Everyday solutions for legal problems

“The first thing we do, let’s kill all the lawyers,” wrote Shakespeare in Henry V1, written in 1591 — a cry out against the perceived trickery in the legal system that seems to work against the average person. Hard to believe that in 2013 we are still trying to make the justice system serve the needs of everyday people in everyday life.

Help may be on the way. Chief Justice of the Supreme Court, Beverley McLachlin, has thankfully initiated a study that could bring about much-needed reform. The report, “A Roadmap for Change,” advocates more problem-solving, and putting the needs of the public first.

The choice to self-represent is usually out of financial necessity: a settlement of $15,000 is little use to anyone if it’s wiped out by legal costs of $10,000. But to self-represent is a “lose-lose” proposition for everyone — individuals, our communities and the taxpayer. It over-burdens our already sclerotic system, and causes extreme stress and financial hardship to individuals and families.

Many find out that being right and getting a judgment in your favour are two different things. The current judicial system seems to favour those who can afford experienced and crafty lawyers. Access to a courtroom is not access to justice. The real-life courtroom is a far cry from a Judge Judy TV show.

Self-represented parties are often held to the same standards lawyers are. To learn the skills lawyers themselves take years to learn — interpreting case law, applying legal precedents, cross-examination of expert witnesses, asking non-leading questions, writing factums, understanding the rules of procedure, filing and serving documents, understanding of burdens of proof, deciphering legal terminology, defending oneself against delaying tactics such motions — is out of reach for most consumers, even the best-prepared and well educated.

More mediation, more real understanding of the needs of the consumer, a more-problem-solving approach as opposed to the current adversarial system, is urgently needed. To keep the scales of justice slanted toward those with the deepest pockets and most experienced highly paid lawyers is justice denied. And a boon to wrong-doers who can afford to pay their way out of wrong-doing at someone else’s expense.

The Ontario License Appeal Tribunal is a case in point which would benefit greatly from judicial reforms. It promotes itself, as does Tarion Warranty Corp. from whose decisions these appeals are made, as a “consumer-friendly” court. It is nothing of the sort.

The failure rate for consumers at this tribunal is about 83 per cent (source: Canadians for Properly Built Homes, 2013). This cumbersome, costly meat-grinder of a legal forum could be replaced by a mandatory, independent mediation body for self-represented homeowners, using qualified engineers instead of lawyers to judge technical aspects of new home defects.

This would probably be less time-consuming and waste fewer tax dollars. Why would one not want this?

As the report states: “Everyday legal problems need everyday solutions that are timely, fair, and cost-effective.”

Amen.