Our Legal System

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With respect to yesterday’s interview with Justice Sydney Linden on Jim Chapman’s CJBK Talk of the Town show, and Mr. Chapman’s definitive statement of supposed fact following that interview, once the Honourable Justice was no longer on the air.

Specifically, Mr. Chapman said that: “…the reality is that they (tenants) get the help they need and landlords don’t.

Now, for some actual facts.

Legal Aid is so underfunded that even some persons who are charged with serious crimes cannot get a certificate. During the 2002/04/27 NewPL Inquiry program titled “Legal Aid in Crisis,” the Area Director of Legal Aid Ontario, Mr. Simon Davies, said “If the offence is, for example, a shoplifting, we’re probably not going to give the person any assistance. If it’s an assault, if I punch Gord (Cudmore) right now, I probably wouldn’t get legal aid.”

Only a shamefully small number of practising Ontario lawyers will even accept the certificates that Legal Aid does issue. In the same Inquiry program, Mr. Davies estimated that only 3,800 lawyers accepted certificates last year out of a total of about 25,000 lawyers in the province.

During the 2002/04/30 meeting of the London Area Committee of Legal Aid Ontario, it was disclosed that “the Legal Aid Plan does not cover all lawyers for all services. It covers lawyers…for certain enumerated services, and landlord and tenant matters are not one of them.”

An applicant to Legal Aid will receive a notice of rejection from the Area Director, which will state that the application has been rejected because “the matter can be handled by another agency” and will indicate that the agency being referred to is Neighbourhood Legal Services.

It was also disclosed by the Area Committee that, in London, Neighbourhood Legal Services is 100% funded by Legal Aid Ontario and is equipped to handle landlord & tenant matters. Unfortunately, getting Neighbourhood Legal Services to provide assistance for such matters is a different kettle of fish entirely.

I’ve been advised by the Ontario Housing Tribunal that duty counsel is available there. And the Tribunal has suggested that such service is provided by Neighbourhood Legal Services. Mind you, when I recounted that information to the receptionist at Neighbourhood Legal Services, she only laughed. So, I’m not sure how to interpret that reaction.

Interestingly, on the Inquiry program, the Area Director disclosed that while only 100,000 persons managed to get legal aid certificates in the province of Ontario last year, 675,000 persons needing legal representation had to rely on duty counsel.

What I do know, is that duty counsel is only a pale imitation to having proper legal representation. A lawyer, no matter how good, who has only a few minutes to glance at a client’s situation, even if that client can provide an extremely well-prepared file of materials, can hardly be compared to the service which can be rendered by a lawyer who has had carriage of a matter for some period of time, and has had an opportunity to prepare a case, to consult and advise with the client at length, to request specific evidence, etc. That is the kind of legal representation that landlord’s can provide themselves with. And you may argue that they have to pay for that service, but in reality, those costs are likely passed on to their tenants or written off their income taxes as a cost of doing business.

And that’s a best-case situation, from a tenant’s perspective. The case of a tenant who, although financially disadvantaged, is somewhat capable cognitively and can prepare a file for the duty counsel in advance of their last-second meeting. What of tenants who are less capable? What of those who suffer from cognitive disabilities?

I haven’t had the opportunity to investigate this yet, but what if duty counsel is not available for all applicants? On the Inquiry program, Gord Cudmore said “people who are representing themselves…means they’re not getting justice…that they’re entitled to…they don’t know the rules, they don’t know how it’s done…they don’t know how to do it.” And the Area Director agreed with that assessment. According to Mr. Davies, “you need a lawyer to develop legal argument. When a person’s unrepresented they don’t know that there are legal arguments, let alone how to make them.”

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