Canada’s legal system leaves middle class on the outside looking in
09 October 2012
When Mike Marsh sued Ford Motor Co. and his dealer in small claims court, he found his case dismissed.
He said his F-150 truck shuddered or misfired while accelerating up a
hill, but didn’t provide any expert testimony to support the fact that
his truck vibrated in an abnormal manner.
Ford and the dealer hired lawyers and called witnesses. Marsh did neither, preferring to argue his own case.
“The judge said I didn’t prove a defect. He believed the claim from
Ford and the dealership that the issue was minimal, if it existed at
all,” he said after his loss last April.
He considered an appeal, citing a Nova Scotia small claims court
judgment that said, “Consumers should not need forensic engineers to
establish every warranty claim.”
But he needed a lawyer to move ahead — and he hesitated to spend
$25,000 on a lost court case when he could replace the truck for the
Consumers who have an intractable dispute with a manufacturer or
retailer often strike out in small claims court unless they hire legal
But many households have too high an income to qualify for legal aid
and too low an income — or too minimal a claim — to hire legal counsel
to represent them in a civil matter.
Michael Trebilcock, a University of Toronto law professor, reviewed
Ontario’s legal aid system in 2008. He said it was an injustice to make
middle income earners pay for legal aid if they couldn’t benefit from
Trebilcock and two other law professors — Anthony Duggan of the
University of Toronto and Lorne Sossin, dean of Osgoode Hall Law School
at York University — have written a book, Middle Income Access to Justice (University of Toronto Press), which grew out of a conference held in February 2011.
“We are witnessing a staggering number of individuals trying to
navigate an increasingly complex civil justice system without any or
adequate legal assistance and feeling increasingly alienated from the
system,” they say.
“Significant improvements in the delivery of public services are
unlikely without the support of those who principally fund them. To
gain this support, the improvements must be pitched to a broader
constituency than those who are most obviously in need.”
Lack of access to civil justice represents the most significant
challenge to our justice system, said Beverly McLachlin, chief justice
of the Supreme Court of Canada, in a foreword to the book.
“If the task of the generations that preceded us was to build an
excellent justice system, then the task that falls to our generation is
to ensure that every man, woman and child has access to that system —
not merely access on paper, but actual, meaningful and substantive
access to justice.
“Regrettably, we do not have adequate access to justice in Canada. We
have better access than in many countries, but it is still not what it
should be. Among the hardest hit are the middle class.”
Justice McLachlin noted that Canada was ranked ninth out of 12 wealthy
North American and western European countries on access to civil
justice in the World Justice Project’s 2011 Rule of Law Index.
“There is no ‘silver bullet’ that will solve the problem of access to
justice,” she said, calling for a sustained, multi-pronged attack and a
co-ordinated, collaborative approach among governments, lawyers, judges
The book’s contributors look at innovative solutions, such as
unbundling legal services. People could pay lawyers for help to start a
lawsuit, but not for full representation, for example.
Shelley McGill, an Ontario deputy small claims court judge, says the
“people’s court” can’t deliver informal, fast and low-cost access to
justice when there are so many conflicting objectives.
Raising the small claims court limit to $25,000 in Ontario is more
about government efficiency than justice, in her view.
“The inevitable side effects of high limits include increased fees,
more legal representation and longer trials — all usually considered
barriers to access,” she writes.
While half the provinces set their limit at $20,000 or more, Quebec
still bars lawyers from small claims court and keeps its limit
relatively low at $7,000.
British Columbia takes a tiered approach, in which the formality
increases with the value of the claim. Essentially, it has created a
small claims court within small claims court.
McGill urges Ontario to stop making the loser pay the other side’s
costs as a way to encourage out-of-court settlements.
“The small claims court was never contemplated as a high-stakes game
where litigants are punished for having their day in court,” she says.
Canada’s legal system works for the rich and the poor, the book
concludes. But it can’t be sustained much longer unless it serves
Ellen Roseman writes about personal finance and consumer issues. You can reach her at firstname.lastname@example.org or www.ellenroseman.com
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