Depending on what province you’re in, if you're a small-business owner and you have to make use of Canada's courts, you're likely aware of one aspect of the justice system that is far from perfect: the length of time it takes to actually go to trial.
I'd like to make the case that part of the reason businesses can’t get a judge in a timely matter to enforce contracts breached by suppliers, to defend their own breaches of contract due to poor performances by other parties, or for any other commercial reasons, is because of the underfunding of legal aid by provincial governments.
Legal aid is for persons of limited means who may be charged with a criminal offence, who may be trying to obtain a restraining order against an abusive spouse, or who may be attempting to gain access to their children in a protracted custody battle. Legal aid isn't often a topic that finds its way into the business pages of Canada's newspapers.
But the lack of funding of legal aid to needy persons has a direct bearing on the ability of small businesses to utilize the courts to deal with commercial disputes.
Leaving aside the moral and ethical prerogative that all citizens, rich or poor, should have equal access to justice in a civil society, here’s the business case: people who can’t afford lawyers for their criminal, family, landlord-tenant or other legal matters become unrepresented litigants, representing themselves and tying up the resources of the courts, especially the time of our judges and crown prosecutors. This, in turn, delays everyone else’s day in court.
Without legal-aid lawyers to represent the poor, the civil cases that would normally be settled aren’t, and aggrieved parties will be disenfranchised by the justice system, preventing them from accessing whatever legal or contractual remedies they might otherwise be entitled to under their contracts or pursuant to statute. Or they’ll go to court themselves, without lawyers or legal aid, and without any experience with the rules of civil procedure, evidence, contract law, or family law and, quite frankly, stumble through the courts and create bottlenecks for everyone else.
On the criminal side, cases that might be resolved by a guilty plea on a lesser charge will often go right to trial on all charges because Crown prosecutors can’t “settle” these cases with unrepresented defendants in the same way they could with legally represented ones. Moreover, judges are put into the unenviable position of having to decide whether to bend over backward to assist these unrepresented litigants, who know little or nothing about the rules of criminal procedure or evidence, adding to court time and delaying other matters where there are lawyers involved.
One of these legal matters may be yours, and if your lawyers have been working around the clock preparing for a five-day trial set to start on Monday that collapses because the judge is still dealing with an unrepresented litigant in a criminal case, you’ll not only have to pay your lawyers for the time they spent preparing for trial, you’ll have to pay them to re-prepare for the re-set trial four or five or six months later. This will cost you way more money in legal fees than it would have if unrepresented litigants weren’t creating bottlenecks in the system.
Adequate funding of legal aid legal aid will reduce these bottlenecks and speed up your ability to get to court. The cases that should be tried will be tried more efficiently and speedier. The ones that should be settled will be settled. That’s how the system should work when legal aid is available to those who need it. When legal aid is not there, the justice system doesn’t work for them and it doesn’t work for you.
There’s another business reason for adequate funding of legal aid, and it has to do with the taxes collected to support our social services, a topic inevitably leading to the argument that “there is no money available for legal aid because of the high cost of health care.”
As taxpayers we should be concerned that health care is seen as having an unending appetite for our tax dollars at the expense of almost every other social service, including our court system. What isn’t well known is that research exists that says spending some of those tax dollars on the justice system and, in particular, on legal aid at the outset of a civil dispute or criminal matter saves many more dollars in health care and other social service costs that are incurred downstream.
Stephen McPhee, president of the B.C. branch of the Canadian Bar Association, points to a 2009 report from PriceWaterhouseCoopers out of Australia that found a savings in justice system spending of $1.60 to $2.25 for every $1 spent on legal aid. Money spent at the outset of a legal matter actually leads to savings elsewhere in the system, freeing up resources. “Efficiency benefits can be expected to be observed in a greater magnitude through the provision of education, information and legal advice by legal aid,” the report states. “These services reach a broader group of recipients and are likely to lead to appropriate and efficient pathways taken through or away from the justice system, from the outset.”
Mr. McPhee also points to studies out of the United States that put the economic benefit of funding legal aid even higher. A 2009 report by Perryman Group, a Texas-based think-tank, determined that for every dollar spent on legal aid, the overall gains to economic well-being were $2.65. The overall annual gains to the economy were $7.42 in total spending, $3.56 in gross product, and $2.20 in personal income for every dollar spent toward legal aid.
Mr. McPhee also notes there are similar reports in many other jurisdictions and points to the “cascading effect” of legal problems as the reason proper legal-aid funding saves all of us money in the end. “When someone has a legal problem, such as debt, landlord/tenant or family problems, early intervention and assistance by a skilled, trained independent advocate is key to those problems being resolved. Otherwise, the problems typically compound themselves – the debt problems lead to bankruptcy; the family problems sometimes lead to domestic violence when (they) aren’t dealt with properly.
“In all those scenarios, we see clients experiencing additional health problems that are directly related to the stress they are experiencing and often resorting to social assistance when their world comes “cascading” down around them. They cost us all far more in other social service spending and health spending than if they were able to access timely, accessible legal aid at the beginning of their legal problem.”
There are numerous studies and reports on the importance of legal aid in Canada and other countries; the most recent being Foundation for Change – Report of the Public Commission on Legal Aid in British Columbia, issued by Commissioner Len Doust, in March, 2011.
“I cannot come to any conclusion other than the services provided in British Columbia today are too little, their longevity or consistency too uncertain,” Mr. Doust said in his report. “This result is the consequence of the cutbacks and lack of sufficient and consistent financing, even though [the Legal Services Society]has done its very best, and in my view has done everything possible, to accommodate the needs within their limited budgetary restrictions.”
The report made seven fundamental findings:
• The legal aid system is failing needy individuals and families, the justice system, and our communities.
• Legal information is not an adequate substitute for legal assistance and representation.
• Timing of accessing legal aid is key.
• There is a broad consensus concerning the need for innovative, client-focused legal aid services.
• Steps must be taken to meet legal aid needs in rural communities.
• More people should be eligible for legal aid.
• Legal aid should be fully funded as an essential public service.
The report makes nine recommendations for improving legal aid services:
• Recognize legal aid as an essential public service.
• Develop a new approach to define core services and priorities.
• Modernize and expand financial eligibility.
• Establish regional legal aid centres and innovative service delivery.
• Expand public engagement and political dialogue.
• Increase long-term, stable funding.
• The legal aid system must be pro-active, dynamic, and strategic.
• There must be greater collaboration between public and private legal aid service providers.
• Provide more support to legal aid providers.
One recommendation that stands out is that governments should recognize legal aid as an essential public service and there should be entitlement to it when an individual has a legal problem that puts their security, or their family’s security, in jeopardy — be it their liberty, health, employment, housing, or ability to meet the basic necessities of life — and he or she has no meaningful ability to pay for legal services.
The statistical evidence would indicate that both the civil and criminal justice system in Canada would operate far more efficiently if, at the very least, this recommendation were put in place. It would have benefits for all businesses that have to resolve their disputes in court.
Its important to resolve legal problems early so they don’t manifest themselves into more expensive problems for taxpayers downstream, whether those problems are within the justice system, or within the health and social services system.
Special to The Globe and Mail
Tony Wilson is a franchise and intellectual property lawyer at Boughton in Vancouver, and he is an adjunct professor at Simon Fraser University. His newest book, Manage Your Online Reputation, was published in November.
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