Our justice system is in crisis. As many as 65 per cent of individuals involved in family court proceedings in Ontario do not have a lawyer. In the province's civil courts, there are, by some estimates, more people representing themselves than parties with counsel. Increasingly, Ontarians are unable to afford lawyers' services. This impairs meaningful access to the justice system.
This rise in self-representation poses an existential challenge to our justice system. The adversarial nature of our court system is premised on opposing parties having the benefit of zealous and trained advocates. Without lawyers to assist them, parties are often ill-equipped to navigate our courts and this diminishes confidence in our legal system.
The high numbers of self-represented litigants winding their way through the courts also cause costly and time-consuming delays, as judges and counsel must walk them through proceedings. In many cases, justice is not done nor is it seen to be done.
What is causing this rise in self-representation? While there are many issues at play, at its core, this is a cost problem. Most lawyers are too expensive for most Canadians to afford. This is partially a result of the statutory monopoly that lawyers have on most forms of legal representation in Ontario and across the country. It is also a result of how we educate lawyers. Canadian lawyers receive a lengthy and expensive formal education: four years of undergraduate education and three years of law school. The cost of this education is passed on to clients.
Clearly, there is a growing need for an affordable alternative to representation by lawyers. A compelling option would be to permit paralegals to provide a wider variety of legal services.
Paralegals are legal professionals that are able to provide a limited array of legal services. They currently practice across Canada in both regulated and unregulated roles (e.g. paralegals are regulated in Ontario, but unregulated in Alberta). While their scope of practice varies from province to province, it is generally quite limited. In Ontario, for example, paralegals can represent individuals in Small Claims Court, which deals with matters worth less than $25,000, and in Provincial Offences Court, which deals with matters such as speeding and traffic tickets. However, paralegals in Ontario cannot represent individuals in family court matters nor are they allowed to draft basic legal documents, like wills or real estate documents.
A broader scope of practice for paralegals, in the courtroom and the office, would bring necessary legal services within the reach of many Ontarians who cannot currently access them. England and Wales, which strictly limit the number of licensed barristers, permit non-lawyers to provide a variety of legal services that are reserved for lawyers in Ontario. Last year, the Law Society of Alberta released a paper calling for an expanded scope of practice for paralegals as a way to enhance access to legal services in that province.
Common objections to a more widespread use of paralegals in a broader array of areas do not withstand scrutiny. Ethical standards can be imposed on paralegals through regulation, just as is done with lawyers. In Ontario, the Law Society of Upper Canada – the professional body that regulates lawyers – has also been regulating paralegals for the past six years. Moreover, paralegals in Ontario are required to carry insurance, just like lawyers, in order to practice.
Concerns regarding the quality of paralegal services are also misplaced. While a Canadian lawyer's education is general, academic and covers most areas of law over three years at university, paralegals in Ontario currently receive a more practice-oriented education in a two-year accredited college program. It might make sense for paralegals to be trained and licensed in even narrower fields. Imagine a specialized divorce proceedings paralegal or a paralegal who specialises in drafting real estate documents. These individuals could obtain competence through a more targeted training and excellence through experience.
Most importantly, paralegals are far better than the alternative: no representation at all. An individual, facing the complexities of the family court system or the intricacies of drafting a will, would surely benefit from the assistance of an experienced legal professional at reasonable rates. Our justice system must evolve to accommodate the needs of the majority of Ontarians.
Jessica Prince and Rory Gillis are lawyers in Toronto and volunteer at a low-income legal assistance clinic.