There has been much talk over the past few years in legal and academic circles about improving access to justice (A2J). The growing phenomenon of self-represented litigants (SRL’s) is taking a toll on society, middle-class families, and the courts.
Many self-represent due to financial necessity, not choice. The cost of hiring a qualified litigation lawyer is $3,000-$5,000 a day for the Licence Appeal Tribunal (LAT), for example, excuding the cost of expert witneses. Most middle-income families don’t have this discretionary income, especially when up against big litigious corporations like Tarion Warranty with unlimited legal resources. LAT hearings are often complex and lengthy, and the chance of SRL’s losing is over 90%.
With all the talk about improving access to justice these days, one would expect the LAT to welcome consumer feedback on making the system more accessible and levelling the playing field. One would expect the same of the oversight body SLASTO, the Ombudsman of Ontario and/or the Attorney-General. Not so. These taxpayer-funded authorities seem to turn a blind eye to these suggestions.
Below are a few simple changes which could be made TODAY if there were really a will to improve A2J. These suggestions have been made repeatedly to the above authorities. They continue to say they’re content with the pace of reforms, without citing any concrete examples.Often we get no reply at all.
Five of these suggestions are listed below. Hopefully this month with renewed interest in access to justice issues, someone in authority will read this and put words to action.
- Complaints of “missing recordings” at License Appeal Tribunal hearings should be investigated at the time the complaint is made, not after the decision has been rendered. Complaints of “gaps” in the LAT’s official recordings seem to affect the applicant’s case, not the defendant’s. These complaints should be taken more seriously, and investigated promptly.
- Complaints of bias or bullying made against an LAT adjudicator regarding or his/her conduct should not be decided upon by the adjudicator him/herself. An independent investigation should be held in a timely manner. The current self-judging policy does not seem impartial.
- A self-represented litigant should be allowed to bring a friend as support or note-taker to a pre-hearing. This is currently forbidden: only lawyers/paralegals are allowed. This often leaves the SRL alone against 5-7 opposing counsel and their employees, which is clearly over-loading the bases.
- SRL’s should be allowed to voice record their own hearings. Lawyers routinely bring court reporters with them, SRLs can’t afford this. Court testimony should be public, since there’s a public interest to testimony about new home construction defects, shoddy building, and the testimony of engineers.
- There should be no conferring of Tarion’s/builder’s lawyers behind closed doors without including the SRL. This is forbidden in the LAT’s own Code of Conduct (pg. 4 under “Integrity”), but it’s still taking place. The LAT’s Code of Conduct states: Members should not communicate directly or indirectly with any party, witness or representative in respect of a proceeding, except in the presence of all parties and their representatives.” Yet Tarion revealed in Dec. 2015 (on its website under Dispute Resolution Review, pg. 48) that it is doing this: “The tribunal member presiding at a LAT pre-hearing often asks to meet privately with Tarion and the builder in the absence of the homeowner…” This came as a huge shock to SRL’s who’ve gone through the LAT without knowing this was going on. It appears to be clearly against the LAT’s own Code of Conduct.
To legal professionals who say they’re in favour of improving access to justice for ordinary citizens, these are a few simple, cost-efficient suggestions.
The reasonable person, on whom so many legal principles are based, would be shocked to find out many of these things are going on in first place.
To encourage confidence in our legal system, meaningful action needs to be taken by the legal community itself and their oversight bodies, who are paid by our tax dollars. Many of these changes could be made today, if there’s really a committment to improving access to justice.
The legal profession is known to be risk-averse, conservative, and protective of its traditions and reputation. There’s a reason why those who have the authority to make meaningful change have not acted. For years. Perhaps as lawyers they’re fearful of liability if more people were to find out about these imbalances. The LAT has recently expanded its mandate to cover auto insurance disputes, so to admit these short-comings may be inconvenient.
Maybe social reformer Susan B. Anthony’s quotation applies here:
“Cautious, careful people, always casting about to preserve their reputations… can never affect a reform”.
Will anyone step up to the plate and reform the LAT?