An arm and a leg

By Noel Semple June 28, 201528 June 2015

The cost of seeking civil justice in Canada.

How much does it cost individual Canadians to seek civil justice?  The answer, it seems, is "too much.” There is broad agreement that the high cost of justice is undermining their ability to access justice in matters relating to family, employment, and consumer law.  This is confirmed by research carried out by the Costs of Justice project at the Canadian Forum for Civil Justice. The National Self-Represented Litigants Project at the University of Windsor’s law faculty has also contributed valuable data from the perspective of justice-seeking individuals.

Seeking to build on this progress, my new paper offers a comprehensive empirical account of the costs confronting individual justice-seekers in this country.  It defines and categorizes monetary, temporal, and psychological costs. It compiles data quantifying these costs for Canadian litigants, including both those with the benefit of counsel and those who are self-represented. Some of the key findings:

·       The monetary costs of seeking civil justice include court fees and disbursements, but lawyer’s fees dwarf these costs.  In the personal client hemisphere of legal practice, time-billing Canadian lawyers charge roughly 50 per cent more per hour than their American counterparts do.

·       Temporal costs can be understood in three ways. First, Canadians' efforts to obtain civil justice often last for many months (duration cost).  Second, while these efforts continue, they can consume many hours from the justice-seeker's days (workload cost).  Third, for self-represented litigants in particular, seeking civil justice can be time-consuming enough to undermine employment and personal relationships (opportunity cost).

·       Psychological impacts, such as stress and a sense of being overwhelmed, constitute a third layer of costs.  These too seem to fall most heavily on the self-represented. 

·       For self-repsresented litigants, the psychological costs of dealing with the justice system often outweigh the psychological costs of dealing with the litigant's adversary.

·       Family disputes are typically more financially and emotionally draining than other civil disputes, according to some of the empirical data.

Apart from offering yet another opportunity to bemoan the inaccessibility of civil justice in Canada, what is the utility of this costs analysis?   The private costs of civil justice are not immutable. Understanding them is a prelude to reducing them, and thereby making justice more accessible. There are opportunities to do so in both the public sector and the private bar.

Public sector initiatives

There are steps that governments, court systems and regulators can take to reduce the costs of seeking civil justice.  Temporal costs can be addressed through technological developments such as B.C.'s online Civil Resolution Tribunal and Ontario's Small Claims Court e-filing initiative. Monetary costs might be reduced by regulatory expansion of paralegals' scope of independent practice, in appropriate cases.  Psychological costs confronting civil-justice seekers will hopefully be eased by ongoing efforts in many provinces to make the law and the court system more user-friendly.

Cost-benefit arguments can support more public investment in legal aid and the court system.  Adding x public dollars to these budgets might demonstrably reduce monetary, temporal and psychological costs facing litigants by 3x or 4x.  Adding x public dollars might even, in the long run, reduce costs to the government itself by more than x. This is because many of the "private" costs of pursuing civil justice identified in this paper cost taxpayers money in the long run.

For example, the loss of employment income experienced by some self-represented litigants (due to the time demands of the litigation) can reduce tax revenue and thus increase state employment insurance and welfare obligations. Unresolved legal problems create annual costs to Canadian governments of $740 million per year, including $458 million in increased employment insurance costs and $248 million in increased social assistance costs, according to research from the Costs of Justice project.

Private Bar initiatives

Obviously, the government is not going to solve these access-to-justice problems by itself. The legal profession must be a central part of the solution. Understanding the private costs of seeking civil justice can help lawyers better understand the needs of their clients, and develop ways to cost-effectively meet those needs.  The traditional time-billed full-scope retainer model is unaffordable for most individuals. Taking costs into consideration can help us develop alternatives.

For example, the reality that family law disputes have relatively high psychological costs for litigants might suggest a market for "coaching" services. In this legal service delivery model, the litigant does the drafting, negotiation and courtroom appearances but the lawyer offers in-person advice and support.  Conversely, for other civil legal needs temporal costs are more problematic than psychological costs. Consumer disputes with businesses about defective goods and services could be an example. In these niches, there might be a market for remote, internet-enabled legal services and online dispute resolution. 

The costs of seeking civil justice in this country are high and often prohibitive for individuals.  However the good news is that, both in the public sector and in the private bar, there is enormous potential for creative policy-making and innovative legal practice to decrease these costs, and thereby make civil justice more accessible to all Canadians. 

Noel Semple (@NoelSemple) is a faculty member at the University of Windsor Faculty of Law.  His book Legal Services Regulation at the Crossroads -- Justitia's Legions is available now.  The paper upon which this article is based is available on here.

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