(Cartoon from The New Yorker magazine)
One step forward, five steps back
At the highest levels of the legal profession, alarm bells have been ringing for years about the growing access to justice crisis for ordinary middle-class people who can’t afford the high hourly cost of lawyers to resolve everyday legal problems. Access to justice in Canada has been described by senior officials as “abysmal”.
Lawyers, judges, and lawmakers have all been urged to be part of the solution, not add to existing problems.
Premier Wynne, her Attorney-General Mr. Naqvi, and Minister of Consumer Services, Ms. MacCharles, seem to have not received the memo.
Here’s a timeline on an access to justice ticking time bomb the Wynne/McGuinty government has known about for decades, has publicly acknowledged, but failed to fix.
1) After years of complaints from consumers that they can’t get their new home construction defects resolved through the government’s monopoly, Tarion Warranty Corporation, Premier Wynne ordered a review of this arms-length agency of government in Nov. 2015.
2) The year-long review was conducted by a well-respected judge, consulted broadly with stakeholders, cost $750,000, and was released in 2017. It found “conflicts of interest”, “fundamental problems” with Tarion. It advised 37 changes, the main one to abolish the monopoly and bring in a competitive model for new home warranties.
3) The government brushed aside most of the review, without explanation, especially the key advice to abolish Tarion’s monopoly.
4) A consultation group was set up by the Ministry of Consumer Services, and was presented with a different framework than the judge recommended. The participants were stacked toward Tarion, those with business ties to Tarion, and members of the legal profession. Government lawyers were also present. Much of the judge’s key advice was ruled out of scope, for unexplained reasons.
5) The government introduced new legislation, bill 166, in November 2017, which gave the industry and Tarion what they wanted: to keep the monopoly Tarion, and give builders their own regulator. Consumers were left wondering where’s the consumer protection?
6) It seems we’re back now to where we started, a few baby steps forward, giant steps backward. Back to the Tarion in-house legal department protecting Tarion’s interests not the consumer’s, a monopoly with minimum oversight paying cushy executive salaries, the License Appeal Tribunal for disputes where the consumer loses 90% of the time, and the same internal ombudsperson reporting to Tarion, not perceived by the consumer as independent or impartial, and who avoids getting involved in warranty disputes.
Now the consumer won’t have to prove the cause of the defects apparently, but Tarion and builders undoubtedly will, since their interests are to deny claims and limit the amount of pay-outs, leaving consumers with one of the conflicts of interest the judge highlighted.
In order to be credible and balanced, dispute resolution has to be independent, impartial, cost-efficient, and timely. Each party has to have equal access to independent experts, and fair and balanced advice.
Bill 166 seems totally inadequate and overly vague. It’s fake consumer protection, with the usual posturing about consumers first, fairness and transparency, without delivering much of any of it.
This bill may lead to more problems. There’s still no fair, timely, cost-efficient, and balanced dispute resolution process which is clearly defined for consumers to rely on. Telling consumers they don’t have to prove the cause of the defect, while the opponents most certainly will, is not leveling the playing field, but shifting the goalposts, giving the most vulnerable party a false sense of security.
This government will likely pass bill 166, despite important amendments urged by Opposition MPPs, consumers, and consumer groups this week in depositions to the Social Policy Committee.
Lawmakers had one chance in 40 years to fix the Tarion problem once and for all. The problems and solutions were objectively researched and presented to Premier Wynne, Ministers MacCharles and Naqvi, and government lawyers. Instead of fixing the problems, they seem to have left us with more access to justice misery.