussed further above, the Canadian Bar Association undertook a major access to justice project in 2013. Further, the former Chief Justice of Canada championed the creation of a national, collaborative and coordinated access to justice organization – the Action Committee on Access to Justice in Civil and Family Matters – designed to address access to justice challenges and solutions.
It would not be an overstatement to say that all institutional players in Canada’s justice system – courts, tribunals, governments, regulators, bar associations, universities, NGOs, etc. – are all looking at ways to improve access to justice in Canada.
12.2. Collaboration with Other Regional or Global Access to Justice Initiatives
As part of the Action Committee’s efforts, regional access to justice collaborative groups have formed in Canada over the past five years. Those groups – variously made up of judges, lawyers, academics, government representatives, regulators, NGOs, members of the public and others – are designed to energize and coordinate access to justice initiatives that are appropriate for and responsive to local needs and challenges. As discussed further in section 4 above, the Action Committee has developed and promoted a set of “Justice Development Goals”, designed to help catalyze and coordinate regional and local access to justice initiatives and innovations. Many of these efforts are designed, in addition to their local impact, to fit with regional and global access to justice reform efforts, including the United Nations’ SDG 16.
12.3. NGO (and Other) Collaborations on Access to Justice
Various NGO, academic and other non-governmental organizations and initiatives form an important part of the overall Canadian access to justice reform movement.
12.4. National Efforts on SDG 16.3
As mentioned above, many national access to justice initiatives line up with and promote Canada’s efforts behind the United Nations’ SDG 16.3. Additionally, the Federal Government is also committed to improving access to justice by supporting efforts to help promote and achieve the United Nations’ SDG 16.3 (among other SDGs).
Taken together, many individuals and institutions working within the Canadian justice community are making significant contributions to efforts to improve access to justice within Canada, as well as to the international community’s increasing efforts to improve access to justice for the billions of people around the world who do not have adequate access to justice. Good work is happening; although clearly much more needs to be done.
13.1. Access to Justice
As discussed in several sections above (see e.g. sections 4, 6, 9, and 12, among others), access to justice is both a major problem and a major focus of attention in Canada. All justice system players are actively looking for ways to improve access to justice. A number of reports and initiatives have identified many challenges, and Canada is now moving into the next phase of trying to address these challenges, particularly from a user perspective. These current efforts, building on earlier reports and initiatives, have recently been identified as a “2.0” access to justice moment in Canada.
One particularly important national initiative in Canada – perhaps the most unique, and one that has received considerable international attention – is the work of the Action Committee on Access to Justice in Civil and Family Matters. Its multi-stakeholder and multidisciplinary approach, its user-focussed outlook, its target-based plan, and its justice development goal reporting provide a very promising strategy, not only for understanding current challenges, but for taking action for meaningful change. The work of the Action Committee has received high level support from all sectors of the justice community.
Overall, the shifts in Canada’s justice sector around access to justice efforts are showing very positive early signs of change.
13.2. Legal Aid
As further developed in section 5 above, Legal aid in Canada has been a relatively stable system over a long period of time. Because financial eligibility guidelines are too low to include all people who cannot afford counsel and coverage is too narrow to include all the problems experienced by the public, many would rightly describe funding for legal aid in Canada as significantly inadequate (and often uneven from province to province). However, in several jurisdictions, the growth of expenditures over the decades (at least until very recently in Ontario) provides some positive evidence of ongoing support by the federal, provincial and territorial governments for legal aid over the long term.
Government taking primary responsibility for funding legal aid has been a long-standing objective of the access to justice movement. Canada is a good example of a country having somewhat achieved that objective. However, the stability of legal aid as a national system and the significant limitations relating to accessibility are major trade-offs inherent in government funding. Governments have shown a relatively long-term commitment to legal aid (subject to comments below), although the commitment may have changed in character from the idealism of decades ago. Legal aid is perceived to be essential for the functioning of the courts as well as a mechanism for providing access to justice. On the other hand, legal aid has not been a policy priority within governments when competing with areas of public policy such as health care or law enforcement. The idealist and enthusiastic support for legal aid that may have existed at the outset has given way to a more bureaucratic expression of inclusion in government budgeting and program management. Funding has typically increased in a slow, steady and modest manner within the normal restraints of government budgeting processes. There have been relatively few instances of dramatic budget cuts or decreases in the history of legal aid in Canada. Having said that, where massive cuts were imposed in British Columbia in the early 2000s, the human costs were dire and long term consequences for individual families and the justice system are yet to be fully addressed. Further, significant cuts occurred in 2019 in Ontario, and the implications are still yet to be fully understood. As such, there are dangers that exist in government funding. As these experiences in British Columbia and Ontario (among other jurisdictions) demonstrate, there will be occasional cuts and freezes as governments struggle to control budgets during periodic recessions and shifts in political preferences. Given its importance to access to justice, legal aid should never be taken for granted.
Further, it must be recalled that the federal government eliminated funding for civil legal aid in the mid-1990s. Legal aid funding was a very small component of a large federal transfer program, the CAP (discussed further above in section 5), that was eliminated in a government-wide effort to reduce the federal budget deficit. Legal aid itself was not targeted for a funding cut. Rather, it was swept up in a much larger budget reduction initiative in which the government eliminated programs that did not support federal policy issues. The result, however, was a significant reduction of civil legal aid services in many provinces and greater disparity between access to civil legal aid across the country. Second, nowhere in Canada is the right to legal aid guaranteed by statute. This is a potential vulnerability. Finally, as mentioned above, underfunding for legal aid has been a perennial issue. The legal profession, through the Canadian Bar Association and other professional organizations, have long held the view that legal aid in Canada is underfunded.
It is somewhat difficult to generalize since legal aid in Canada is funded directly by 13 separate provincial and territorial governments, each of which makes independent funding decisions based on economic conditions that can vary considerably from one part of the country to another. As well, as mentioned above in section 5, the federal government contributes to provincial and territorial funding for criminal, immigration and refugee legal aid. Overall, the national picture has been one of slow and somewhat steady growth of government funding for legal aid. A longstanding objective of the legal aid movement has been to convince governments to accept responsibility for legal aid funding. This has been the case in Canada and legal aid has been relatively stable. Although unmet need has been a constant, the Canadian situation provides a good example of the benefit of government as the primary source of funding for legal aid.
As mentioned above (section 9), the COVID-19 pandemic has forced all players in Canada’s justice sector to respond, in real-time, to the challenges created by this global crisis. Given Canada’s division of powers (discussed earlier in section 2), there has been a remarkable amount of cooperation among the various justice system players and levels of government. Changes that once seemed very challenging or out of reach have been made with relative ease and broad-based support. For example, increased e-filings, remote hearings and other initiatives are just a few of the many developments that have occurred over a very short period of time. Limitation and filing deadlines have been altered or suspended during the crisis, and rules around remote commissioning have been altered. Further, some pro bono legal services are now available for front line workers during the pandemic. Law societies, law firms, and other organizations are also looking at innovative ways to understand and respond to the crisis.
Further, legal aid clinics and other organizations are quickly responding to the COVID-19 pandemic. For example, in Ontario, Community Legal Education Ontario (CLEO) has produced information about government support programs, making these widely available to the other clinics in Ontario, to civil society organizations, and to the public generally. While generally limiting requests for service to email and phone, legal clinics are monitoring requests to develop a picture of the new needs that are emerging. Using their outreach capacity through community partnerships, some clinics have begun to consult with intermediary groups to learn about the problems facing various groups, thus laying the groundwork for collaborative responses to emerging legal needs and justice problems.
As others have also noticed, we can use the COVID-19 crisis as a catalyst for meaningful innovation and change for improved access to justice. According to Trevor Farrow, “there are going to be numbers of sectors of society, including universities, including law firms and including courthouses that are going to learn significant lessons from responses to this pandemic.”
There is significant domestic and international attention on the supply-side of this issue: the many new initiatives that are being provided by various sectors of the justice system in response to the COVID-19 crisis. What is slightly less well understood, but perhaps even more important, is the demand-side of the issue: how are legal problems changing in light of COVID-19 and what do people need? For example, we know that unemployment numbers are way up, there are early indicators that domestic violence is increasing (given physical isolation), and there are serious concerns being raised that people – particularly vulnerable populations and those without easy access to technology – are not able to access legal services. All of this needs to be further explored in order to better understand changing needs and to better develop and match services to those needs. In short, there has never been a more pressing need for evidence-based policy making and reform.
The good news is that people are alive to the issue and innovations are being explored. What remains to be seen is how far this innovation trend will go, and how lasting the changes will be. All current signs indicate that most members of the Canadian justice system are excited about the current initiatives. In terms of their durability, the current Chief Justice of the Ontario Superior Court of Justice recently stated that, with respect to recent changes around e-hearings and e-filings, “…we cannot go back.” As others have stated, “it can’t be business as usual”. Time will tell on all of these considerations.
It has been over 20 years since the Canadian Bar Association published its Systems of Civil Justice Task Force report; and it has been a little less than 10 years since the Canadian Bar Association published its Reaching Equal Justice report and the Action Committee published its Roadmap for Change report (all discussed in various sections above). Although much more is needed, there is also a growing body of research in Canada on various aspects of access to justice (as also discussed in various sections above). Canada has significant knowledge and experience – not just about access to justice problems but also about potential access to justice solutions – that now form part of a growing body of international access to justice research and literature.
However, notwithstanding all of these recent efforts and initiatives, forthcoming research and recent international reports confirm that there is still a significant gap between current justice needs and affordable justice solutions. Collaborative initiatives like this Global Access to Justice Project will help to bridge this access to justice gap.
 The authors are grateful for research assistance from Stacey Weltman (JD), Osgoode Hall Law School.
 Data Source: IMF World Economic Outlook, April 2019.
 UNDP, Human Development Indices and Indicators, 2018 Statistical Update, Table 4, at 34.
 Statistics Canada, “Dimensions of Poverty Hub” (24 February 2020), online: Government of Canada, Statistics Canada <https://www.statcan.gc.ca/eng/topics-start/poverty>.
 Department of Justice Canada, Electronic Communications, “Indigenous Justice Program” (16 December 2019), online: Government of Canada, Department of Justice Canada, Electronic Communications <https://www.justice.gc.ca/eng/fund-fina/acf-fca/ajs-sja/index.html>.
 Canadian Charter of Rights and Freedoms, Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11.
 “Faith-based (religious) family arbitration”, online: Faith-based (religious) family arbitration – Ministry of the Attorney General
 Department of Justice, “The judicial structure” (16 October 2017), online: About Canada’s System of Justice <https://www.justice.gc.ca/eng/csj-sjc/just/07.html>.
 For more information, see e.g. Provincial Court of British Columbia, “Specialized Courts”, online: <https://www.provincialcourt.bc.ca/about-the-court/specialized-courts>.
 There are two law societies in the province of Québec: the Barreau de Québec, which regulates lawyers, and the Chambre de notaires du Québec, which regulates notaries.
 For more information, and as further discussed below in section 8, see “National Mobility Agreement”, online: FLSC <https://flsc.ca/national-initiatives/national-mobility-of-the-legal-profession/>.
 See e.g. “Alternative Business Structures”, online: Law Society of Ontario <https://lso.ca/about-lso/initiatives/closed-initiatives/alternative-business-structures>; Michael Lucas, Alternative Business Structures in the Legal Profession: Preliminary Discussion and Recommendation (2011).
 Federation of Law Societies of Canada, Statistics 2017, online: FLSC <https://flsc.ca/wp-content/uploads/2019/04/2017-Stats-Report.pdf>.
 See further the discussion below in Section 6, Costs and Fees.
 See for example the Law Society of BC’s work on “Unbundling Legal Services”, online: LSBC <https://www.lawsociety.bc.ca/our-initiatives/legal-aid-and-access-to-justice/unbundling-legal-services/>.
 Canadian Bar Association Access to Justice Committee, Reaching Equal Justice: An Invitation to Envision and Act (Ottawa: Canadian Bar Association, 2013) [Reaching Equal Justice] at 103-106.
 For more information about the scope of practice of licensed paralegals in Ontario, code of conduct and other details, see online: LSO <https://www.lso.ca/paralegals/about-your-licence/paralegal-regulation-resources>.
 For details about the scope of practice of paralegals in BC, see online: LSBC <https://www.lawsociety.bc.ca/support-and-resources-for-lawyers/law-office-administration/paralegals/>.
 See further discussion below in Section 6, Costs and Fees; and Section 10, Unmet Legal Needs.
 See further discussion below in Section 6, Costs and Fees.
 Jamie Baxter and Albert Yoon, “No Lawyer for a Hundred Miles?: Mapping the New Geography of Access of Justice in Canada” (2014) 52:1 Osgoode Hall L J, online: Osgoode Hall Law School Digital Commons <https://digitalcommons.osgoode.yorku.ca/cgi/viewcontent.cgi?article=2791&context=ohlj>.
 “Rural Education and Access to Lawyers Initiative”, online: LSBC <https://www.lawsociety.bc.ca/becoming-a-lawyer-in-bc/admission-program/articling-centre/rural-education-and-access-to-lawyers-initiative/>.
 Department of Justice, “The judicial structure” (16 October 2017), online: About Canada’s System of Justice <https://www.justice.gc.ca/eng/csj-sjc/just/07.html>.
 “Supernumerary and Retired Judges” (25 August 2018), online: The Canadian Superior Courts Judges Association (CSCJA) <http://www.cscja.ca/about-us/constitution/supernumerary-and-retired-judges/>.
 Government of Canada, Office of the Commissioner for Federal Judicial Affairs, Number of Federally Appointed Judges as of January 7, 2020, online: Government of Canada <https://www.fja.gc.ca/appointments-nominations/judges-juges-eng.aspx>.
 Please note that 3 new judicial positions were added to the Federal Court due to the passing of recent legislation.
 Andrew Griffith, “Diversity among federal and provincial judges” (5 May 2016), online: Policy Options <https://policyoptions.irpp.org/2016/05/04/diversity-among-federal-provincial-judges/>.
 “‘State of continual crisis’: Alberta Crown prosecutors overworked, understaffed”, CBC News (12 December 2019), online: CBC <https://www.cbc.ca/news/canada/edmonton/alberta-crown-prosecutors-justice-government-1.5393024>.
 Provincial Court of British Columbia, “Criminal Case Flowchart”, online: <https://www.provincialcourt.bc.ca/downloads/criminal/Criminal-Flowchart.pdf>.
 Michael Jackson, “Locking Up Natives in Canada” (1989) 23:2 UBC L Rev 215, online: UBC <https://commons.allard.ubc.ca/cgi/viewcontent.cgi?article=1027&context=emeritus_pubs>.
 UN Human Rights Committee (HRC), Concluding observations on the sixth periodic report of Canada, 13 August 2015, CCPR/C/CAN/CO/6, at para 18, online: <https://www.refworld.org/docid/5645a16f4.html>.
 R. v. Jordan,  1 SCR 631.
 Department of Justice Canada, “Legislation marks the next step in transforming the criminal justice system” (21 June 2019), online: Canadaca <https://www.canada.ca/en/department-justice/news/2019/06/government-of-canada-announces-criminal-code-reforms-to-modernize-the-criminal-justice-system-and-reduce-delays.html>.
 See for example, Heller v. Uber Technologies Inc., 2019 ONCA 1.
 See Reaching Equal Justice (Ottawa: Canadian Bar Association, 2013).
 P.C. Weiler, “Protecting the Worker From Disability” (1983).
 Peter Leveque, “Exploring the Domain of Accident Law: Taking the Facts Seriously by Don Dewees, David Duff & Michael Trebilcock” (1997) 35:4 Alberta L Rev 1129.
 Kim Lunman, “B.C. cabinet rejects smoking ban” The Globe and Mail (30 August 2001). The Board had adopted regulations banning smoking in the workplace in 1997.
 Crowder v. British Columbia (Attorney General), (2019) BCSC 1824.
 Federal Child Support Guidelines, SOR/97-175, online: Government of Canada <https://laws.justice.gc.ca/eng/regulations/SOR-97-175/index.html>.
 Government of Canada, Department of Justice, Children Come First: A Report to Parliament Reviewing the Provisions and Operation of the Federal Child Support Guidelines – Volume 1, online: Government of Canada <https://www.justice.gc.ca/eng/rp-pr/fl-lf/child-enfant/rp/v1/v1_1.html>.
 Government of Canada, Department of Justice, Spousal Support Advisory Guidelines, online: Government of Canada <https://www.justice.gc.ca/eng/fl-df/spousal-epoux/ssag-ldfpae.html>.
 See e.g. Trial Lawyer’s Association of BC and Canadian Bar Association (BC) v. British Columbia (Attorney General), 2014 SCC 59.
 World Justice Project, Rule of Law Index 2019, at 56, online: <https://worldjusticeproject.org/sites/default/files/documents/ROLI-2019-Reduced.pdf>. See the World Justice Project website for the most up-to-date data.
 See Reaching Equal Justice (Ottawa: Canadian Bar Association, 2013) at 34, 144-145. For some important recent research initiatives, see e.g. the work of the Canadian Forum on Civil Justice, online: CFCJ <https://cfcj-fcjc.org/>.
 For an overview see: Lawyers’ Rights Watch Canada, “The Right to Legal Aid: Submission to BC Legal Aid Services Review” (22 November 2018), online: <https://www.lrwc.org/the-right-to-legal-aid-submission-to-bc-legal-aid-services-review-report/>.
 UN Committee on the Elimination of Racial Discrimination (CERD), UN Committee on the Elimination of Racial Discrimination: Concluding Observations, Canada (25 May 2007), CERD/C/CAN/CO/18, at para 26, online: <http://www.refworld.org/docid/465fe0082.html>.
 UN Committee on the Rights of Persons with Disabilities (CPRD), Concluding observations on initial report of Canada, UN Doc. CRPD/C/CAN/CO/1 (8 May 2017) at paras. 15, 33(b), online: <https://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?symbolno=CRPD%2fC%2fCAN%2fCO%2f1&Lang=en>.
 Human Rights Council (HRC), Report of the Working Group on the Universal Periodic Review, UN Doc. A/HRC/39/11 (11 July 2018) at paras. 142.106, 142.107, 142.112, 142.190, 142.239, online: <http://ap.ohchr.org/documents/dpage_e.aspx?si=A/HRC/39/11>; HRC, Report of the Working Group on the Universal Periodic Review, UN Doc. A/HRC/24/11 (28 June 2013) at paras 128.54, 128.998, 128.102, online: <http://www.refworld.org/docid/52271e254.html>.
 Action Committee on Access to Justice in Civil and Family Matters, Access to Civil & Family Justice: A Roadmap for Change (Ottawa: Action Committee, 2013) [Roadmap for Change], online: CFCJ <https://www.cfcj-fcjc.org/sites/default/files/docs/2013/AC_Report_English_Final.pdf>.
 Melina Buckley, “A National Framework for Meeting Legal Needs: Proposed National Benchmarks for Public Legal Assistance Services”, online: <https://www.cba.org/CBAMediaLibrary/cba_na/PDFs/LLR/A-National-Framework-for-Meeting-Legal-Needs_Proposed-National-Benchmarks.pdf>.
 See online: CBA <http://www.cba.org/CBA-Equal-Justice/Resources/Legal-Health-Checks>.
 See Action Committee on Access to Justice in Civil and Family Matters, Access to Civil & Family Justice: A Roadmap for Change (Ottawa: Action Committee, 2013).
 See supra. See also Justice Development Goals, online: <http://www.justicedevelopmentgoals.ca/>. See further Trevor C.W. Farrow and Lesley A. Jacobs, eds, The Justice Crisis: The Cost and Value of Accessing Law (Vancouver: UBC Press, forthcoming 2020).
 Some of the information contained in this section is also discussed elsewhere.
 See New Brunswick (Minister of Health and Community Services) v. G.,  3 S.C.R 46.
 Action Committee on Access to Justice in Civil and Family Matters, Access to Civil & Family Justice: A Roadmap for Change (Ottawa: Action Committee, 2013) at 2.
 See e.g. Melina Buckley, “A National Framework for Meeting Legal Needs: Proposed National Benchmarks for Public Legal Assistance Services”, online: <https://www.cba.org/CBAMediaLibrary/cba_na/PDFs/LLR/A-National-Framework-for-Meeting-Legal-Needs_Proposed-National-Benchmarks.pdf>., vernment of Canada, Department of Justice oking in the workplace in 1997.ations Courts in collaboration with ic period of time
 Young Offenders Act, RSC 1985, c. Y; Youth Criminal Justice Act, SC 2002, c. 1.
 R. v. Gladue,  1 SCR 688.
 The practice could traditionally have claimed to be client-centered, in the sense of the zealous defense or representation of the legal interests of the client. A person-centered service is quite different, dealing with interconnected legal and non-legal needs of the whole person with the hope of achieving more effective and durable resolutions for individuals and strengthening the communities in which they live in order to develop more effective partnerships to deal with the everyday problems form which legal problems emerge.
 Legal Services Society: Public Opinion Poll, 2018, Vancouver, Sentis Research, online: <https://lss.bc.ca/sites/default/files/2019-03/lssPublicOpinionPoll04_2018.pdf>.
 Legal Aid in Canada; Resource and Caseload Statistics, Statistics Canada (various years) and Legal Aid in Canada, 2016–2017 (Ottawa, Department of Justice, 2018).
 For recent legislative transformations to the legal aid regime in Ontario, see Bill 161, “An Act to enact the Legal Aid Services Act, 2019 and to make various amendments to other Acts dealing with the courts and other justice matters”, 1st Sess., 42nd Leg., 2019 (Ontario).
 See section 6, below, for a further discussion of legal fees.
 See Legal Aid in Canada 2016-2017, Research and Statistics Division and Legal Aid Directorate, Department of Justice, Ottawa (2018).
 See Rowbotham (1998), 63 CR 3rd 13 (Ont CA) at para. 156.
 Canadian Centre for Justice Statistics, Legal Aid in Canada: Resource and Caseload Statistics 2011/21, Cat. No. 85F0015X Annual, Statistics Canada, Ottawa, 2013; CANSIM, Table 258-0009, Legal Aid Applications-Total by Status of Application and Type of Matter-files, 2014 and CANSIM Table 258-0011, Approved Legal Aid Applications by Staff and Private Lawyers by Type of Matter-files, 2014; Legal Aid in Canada 2016-2017, Research and Statistics Division and Legal Aid Directorate, Department of Justice, Ottawa (2018).
 See New Brunswick (Minister of Health and Community Services) vs G,  3 S.C.R 46.
 Legal Aid in Canada 2016-2017, Research and Statistics Division and Legal Aid Directorate, Department of Justice, Ottawa (2018) at Table 6, p. 9.
 Ibid. at Table 15, p.19.
 Legal Aid in Canada: Resource and Caseload Statistics, Statistics Canada, Cat. NO. 85F0015 (various years); Legal Aid in Canada 2016-17, Research and Statistics Division and Legal Aid Directorate, Department of Justice Canada (2018).
 Trevor C.W. Farrow et al., “Everyday Legal Problems and the Cost of Justice in Canada: Overview Report” (Toronto: Canadian Forum on Civil Justice, 2016) at 9; Ab Currie, “Nudging the Paradigm Shift, Everyday Legal Problems in Canada” (Toronto: Canadian Forum on Civil Justice, 2016).
 Trevor C.W. Farrow et al., “Everyday Legal Problems and the Cost of Justice in Canada: Overview Report” (Toronto: Canadian Forum on Civil Justice, 2016) at 3-7.
 Task Force on Justice, Justice for All – The report of the Task Force on Justice: conference version (New York: Center on International Cooperation, 2019) at 12.
 See e.g. Action Committee on Access to Justice in Civil and Family Matters, Access to Civil & Family Justice: A Roadmap for Change (Ottawa: Action Committee, 2013) at 1; Canadian Bar Association, Reaching Equal Justice (Ottawa: Canadian Bar Association 2013) at Part 1; Lisa Moore and Trevor C.W. Farrow, Investing in Justice: A Literature Review in Support of the Case for Improved Access (Toronto: Canadian Forum on Civil Justice, 2019) at 2. See further Trevor C.W. Farrow and Lesley A. Jacobs, eds, The Justice Crisis: The Cost and Value of Accessing Law (Vancouver: UBC Press, forthcoming 2020).
 See brief overview of Canada’s justice system above in sections 1-3. See also: Department of Justice Canada, Canada’s System of Justice (Ottawa: Government of Canada, 2015), online: Government of Canada <https://www.justice.gc.ca/eng/csj-sjc/just/img/courten.pdf>.
 For a summary of different kinds of expenses, see: Trevor C.W. Farrow et al., “Everyday Legal Problems and the Cost of Justice in Canada: Overview Report” (Toronto: Canadian Forum on Civil Justice, 2016) at 14-15.
 See e.g. Law Society of Ontario, Rules of Professional Conduct, r. 3.6; Ontario’s Solicitors Act, RSO 1990, C. s.15.
 Marg Bruineman, “The right price: Canadian Lawyer 2018 Legal Fees Survey” (April 2018) [“Canadian Lawyer 2018 Legal Fees Survey”], online: <https://www.canadianlawyermag.com/staticcontent/AttachedDocs/CL_Apr_18_LegalFeesSurvey.pdf>.
 For a general summary, see e.g. Janet Walker et al., eds., The Civil Litigation Process: Cases and Materials, 8th ed. (Toronto: Emond, 2016) at c. 2.II [Civil Litigation Process]; “Canadian Lawyer 2018 Legal Fees Survey”, supra; Noel Semple, “The Cost of Seeking Civil Justice in Canada” (2015) 93 Can Bar Rev 639.
 For a background discussion on legal aid, see section 5 above. Government of Canada, Department of Justice Canada, “Legal Aid Program” (6 September 2019), online: <https://www.justice.gc.ca/eng/fund-fina/gov-gouv/aid-aide.html>.
 See e.g. Ontario’s Courts of Justice Act, RSO 1990, c. C.43, s. 131.
 See e.g. Ontario’s Rules of Civil Procedure, RRO 1990, Reg 194, as amended, r. 57.
 Ibid. at r. 1.04 (1.1); Trevor C.W. Farrow, “Proportionality: A cultural revolution” (2012) 1 J Civ Lit & Pract 151.
 Walker et al., eds., Civil Litigation Process, supra, at 91.
 Ibid. at 104.
 Ibid. at 105.
 Shaun Fluker, “The Public Interest Exception to the Normal Costs Rule in Litigation” (2016) ABLawg, online: <https://ablawg.ca/2016/03/07/the-public-interest-exception-to-the-normal-costs-rule-in-litigation/>.
 Walker et al., eds., Civil Litigation Process, supra, at 105.
 See e.g. Superior Court of Justice and Court of Appeal – Fees, O. Reg. 293/92, amended to O Reg 10/05, s. 1.
 See e.g. British Columbia Supreme Court Civil Rules, as amended, BC Reg 115/2019, Appendix C.
 Trial Lawyers Association of British Columbia v. British Columbia (Attorney General),  3 SCR 31.
 See e.g. Superior Court of Justice and Court of Appeal – Fees, O. Reg. 293/92, amended to O. Reg. 10/05, at s. 1; British Columbia Supreme Court Civil Rules, BC Reg 168/2009 at Appendix C; Federal Court Rules, SOR/98-106, Tariff A. For tribunals, see e.g. Tribunals Ontario (Environmental and Land Division), Fee Chart, online: Government of Ontario <https://elto.gov.on.ca/tribunals/lpat/lpat-process/fee-chart/>.
 See e.g. Ontario Ministry of the Attorney General, “Having your court fees waived” (last modified 8 May 2019), online: Government of Ontario <https://www.attorneygeneral.jus.gov.on.ca/english/courts/feewaiver/index.php>.
 See e.g. British Columbia Supreme Court Civil Rules, BC Reg 168/2009
- 20-5; Trial Lawyers Association of British Columbia v. British Columbia (Attorney General),  3 SCR 31.
 See e.g. Ontario Ministry of the Attorney General, “Having your court fees waived” (last modified 8 May 2019), online: Government of Ontario <https://www.attorneygeneral.jus.gov.on.ca/english/courts/feewaiver/index.php>.
 See e.g. British Columbia Supreme Court Civil Rules, BC Reg 168/2009, Appendix C at r. 20-5(4).
 See e.g. Legal Aid Ontario, Tariff and Billing handbook (update July 2015) at c. 6.2.
 See e.g. Department of Justice, “The judicial structure” (modified 16 October 2017), online: Government of Canada <https://www.justice.gc.ca/eng/csj-sjc/just/07.html>.
 See e.g. Ontario Courts of Justice Act, RSO 1990, c. C.43. at pts. I-II; Federal Courts Act, RSC 1985, c. F-7.; Supreme Court Act, RSC, 1985, c. S-26.
 See e.g. Provincial Court of British Columbia, “Specialized Courts”, online: <https://www.provincialcourt.bc.ca/about-the-court/specialized-courts>; Alberta Mental Health Court, online: Alberta Courts <https://albertacourts.ca/pc/areas-of-law/criminal/mental-health-court>; The Courts of Nova Scotia, “Youth Justice Court”, online: <https://www.courts.ns.ca/Provincial_Court/NSPC_youth_court.htm>; Ontario Superior Court of Justice, “Commercial List”, online: Ontario Courts <http://www.ontariocourts.ca/scj/civil/commercial-list/>.
 See e.g. Ontario Class Proceedings Act, 1992, SO 1992, c. 6.
 See e.g. Ontario Rules of Civil Procedure, RRO 1990, c. C.43. at r. 76.
 Ibid at rr. 20-22; Alberta Rules of Court, AR 124/2010, as amended, pt. 7.
 See e.g. Ontario Ministry of the Attorney General, “Small Claims Court”, online: <https://www.attorneygeneral.jus.gov.on.ca/english/courts/scc/>.
 See e.g. Ontario Rules of Civil Procedure, RRO 1990, c. C.43 at r. 19.04(1)(a).
 See e.g. Trevor C.W. Farrow, Civil Justice, Privatization, and Democracy (Toronto: University of Toronto Press, 2014), cc. 3-4.; Department of Justice, “Dispute Resolution Reference Guide” (19 January 2015), online: Government of Canada <http://www.justice.gc.ca/eng/rp-pr/csj-sjc/dprs-sprd/res/drrg-mrrc/intro.html>. For various court-based references, see e.g. Alberta Rules of Court, Alta Reg 390/1968 at pt. 4; Québec Code of Civil Procedure, C-25.01, r. 1; Ontario Rules of Civil Procedure, RRO 1990, c. C.43 at rr. 24.1, 50, 77. See further British Columbia Civil Resolution Tribunal, online: <https://civilresolutionbc.ca/>; Ontario Condominium Authority Tribunal, online: <https://www.condoauthorityontario.ca/en-US/tribunal/>.
 See variously Trevor C.W. Farrow et al., “Everyday Legal Problems and the Cost of Justice in Canada: Overview Report” (Toronto: Canadian Forum on Civil Justice, 2016) at 9; Trevor C.W. Farrow, Civil Justice, Privatization, and Democracy (Toronto: University of Toronto Press, 2014); Ontario Arbitration Act, 1991, SO 1991, c. 17; Québec Code of Civil Procedure, CQLR c C-25.01 at r. 1; Ontario Statutory Powers and Procedure Act, RSO 1990, c. S.22, ss. 4.8-4.9.
 See e.g. Val Napoleon and Hadley Friedland, “Indigenous Legal Traditions: Roots to Renaissance” (2013) Ontario Law Foundation 1; Nisha Sikka, George Wong and Catherine Bell, “Indigenous Centered Conflict Resolution Processes in Canada”, online: Centre of Excellence for Matrimonial Real Property <https://www.coemrp.ca/resources/dispute-resolution/>; Rebecca Ratcliffe and Catherine Bell, “Western ADR Processes and Indigenous Dispute Resolution”, online: Centre of Excellence for Matrimonial Real Property <https://www.coemrp.ca/resources/dispute-resolution/>; Hadley Friedland, Jessica Asch and Val Napoleon, “A Toolkit for On-Reserve Matrimonial Real Property Dispute Resolution”, online: Centre of Excellence for Matrimonial Real Property <https://www.coemrp.ca/resources/dispute-resolution/>; Aaron Mills, “The Lifeworlds of Law: On Revitalizing Indigenous Legal Orders Today” (2016) 61:4 McGill LJ 847; Rupert Ross, “Exploring Criminal Justice and the Aboriginal Healing Paradigm” (Discussion Paper) (LSUC, Third Colloquium on the Legal Profession, 2004) online: LSO <http://www.lsuc.on.ca/media/third_colloquium_rupert_ross.pdf>. See also Truth and Reconciliation Commission of Canada, Honouring the Truth, Reconciling the Future: Summary of the Final Report of the Truth and Reconciliation Commission of Canada (Truth and Reconciliation Commission of Canada, 2015).
 See e.g. Ismaili Conciliation and Arbitration Board, “Dispute Resolution Services”, online: the.ismaili <https://the.ismaili/cab/dispute-resolution-services>; Trevor C.W. Farrow, “Re-Framing the Sharia Arbitration Debate” (2006) 15:2 Constitutional Forum 79; Marian Boyd, Dispute Resolution in Family Law: Protecting Choice, Promoting Inclusion (Toronto: Ontario Ministry of the Attorney General, 2004).
 See Trevor C.W. Farrow, Civil Justice, Privatization, and Democracy (Toronto: University of Toronto Press, 2014).
 Act respecting the Fonds d’aide aux actions collectives, CQLR c F-188.8.131.52.1.
 Class Proceedings Act, 1992, SO 1992, c. 6.
 See for example, British Columbia, Class Proceedings Act, RSBC 1996, C 50, s. 4.
 See e.g. ibid. at s. 37.
 In 1992, an amendment to the Law Society Act established the Class Proceedings Fund and the Class Proceedings Committee. See Law Foundation of Ontario, Class Proceedings Fund, online: LFO <https://lawfoundation.on.ca/for-lawyers-and-paralegals/class-proceedings-fund/>.
 Law Commission of Ontario, Class Actions: Objectives, Experience, and Reforms, Final Report (Toronto: Law Commission of Ontario, July 2019) [Class Actions] at 2.
 See for example, Pro-Sys Consultants Ltd. v. Microsoft Corporation, 2013 SCC 57.
 Law Commission of Ontario, Class Actions, supra, at 1.
 Ibid. See recommendations compiled in Appendix A, at 95-100.
 Canadian Bar Association, Class Action Database, online: <http://www.cba.org/Publications-Resources/Class-Action-Database>.
 British Columbia, Class Proceedings Act, supra, at s. 4.1 (“Orders in multi-jurisdictional certification”).
 British Columbia, Human Rights Code, RSBC 1996, c. 210, ss. 21(1) and (4).
 R. v. Conway, 2010 SCC 22.
 Canadian Charter of Rights and Freedoms, Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 at s 33.
 Canada (Attorney General) v. Downtown Eastside Sex Workers United Against Violence Society, 2012 SCC 45.
 British Columbia (Minister of Forests) v. Okanagan Indian Band, 2003 SCC 71; R. v. Caron, 2011 SCC 5.
 Doucet-Boudreau v. Nova Scotia (Minister of Education), 2003 SCC 62.
 Ward v. City of Vancouver, 2010 SCC 27.
 The Federal program was discontinued in 2012.
 For a further discussion of the legal profession in Canada, see section 2.3 above.
 See e.g. Nova Scotia Barristers’ Society, online: <https://nsbs.org/>; Barreau du Québec, online: <https://www.barreau.qc.ca/en/>; Law Society of the Northwest Territories, online: <https://www.lawsociety.nt.ca/>.
 See e.g. Ontario Law Society Act, R.S.O. 1990 c. L.8.
 See e.g. LSO, Rules of Professional Conduct, online LSO: <https://lso.ca/about-lso/legislation-rules/rules-of-professional-conduct>.
 See FLSC, Model Code of Professional Conduct, online: FLSC <https://flsc.ca/national-initiatives/model-code-of-professional-conduct/>.
 See FLSC, “National Requirement” (1 January 2018), online: FLSC <https://flsc.ca/wp-content/uploads/2018/01/National-Requirement-Jan-2018-FIN.pdf>.
 See David Tanovich, “Learning to Act Like a Lawyer: A Model Code of Professional Responsibility for Law Students” (2009) 27 Windsor YB Access Just 75.
 See e.g. LSO, “Becoming Licensed”, ibid.
 See e.g. LSO, “Law Practice Program”, online: <https://lso.ca/becoming-licensed/lawyer-licensing-process/law-practice-program>.
 See FLSC, “About the NCA”, online: <https://flsc.ca/national-initiatives/about-the-nca/>.
 See e.g. LSO, “Continuing Professional Development Requirement”, online: LSO <https://lso.ca/paralegals/enhancing-competence/continuing-professional-development-requirement>.
 See e.g. Canadian Bar Association, “Pro Bono Resources in Canada”, online: CBA <https://www.cba.org/Sections/Pro-Bono/Pro-Bono-Resources-in-Canada/Resources>.
 Government of Canada, Canadian Radio-Television and Telecommunications Commission, “Broadbandfund – Closing the digital divide in Canada”, online: Government of Canada <https://crtc.gc.ca/eng/internet/internet.htm>.
 Canadian Bar Association, Futures: Transforming the delivery of legal services in Canada (Ottawa: CBA, 2014).
 Law Society of Ontario, “Technology Task Force” (2020), online: LSO <https://lso.ca/about-lso/initiatives/technology-task-force>.
 The Law Society of British Columbia, “Futures Task Force Consultation”, online: LSBC <https://www.lawsociety.bc.ca/our-initiatives/futures-task-force-consultation/>.
 Ibid. at 81-83.
 Action Committee on Access to Justice in Civil and Family Matters, Tracking Action on Canada’s Justice Development Goals – A2J Progress in 2017, online: <http://www.justicedevelopmentgoals.ca/sites/default/files/justice_development_goals_-_2017_progress_report.pdf>.
 See e.g. Law Society of Ontario, “LSO: COVID-19 Response”, online: LSO <https://lso.ca/news-events/news/corporate-statement-re-covid-19>; Ontario Superior Court of Justice, “Notice to the Profession, the Public and Media Regarding Civil and Family Proceedings” (15 March 2020), online: <https://www.ontariocourts.ca/scj/covid-19-suspension-fam/>.
 For more information on the project, see: <https://www.cyberjustice.ca/en/actualites/2019/12/16/video-de-presentation-le-partenariat-de-recherche-ajc/>.
 For an interview with the Professor Karim Benyekhlef, Director of the Cyberjustice Laboratory and Professor Amy Salyzyn, a lead researcher for ACT, see: <https://www.thelawyersdaily.ca/articles/17336>.
 Ab Currie, The Nature and Extent of Unmet Need for Criminal Legal Aid in Canada (2004) 11:3 International J Legal Prof 191.
 Ab Currie, A National Survey of the Civil Justice Problems of Low and Moderate Income Canadians: Incidence and Patterns, (2006) 13:3 International J Legal Prof 217, presents the results of a 2004 Canadian survey of legal problems; Ab Currie, “The Legal Problems of Everyday Life”, in Rebecca L. Sandefur, ed., Access to Justice (Sociology of Crime, Law and Deviance, vol. 12) (United Kingdom, Emerald Group, 2009) 1, presents the results of a 2006 Canadian survey of legal problems; and Ab Currie, Lives of Trouble: Criminal Offending and the Problems of Everyday Life, paper presented at the International Legal Aid Group Conference (Wellington New Zealand, 2009), presents the results of the 2008 Canadian legal problems survey; Trevor CW Farrow, Ab Currie, Nicole Aylwin, Les Jacobs, David Northrup and Lisa Moore, Everyday Legal Problems and the Cost of Justice in Canada (Toronto, Canadian Forum on Civil Justice, 2016) presents results from the 2014 survey.
 The table is reproduced from Ab Currie, Nudging the Paradigm Shift: Everyday Legal Problems in Canada (Toronto, Canadian Forum on Civil Justice, 2014).
 Consumer, Debt, Employment, Discrimination, Family, Wills and Powers of Attorney, Medical Care, Housing, Personal Injury, Police Action, Disability, Threat of Legal Action, Social Assistance, and Immigration.
 Action Committee on Access to Justice in Civil and Family Matters, Access to Civil and Family Justice: A Roadmap for Change (Ottawa, Action Committee on Access to Justice in Civil and Family Matters, 2013).
 Ibid. at 2. See further Trevor C.W. Farrow and Lesley A. Jacobs, eds, The Justice Crisis: The Cost and Value of Accessing Law (Vancouver: UBC Press, forthcoming 2020).
 These data are available on-line from Statistics Canada, CANSIM tables 258-0007.
 Ibid., CANSIM Table 258-0007.
 Julie Macfarlane, Identifying and Meeting the Needs of Self-Representing Litigants, The National Self-Representing Litigants Project (2013).
 Ab Currie, Extending the Reach of Legal Aid: Report on the Pilot Phase of the Legal Health Check-Up Project (Toronto: Canadian Forum on Civil Justice, 2014); Ab Currie, Engaging the Power of Community to Expand Legal Services for Low-Income Ontarians (Toronto: Canadian Forum on Civil Justice, 2015).
 Ab Currie, Legal Secondary Consultation: How Legal Aid Can Support Communities and Expand Access to Justice (Toronto: Canadian Forum on Civil Justice, 2018).
 Ab Currie, Someone Out There Helping: The WellCoMs Mobile Van Project (Toronto: Canadian Forum on Civil Justice, forthcoming 2020).
 Hamilton Outreach Project: Meeting People Where They’re At (Hamilton: Ontario: Hamilton Community Legal Clinic, 2019).
 Lisa Turik, Justice and Health Partnership Project: Interim Report (Belleville: Ontario, Community Advocacy and Legal Centre, 2016).
 Lois Gander, “The Radical Promise of Public Legal Education in Canada” (Edmonton, University of Alberta 1999); Lois Gander, “The Changing Face of Public Legal Education in Canada”, News and Views on Civil Justice Reform, Issue 6 (Edmonton, Canadian Forum on Civil Justice, 2003).
 Access to Justice Reports on Public Legal Information and Education (1989) (Ottawa, Department of Justice).
 Karen Cohl, Julie Lassonde, Julie Mathews, Carol Lee Smith, and George Thomson, “Trusted Help: The role of community workers as trusted intermediaries”, pts 1-2 (Toronto: Law Foundation of Ontario, 2018).
 For a discussion of that boundary, see Trevor CW Farrow et al., Addressing the Needs of Self-Represented Litigants in the Canadian Justice System (Toronto & Edmonton: Association of Canadian Court Administrators, 2012), online: CFCJ <https://www.cfcj-fcjc.org/sites/default/files/docs/2012/Addressing%20the%20Needs%20of%20SRLs%20ACCA%20White%20Paper%20March%202012%20Final%20Revised%20Version.pdf>.
 Ab Currie, “The Legal Problems of Everyday Life”, in Rebecca L. Sandefur, ed., Access to Justice (Sociology of Crime, Law and Deviance, vol. 12) (United Kingdom, Emerald Group, 2009) 1.
 Julie Mathews and David Wiseman, “Pushing the Boundaries of Legal Information: What do clients really need?” (Toronto, CLEO Connect, 2019).
 See Canadian Bar Association, “Legal Aid Delivery Models in Canada: A Discussion Paper” (Ottawa, Canadian Bar Association, 1987); Melina Buckley, The Legal Aid Crisis: A Time for Action (Ottawa, Canadian Bar Association, 2000); Melina Buckley, Moving Forward on Legal Aid: Research on Needs and Innovative Approaches (Ottawa, Canadian Bar Association, 2010).
 Alison Brewin and Kasari Govender, Rights-Based Legal Aid: Rebuilding B.C.’s Broken System (Vancouver, Canadian Centre for Policy Alternatives, 2010).
 Ab Currie, Someone Out There Helping: Final Report of the WellCoMs Mobile Van Project (Toronto, Canadian Forum on Civil Justice, 2019).
 Legal Aid in Canada: Resource and Caseload Statistics Ottawa, 2013-14 (Ottawa, Statistics Canada, 2014-15).
 Trevor C. W. Farrow, “What Is Access to Justice?” (2014) 51:3 Osgoode Hall LJ 957, online: Osgoode Digital Commons <https://digitalcommons.osgoode.yorku.ca/cgi/viewcontent.cgi?article=2761&context=ohlj>.
 See e.g. United Nations, Sustainable Development Goals (SDGs), Goal 16, online: UN <https://sustainabledevelopment.un.org/sdg16>; Organisation for Economic Co-operation and Development, “Access to Justice”, online: OECD <https://www.oecd.org/gov/access-to-justice.htm>; Pathfinders, Task Force on Justice, online: <https://www.justice.sdg16.plus/>.
 For a further discussion on access to justice in Canada, see Section 4, Access to Justice, Equal Access to Court and Fair Trial.
 See Canadian Bar Association, Reaching Equal Justice (Ottawa: Canadian Bar Association 2013); Canadian Bar Association, Futures: Transforming the Delivery of Legal Services in Canada (Ottawa: Canadian Bar Association, August 2014).
 Action Committee on Access to Justice in Civil and Family Matters, Access to Civil & Family Justice: A Roadmap for Change (Ottawa: Action Committee, 2013) at 2.
 See e.g. Access to Justice BC, online: <https://acc esstojusticebc.ca/about/>.
 See e.g. various Canadian initiatives referenced in: Task Force on Justice, Justice for All – The report of the Task Force on Justice: conference version (New York: Center on International Cooperation, 2019).
 See e.g. Canadian Forum on Civil Justice, online: <https://cfcj-fcjc.org/our-projects/>; University of Victoria, Access to Justice Centre for Excellence, online: <http://www.uvicace.com/>; Cyberjustice Laboratory (discussed above), online: <https://www.cyberjustice.ca/en/>; National Self-Represented Litigants Project, online: <https://representingyourselfcanada.com/>, among others.
 See e.g. Hon. William F. Morneau, P.C., M.P., Federal Budget 2018, “Equality + Growth: A Strong Middle Class” (Tabled in House of Commons, 27 February 2018), c. 4, p. 165, online: Government of Canada <https://www.budget.gc.ca/2018/docs/plan/budget-2018-en.pdf>.
 See Trevor C.W. Farrow and Lesley A. Jacobs, eds, The Justice Crisis: The Cost and Value of Accessing Law (Vancouver: UBC Press, forthcoming 2020) at Introduction.
 See e.g. Ontario Superior Court of Justice, “Notice to the Profession, the Public and Media Regarding Civil and Family Proceedings” (15 March 2020), online: <https://www.ontariocourts.ca/scj/covid-19-suspension-fam/>; Bernise Carolino, “COVID-19 and the courts: April 20 update” Canadian Lawyer (20 April 2020), online: <https://www.canadianlawyermag.com/practice-areas/litigation/covid-19-and-the-courts-april-20-update/328841?utm_source=GA&utm_medium=20200420&utm_campaign=Newsletter-20200420&utm_content=E1F566E9-1132-47B2-AD58-A1B7C79F39ED&tu=E1F566E9-1132-47B2-AD58-A1B7C79F39ED>.
 See e.g. Lucy Saddleton, “Ontario lawyers launch pro bono legal service for essential workers during COVID-19 crisis” Canadian Lawyer (30 April 2020), online: <https://www.canadianlawyermag.com/practice-areas/trusts-and-estates/ontario-lawyers-launch-pro-bono-legal-service-for-essential-workers-during-covid-19-crisis/329188?utm_source=GA&utm_medium=20200430&utm_campaign=Newsletter-20200430&utm_content=E1F566E9-1132-47B2-AD58-A1B7C79F39ED&tu=E1F566E9-1132-47B2-AD58-A1B7C79F39ED>.
 See e.g. Bernise Carolino, “Roundup of law firm resources on COVID-19: April 30 update” Canadian Lawyer (30 April 2020), online: <https://www.canadianlawyermag.com/practice-areas/corporate-commercial/roundup-of-law-firm-resources-on-covid-19-april-30-update/329202?utm_source=GA&utm_medium=20200504&utm_campaign=Newsletter-20200504&utm_content=E1F566E9-1132-47B2-AD58-A1B7C79F39ED&tu=E1F566E9-1132-47B2-AD58-A1B7C79F39ED>.
 See e.g. Canadian Bar Association, “COVID-19 Resource Hub”, online: <https://www.cba.org/Home>; Action Committee on Access to Justice in Civil and Family Matters, “The Action Committee’s Monthly A2J Newsletter” (April 2020), online <https://mailchi.mp/0ead218f86bc/april-a2j-newsletter-justice-system-changes?e=4fbb9da6fb>; National Self-Represented Litigants Project, “COVID-19 Resources Regularly Updated”, online: <https://representingyourselfcanada.com/>.
 Trevor C.W. Farrow, quoted in Ibid.
 Chief Justice Geoffrey Morawetz, quoted in Amanda Jerome, “‘Paper-based system is not going to exist anymore,’ Chief Justice Morawetz says of post-COVID-19 court” The Lawyer’s Daily (15 April 2020), online: <https://www.thelawyersdaily.ca/articles/18576/-paper-based-system-is-not-going-to-exist-anymore-chief-justice-morawetz-says-of-post-covid-19-court-?category=legal-innovation>.
 See Michael Spratt, “How will courts function after COVID-19?” Canadian Lawyer (17 April 2020), online: <https://www.canadianlawyermag.com/news/opinion/how-will-courts-function-after-covid-19/328806>.
 See e.g. Trevor C.W. Farrow and Lesley A. Jacobs, eds, The Justice Crisis: The Cost and Value of Accessing Law (Vancouver: UBC Press, forthcoming 2020).