True Access to Justice Means Effective and Consistent Access to Services

Written by Jennifer Leitch, NSRLP Executive Director; originally published on Slaw, Canada’s online legal magazine.

The search for legal information and assistance

The current design of our legal services delivery system makes Ontario’s access to justice crisis worse. Far too many Ontarians who cannot afford a lawyer struggle to find help from a disjointed cluster of private and public legal service providers. Rather than participating in an integrated intake and referral process that could direct people to the appropriate resource based on the type of problem they are experiencing, their eligibility, and the level of intervention they require, front-line agencies (struggling to keep-up with rising demand) waste thousands of precious hours each year interacting with people they do not help, only to refer these people to other agencies that may not be able to help either.

For those attempting to access justice in Ontario, securing legal assistance is often a fragmented and exhausting process. Traditional legal representation contemplates a person retaining a lawyer who addresses the individual’s legal issue on their behalf. But for many low-income individuals in Ontario retaining a private lawyer is simply not an option. The reality is that people often cobble together assistance from legal information and advice from a variety of sources, or attempt to access a variety of services and organizations. In many instances, the sources sought out cannot meet the overwhelming demand for their services, or cannot assist individuals with their particular legal needs. These realities mean that many individuals attempting to access justice in Ontario will contact multiple organizations to try and resolve their legal issues, often being referred on to other agencies or individuals before receiving any helpful information or assistance, if they find help at all.

There are a host of challenges associated with undertaking repeated (and unsuccessful) searches for legal advice and direction: individuals must repeat their story over and over; time is wasted waiting for over-worked and under-resourced agencies to call the individual back; and individuals are referred to other organizations that cannot assist them for a variety of reasons. Further consequences are the resultant delays in accessing justice (and corresponding problems that delays in resolving every day legal problems create – this is particularly true of certain legal issues such as housing, social assistance, and relationship breakdown[1]) or alternatively, the ‘lumping’ of legal problems. Neither of these outcomes are consistent with access to justice.

Recent research: Finding the right service provider for individuals seeking legal assistance in Ontario

Recent research undertaken by Pro Bono Ontario (PBO) and the National Self-Represented Litigants Project (NSRLP) has attempted to tackle some of the dimensions of this complicated problem. In a series of surveys directed at clients of PBO and self-represented litigants from the NSRLP’s database, PBO and NSRLP sought to highlight the challenges associated with individuals’ search for legal assistance, the need for an integrated legal services delivery model, as well as what that model might entail. The underlying belief is that an integrated legal services delivery model would optimize individuals’ access to legal assistance, improve outcomes, and respond to the continuing challenges associated with scarce legal service resources. Importantly, this research solicited individuals’ perspectives on their experiences attempting to access legal assistance, as well as what they needed from the legal services they contacted. The research project collected a total of 238 interviews with litigants, as well as 15 service providers (primarily community legal clinics serving clients in Ontario).

Generally speaking, 30% of the survey respondents had contacted 3 or more agencies before reaching PBO. In the case of the NSRLP, over 60% of the SRLs who accessed the NSRLP’s resources had contacted 3 or more agencies before reaching the NSRLP and in fact, in the case of individuals seeking assistance with family law matters, 45% of the SRLs surveyed had accessed 6+ sources of help. Further, many of the NSRLP interviewees felt that the overall assistance they received was not sufficient to resolve their problem.

In a majority of cases, the individuals surveyed characterized their search for help as being in the medium to high range of difficulty. This difficulty level is associated with sorting where to go and how to make contact, navigating eligibility criteria, repeating their story, and then being referred on from places that could not help them. While there are additional difficulties associated with geographical access, intake forms, and language barriers (once assistance is located), this research demonstrates that one of the more challenging aspects of securing legal assistance is associated with identifying the right path to that assistance. In addition to the problem of not finding the right legal assistance, there is also a significant inefficiency and waste of resources when individuals are often referred on and organizations spend time completing intakes only to determine that the individual cannot be assisted by that particular organization.

From the perspective of the agencies delivering legal assistance, there is a recognition that referral services vary, and as a result, time is often spent re-doing intake processes and triage notwithstanding receiving a referral from another organization or individual. This also applies to agencies referring individuals on to other services. In some cases, this is an informal process, while in others, it is a more complicated process – the problem being that there is no consistency between entities and no designated paths to access. Notwithstanding these challenges, the research reflected these organizations’ openness to developing and working with standardized client data that could be integrated into their own practices and more effectively increase their capacity to make effective referrals. For the organizations surveyed, this would likely improve their ability to affect justice in their work.

An integrated legal service delivery model

An integrated legal service delivery model contemplates agencies coordinating and collaborating on the delivery of legal services such that barriers to service and inefficiencies in the delivery of appropriate services are reduced. Underscoring this approach to the delivery of legal services is the understanding that there is a broad spectrum of services and assistance that could be made available to the public. Furthermore, not everyone who has a legal issue requires full legal representation in the traditional sense. For some individuals, legal assistance in the form of comprehensive information and advice would allow them to handle their matter on their own. For others, a form of unbundled legal services or legal coaching would suffice, while there would remain a group for whom full legal representation is necessary and appropriate. Notwithstanding this range of services, there is a general belief that everyone who has a legal issue does require some form of guided engagement with the legal information that they secure. In other words, even with the clearest and most comprehensive legal information, there is still likely a need for some legal advice. The research conducted by PBO and the NSRLP indicated that individuals are open to a range of services and methods of communication, but the overwhelming majority of individuals preferred live forms of interaction to written communication. In fact, 74% of the PBO clients interviewed chose telephone conversations as their preferred mode for accessing legal information and advice.

By contrast, the existing patchwork of legal services for low-income individuals is fragmented and inefficient. Individuals are often turned away from organizations because the organization does not have sufficient resources or because the organization does not provide services in that area. Individuals waste time and energy moving between organizations, waiting to hear back from organizations only to be told that they do not qualify for assistance or cannot be helped. Moreover, individuals are provided a limited range of services – often it is either full representation or nothing, when it may be the case that with some guidance the individual could resolve their own dispute, thus, freeing up more comprehensive services for those with complex needs and intersecting legal issues. This current state of affairs does not encourage access to justice. It does not make the best use of limited resources and it does not encourage collaboration, cooperation, and support among services providers. Unfortunately, the opposite tends to be true, where siloed organizations struggle with their intake processes, the delivery of legal services in specific legal fields, and efficient use of referrals.

The response to some of these problems is the development of a triage system and inter-agency referral system such that case and client information once obtained would be sufficient to support the provision of consistent service and minimize the need for an individual to ‘re-tell’ their story. This would mean that information and documentation initially collected from an individual who contacts a single-entry point would satisfy the information needs of other agencies along the service continuum. This contemplates an expanded and integrated legal service delivery system that is technologically sophisticated enough to collect the information required (via an online case management system) and refer the individual to the appropriate service. Multiple agencies and organizations that provide different levels and types of legal services would participate in this system. This does not mean individuals could not contact agencies directly or remain at the agency they contacted (assuming the agency can assist them), but rather that there would be a system in place for the vast majority of individuals who are searching for assistance, cannot find it and/or are moved on from one source of information or agency to another.

The benefits of such a triage/information gathering and referral system are immense from the perspectives of both individuals seeking access to justice and the agencies that attempt to provide access to justice. While the challenges are significant, they are not insurmountable. The first step is a willingness and commitment to deliver legal services in a multi-faceted and efficient manner. The following step is to develop a pilot project that may start with a limited number of agencies such that differing service models, information needs, and technological capabilities can all be identified and addressed. Based on the current realities and the research findings of PBO and NRSLP, such a system would provide better access to justice for low-income Ontarians.

I would like to thank Dayna Cornwall, Moya McAlister, Lynn Burns, and Yonit Fuhrmann for their very helpful commentary and editing.

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[1] See Ab Currie, “A National Survey of the Civil Justice Problems of Low-and Moderate-income Canadians: Incidence and Patterns” (2006) 13 (3) International Journal of the Legal Profession 217 at 230