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Tribunals constitute a vitally important part of Canada’s justice system, but their place in the Canadian state is fragile and their essential function is misunderstood. This article explains the need for pro-functional tribunal law, which would position tribunals to consistently deliver on their potential. Differentiating tribunals dedicated to resolving legal disputes from non-tribunal agencies that do other work is the key. Differentiation would advance goals related to specialization, the separation of powers, and democracy in Canada. It would allow tribunals to escape the taint of partiality to government. It would also set the stage for a professionalization and depoliticization of tribunal appointment practices, securing tribunals and their users from the type of dysfunction that has recently plagued Ontario’s tribunals. The final Part of the paper argues that the Canada’s legislatures, rather than its appellate courts, are the most promising venue for the adoption of pro-functional tribunal law.

Each year, over 100,000 Ontarians seek justice from Tribunals Ontario. This group of people —the size of a small city— includes tenants, landlords, motor vehicle accident victims seeking insurance benefits, people denied disability benefits, and those who believe that their fundamental human rights have been infringed. This group of 100,000 is significantly larger than the […]

Four of Ontario’s highest-volume adjudicative tribunals became seriously dysfunctional in late 2018. Systemic delays of months or years arose, basic procedural rights were abandoned, and substantive miscarriages of justice became common in the fields of residential tenancy, human rights, and entitlement to benefits. This article describes these symptoms, before seeking to diagnose the underlying problem. The proximate cause of the dysfunction was the approach to tribunal appointments taken by the executive branch of Ontario’s government. Members appointed by the previous government were “de-appointed” en masse, and meritorious replacements were not found promptly. Some of these problems began prior to 2018. Shortcomings in the other two branches of Ontario’s government also contributed to the dysfunctionality. The Ontario Legislature’s statute governing adjudicative tribunals, and its committee overseeing appointments, lacked the powers and resources that would be necessary to safeguard them from executive neglect. Meanwhile, Ontario’s courts are not an accessible and proportionate forum to backstop adjudicative tribunals. Moreover, a review of the case law shows that they lack doctrinal tools to hold the Government responsible for systemic delay and counterproductive appointment practices.

How much does it cost individual Canadians to seek civil justice? This article compiles empirical data about the monetary, temporal, and psychological costs confronting individual justice-seekers in this country. The article suggests that analysis of private costs can improve access to justice in two ways. First, it can help public sector policy-makers to reduce these costs. Second, it can help lawyers and entrepreneurs to identify new, affordable ways to reduce the costs that are most onerous to individuals with different types of civil legal need.

Judicial Review' means a court reviewing a decision made by an administrative tribunal. When judicial review occurs, should the tribunal be allowed to send a lawyer to court to defend its decision? I think it generally should, and this article explains why.

‘Abysmal’ was the word used to describe the accessibility of Canadian civil justice in a recent major report. Access to justice is simultaneously a social problem, a professional obligation for the legal profession, and a market opportunity for law firms. Are there any signs of significant progress on any of these fronts? This short Correspondent's report will review recent Canadian efforts to connect people of modest means with the expert legal services they urgently need.

In common law Northern Europe and in Australasia, a wave of reform has been transforming legal services regulation since roughly 1980. Old structures and approaches, based on the principles of professionalism and lawyer independence, are being replaced in these jurisdictions by new ones that prioritize competition and consumer interests. In the United States this has conspicuously not happened, leaving intact a regulatory approach whose broad outlines have changed little in the past 100 years.

High prices and lack of innovation have placed expert legal services beyond the reach of too many Americans and Canadians. Is legal services regulation exacerbating common law North America’s access to justice problem? Does regulatory maintenance of a unified legal profession, and insulation of that profession from non-lawyer influence, make it more difficult for people here to meet their legal needs? This article argues that, although regulatory liberalization is not a magic bullet for the accessibility of justice, there is strong evidence of a link between regulation and access. North American lawyer regulators need to understand, and work to reduce, the effects of their policies on the accessibility of justice.

This paper considers the different types of challenges that technological innovation poses to the Legal Services Act 2007’s regulatory framework, and whether the framework is capable of supporting technological innovation that benefits consumers while also addressing the risks it poses to them.The paper makes some recommendations about how the current regime could be adapted to better address these challenges, but its overall conclusion is that the LSA regime remains capable, for the time being, of responding to them.

When an intimate relationship breaks down and one of the people involved seeks money from the other, should it make any difference to the law whether or not they were formally married? This article argues that it should make a difference, at least when spousal support is being sought and the parties were never parents together. Winner of the 2008 Falconer Memorial Student Essay Competition in Family Law.

Research paper prepared for the Law Commission of Ontario.

When lawyers elect the leaders of their self-regulatory organizations, what sort of people do they vote for? How do the selection processes for elite lawyer sub-groups affect the diversity and efficacy of those groups? This article quantitatively assesses the demographic and professional diversity of leadership in the Law Society of Upper Canada.

There are two possible forms of evidence in a custody or access (visitation) case which is determined through adjudication. First, the judge may hear from the adult parties and the witnesses whom they choose to call. Second, the judge may hear "children's evidence," which comes either directly from the child, or from a neutral professional with child-related expertise. To determine the prevalence of children's evidence in Canadian custody and access litigation, the author conducted a quantitative survey of 181 reported decisions from 2009. The central finding was that only 45% mentioned any form of children's evidence. Among the various varieties of children's evidence, assessments (also known as child custody evaluations) were much more common than legal representation of children or direct evidence from children. The paper concludes by contrasting the primacy of the child in custody and access doctrine with the reality that the children involved appear to be effectively silent in the majority of the adjudicated cases.

This article proposes a theoretical foundation for measuring legal service value. It aims to support efforts to compare the value of offerings from different law firms, as well as alternative legal service providers. The value of any legal service depends on (i) its effectiveness, (ii) its affordability, (iii) the experience it creates for its clients, and (iv) third party effects (the impact the service-provider has on people other than the client). These four elements of value can be quantified through various metrics applied to firms or entities that provide a given service. Output metrics evaluate either the actual real-world impact of a legal service service, or the written and oral work products of the firm. Internal metrics check for processes or structures within a firm that demonstrably support high value outputs. Input metrics focus on the attributes and credentials of the individuals who provide the service.This article concludes that measuring legal service value is challenging, and may be dangerous if done poorly. Nevertheless, the rewards justify the challenge. Higher quality legal professionalism, more effective and less burdensome regulation, and consumer empowerment are among the payoffs if we can find better ways to measure legal service value.

A life-evaluation question asks a person to quantify his or her overall satisfaction with life, at the time when the question is asked. If the goal of public policy is to make individuals’ lives better, does it follow that maximizing aggregate life-evaluations constitutes policy success? This paper argues that life-evaluation data provides a solid basis for welfare-consequentialist policy-making. This is illustrated by the successful argument for expanding state-funded mental health services in the United Kingdom.However, life-evaluations do not always provide a complete account of individual welfare. Policy-makers therefore must sometimes inquire into the extent to which individuals’ preferences would be fulfilled, if different policies were to be adopted. This article proposes synthesizing life-evaluationist and preferentist data about individual welfare, as a basis for rational policy-making.

"Personal plight" is the sector of the legal services industry in which the clients are individuals, and the legal needs arise from disputes. This article proposes that competition among personal plight law firms is suppressed by three demand-side phenomena. First, consumers confront high search costs. Identifying competing law firms willing and able to provide the needed services often requires significant expenditure of temporal and psychological resources. Second, comparable price and quality information about firms is scarce for consumers. Both of these factors impede comparison shopping and reduce competitive pressure on firms. A third competition-suppressing factor is observed in tort legal service markets, where offerings are typically priced on a contingency basis. Contingency fees have relatively low salience to consumers, and this reduces consumers' willingness to negotiate and comparison-shop on the basis of price. This analysis is supported by the author's empirical research with Ontario personal plight lawyers as well as the existing literature. The article concludes by suggesting possible consequences of this analysis for regulatory policy.

Innovation in family law firms can tangibly improve access to justice in Canada. This article develops that claim by drawing on empirical data and scholarship about Canadian family law. Part 1 explains how and why legal needs arising from the dissolution of intimate relationships are so difficult for the parties to meet. This Part draws on civil legal needs surveys, surveys with lawyers, and data from interviews with litigants. The focus shifts to family law firms (including sole practitioners) in Part 2, using new empirical data about the Canadian lawyers who do this work. Three promising opportunities to innovate for accessibility in family law practice are identified: (i) innovative fee structure; (ii) innovative service variety; and (iii) innovative division of labour. A "third revolution" in Canadian family law is proposed in Part 3. Our family law doctrine was revolutionized beginning in the 1960s, and family law alternative dispute resolution was similarly transfigured beginning in the 1980s. It is now time to foment a third revolution, in family law practice accessibility, to bring the benefits of family justice to all Canadians who need them.

When proposals are made to reform legal procedure, improving access to justice is often identified as the goal. What does access to justice mean in this context? This article proposes that “better access” and “better justice” should be understood as two distinct goals. Access improves when procedural costs confronting litigants (and potential litigants) are reduced. Justice has three qualities – substantive justice, procedural justice, and public justice – which legal procedure can produce to a greater or lesser degree. Although access and justice are sometimes in tension as goals for procedural reform, they are also harmonious. Better access to better justice is a worthy goal for procedural reformers. Welfare-consequentialism is introduced in the final part of the article, as a way to focus access to justice reforms and make the necessary tradeoffs. This article’s argument is illustrated throughout by three procedural reform trends – mandatory mediation, small-dollar procedure, and inquisitoriality.

Forthcoming, The Political Quarterly.This article is about two ideologies. Welfare-consequentialism holds that government should adopt the policies that can rationally be expected to maximize aggregate welfare. Populism states that society is divided into a pure people and a corrupt elite, and holds that public policy should express the general will of the people. The responses of world governments to the coronavirus pandemic have clearly illustrated the contrast between these ideologies, and the danger that populist government poses to human well-being.I argue that welfare-consequentialism offers a vaccine for populism. First, it rebuts populism’s claims about who government is for and what it should do. Second, the pessimism and distrust that make people crave populism can be satiated by successful welfare-consequentialist government. Finally, welfare-consequentialism’s sunny narrative of progress can be just as compelling to people as populism’s dark story has proven to be.