Obtaining Access to Justice : an Ongoing Challenge

By : Clarisse N'Kaa

The process of gaining access to justice is remarkably complex. This complexity resides in the variety of individuals seeking recourse, the diversity of needs to be addressed, and the range of emotions it provokes.

Discussions on how to improve access to justice have been going on for a number of years now and have resulted in several new initiatives. Noteworthy among these was the reform of the small claims court, which made it possible for people to file a claim without the aid of a lawyer. This, in turn, made it less expensive to obtain legal recourse.

In theory, eliminating financial barriers should have made the small claims court the ideal tribunal for consumers. Yet statistics show the contrary. Starting in 1998, a first CROP survey ordered by Option consommateurs revealed that over the previous five years, only 6% of respondents had sought recourse to a small claims court. In 2010, another study revealed that few consumers were making use of the court, particularly for sums less than $200.

So the question raised by these findings becomes: Should efforts to improve access to justice go beyond the functionality of the system and be directed, instead, toward those who use it? For many people, the law seems like a set of rules and regulations that are completely detached from reality. The definition of access to justice obviously needs to be broadened.

In Canada, this notion has evolved beyond the traditional public legal system to include tools for prevention and dispute resolution.  However, the advent of these tools raised fears that the weakest and poorest among those seeking justice will renounce their rights or attempt to assert them outside the legal system.

In 2016, legislators in Quebec integrated private tools such as mediation, negotiation and arbitration into the Code of Civil Procedure. These tools were strengthened by the addition of certain procedural guarantees. The different parties can now base their approach and their agreements on the specific values and interests that are important to them. All they have to do is to ensure that they are respecting others’ rights and freedoms, and public order.

Other provinces have also taken steps to improve access to justice. In May 2015, British Columbia amended its law to turn the Civil Resolution Tribunal into an online court. The first of its type in Canada, this court is used primarily for small claims cases. In Ontario, certain clauses of the Rules of Civil Procedure now call for obligatory mediation in specific types of cases.

These changes clearly demonstrate the legislators’ desire to create tools that will take citizens’ perceptions of justice into consideration as far as possible. The same thing is happening in consumer legislation, where new initiatives such as pilot projects for obligatory mediation and platforms for online dispute resolution are being introduced.

The need to obtain justice is critical for every litigant, but in the field of consumer rights, where litigants form a very heterogeneous group, the issue raises several specific problems. Solutions are now being put in place to respond to a variety of needs and to remove many obstacles. However, these solutions can still create challenges for vulnerable consumers. How will the changes affect the elderly, or those lacking computer skills, or those using the justice system for the first time?

The effort to improve access to justice raises a number of considerations regarding the most vulnerable members of society. Further reflection is required on how best to accompany such individuals.