Public Commission on Legal Aid

Submitted by martha on October 15, 2010 – 5:13pm
On October 7th, I appeared before the members of the Public Commission on Legal Aid.
The Panel is asking the following questions:
1. In what circumstances should legal aid be provided in British Columbia?
2. For what legal issues should legal aid be provided in British Columbia?
3. How should legal aid in British Columbia be funded?
4. What should the priorities of the legal aid system in British Columbia be?
I was pleased to see members of both the Provincial and Federal legislatures as well as municipal politicians. At the outset I was asked by the Chair to explain what I meant by pro bono. I told the Panel that pro bono basically meant that all the services were volunteer – in the ALO’s case I told him effectively that no one is paid. This is not legal aid. Legal aid to me is a system that enables lawyers,(and paralegals) to make livings providing competent, consistent effective legal advice to those who are unable to afford a lawyer.
Here is the statement I read.
Thank you for enabling my participation this morning. My name is Martha Rans. I have been a practicing lawyer for 15 years in Ontario and BC – 10 years of which was spent as an employment, labour and human rights lawyer/mediator. In addition to my private practice working with not for profits, charities, co-ops,and small business, I direct a pro bono clinic providing summary legal advice to artists and arts organizations. In the past year we have met with over 100 individual clients and spoken to close to a thousand people through the workshops that I have delivered across the Province. I’d like to share with you a few stories that demonstrate the harm that is caused as a consequence of lack of access to advice and representation in many areas that the public does not often associate with legal aid: issues that arise for many people on a day to day basis: residential and commercial tenancy, employment contracts, contracts for services, basic incorporation and governance. Many of the people that I am talking about are invisible. Like the many who you have heard from before they want to have their problems resolved fairly and effectively – for many as Stephen McPhee pointed out on the CBC this morning they will not end up in Court.
Since I started the ALO in 2006 I have seen all too often the impact of not getting legal advice when it mattered most – artists are for the most part people who buy and sell stuff, and provide services and employ people across the ecomony all over the Province: They are the Baggage Handler who spent the better part of two years in Small Claims Court after his work was vandalized; the artist whose work was lost when the gallery on Granville Island closed due to insolvency and they had no contractual right to have their work returned to them (an all too common scenario). Or the photographer who has had his work appear in everything from the Vancouver Sun to newsletters and websites in the US sometimes without even his name on the photo. For all of these artists we were unable to provide only limited advice. For these artists, their work is their livelihood – they are true entrepreneurs supporting themselves but unable to find let alone pay for experienced advice. For them time also matters and they needed the assistance basically immediately waiting only made the situation worse. These kinds of problems are not of course limited to artists they are the same kinds of problems most of us face daily in what Stephen McPhee called this morning an increasingly complex world.
The other example, are not for profits and charities form a major part of BC’s economy. One statistic that I have heard is that they employ more people than forestry. Yet many not for profits get along without access to legal advice. Going to an annual workshop does not substitute for access to an advisor. Many of you will be familiar with the situation faced by DERA this spring. Right now I am assisting a charity that had its status revoked in 2008 in effect because it did not have access to legal advice when it mattered. We are now unravelling the complexity of CRA remittances, GST, employee severance, residential and commercial tenancy issues, Board governance, antiquated by-laws, privacy, and on and on. This is costing a lot of time and money that could have been prevented had we a system that recognized the need for access to legal advice (and repesentation) beyond the borders of pro bono summary advice. The lack of legal advice is impairing functioning, efficiency, output – not to mention impairing Board and staff recruitment. This should concern everyone here given the important role that not for profits play in many people’s lives. Indeed I would suuggest that everyone here at one time or another probably has sat on a Board, been a member of, or used the programs of a not for profit. In an environment where funding is decreasing I would suggest that we could do more to address preventative measures that would strengthen the sector.
It is my understanding that the Pro Bono Students group will tell you that many not for profits cannot effectively supervise their students and are thus opting to provide legal information themselves yet there is no funding for them to do this. I am sure some of these not for profits are the sames running pro bono clinics. We need to re-evaluate how we are funding this system overall and look at how ineffective it is in terms of resources (especially with the advent of technology). This is where the system fails and where it seems to me we could make a committment to change by prioritizing the areas that are completely unserved.
One of my colleagues who practices in the charitable/ not for profit sector told me that much of his practice was fixing the errors made by inexperienced legal advice or information provided by a layperson. This is an all too common scenario and one that I personally find unacceptable. I have been working with not for profits for 25 years and we can do better. I’d like to see some research on the effectiveness of pro bono programs not about satisfaction of clients but an evaluation that looks at legal outcomes for clients. The advantage of a legal aid system is that we are able (one hopes) to at least evaluate and monitor the impact of legal advice and representation.
So what does a legal aid system look like? First and foremost it is made up of a community of lawyers that have the depth and experience providing legal advice in areas that generally do not pay well. It enables us to develop the experience and competency to provide (as many of us do already) advice to members of the pulic who call our offices or find us on the internet because we have dedicated ourselves to these areas. It also means that members of the public are not walking into the offices of the tribunals and other administrative agencies seeking help where there isn’t any. There are I am sure many stories to be found of people looking for help and not finding any – it is not for lack of trying.
Right now in BC, we have two law schools graduating law students who would like to practice with folks who have limited resources in areas that affect daily life. Articling opportunities are few and jobs in these areas are fewer still. What does this mean to the profession: I think it means that we do not have the depth of expertise in many areas of law as a consequence of our decisions effectively limiting legal aid to criminal and immigration matters.
When I lived in Ontario the government of Michael Harris expanded legal aid clinics when he came into power . There must have been a rationale for that – I hope the Commission will look carefully at the reasons for that expansion. What I do know is that we are using pro bono clinics to fill a void and it does not come close to meeting the needs of British Columbians. A place to start would be to ensure that all the funds that are collected by the legal services tax for the purposes of legal aid are in fact used for legal aid and then to borrow from the world in which I live a lot of the time (copyright) create a balanced system that meets the needs of many people. All of us deserve better.
Thank you.

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