Ultra Vires


Effects of the Pandemic on Access to Justice and Student Caseworkers

An interview with Downtown Legal Services: how the clinic has operated under the stresses of the pandemic

As we begrudgingly observe the one-year anniversary of the COVID-19 pandemic, Ultra Vires checked in with Downtown Legal Services (DLS) to ask how operating under the stresses of the pandemic has been. Not only have low-wage, racialized, and disability communities been some of the hardest hit by the virus, they have also been heavily impacted by a myriad of legal issues that have evolved following the emergence of this pandemic.  Whether it be the housing crisis and COVID evictions, the “shadow pandemic” of violence against women, or the inability to properly engage in the legal system due to delays at the Social Benefits Tribunal and technological blunders, these communities rely heavily on Legal Aid Ontario funded clinics like DLS for representation and help. 

Below are some responses we received from Rachel Bryce (4L JD/MGA, former Summer Caseworker, Refugee & Immigration Law Division), Jennifer Fehr (Staff Lawyer, Employment & University Affairs) and Karen Bellinger (Interim Director & Staff Lawyer, Criminal & University Affairs) on DLS’s pandemic operations and the effects of the COVID-19 pandemic has had on their work and their clients. 

These responses have been edited for brevity and clarity.

Delivery of Service and Internal Operations

Rachel Bryce (RB):  [in recalling Pre-COVID times] A lot of the work [the Refugee & Immigration Division does] was collaborative and took long hours to complete. We were drafting submissions to the Federal Court well past 11 p.m. some nights. The camaraderie and collaboration that came from working together in that nun’s-chamber-turned student-caseworker-office really added to the experience. Then came the “Great Hack” of December 2019 which led to a term of out-of-office working before it was “cool.” Because the system had to be rebooted, we could only work from our own laptops, so most of the work was done remotely unless specific paper files needed review. Despite the challenges associated with that change, it helped set the clinic up for online work over the summer.

Jennifer Fehr (JF): All our files are now cloud-based, so, unlike before, students can access their files wherever they are. Now, for example, when they have to record a phone call they don’t have to wait until they get into the clinic to do it. We also now use Voice over Internet Protocol, so students can do phone intake online. This year we made the decision to forego 1L volunteers, so students enrolled in the DLS clinic for credit courses were the ones doing phone screening. I think this was a positive experience for students, because in the past, we separated this task out: for-credit students were only doing case work and didn’t actually answer the phones. But there’s a lot that happens on the phones that is actually really important. Answering the phones gives you a good view into the unmet legal need that exists in the city. You’re faced with the sheer amount of people who call but the DLS can’t assist, despite the fact that we serve people in six different areas of the law.  

Karen Bellinger (KB): A vast majority of our clientele are living significantly under the poverty line. Many of these clients do not have access to a computer, reliable internet service, or even a private place where they can communicate with their lawyer. During the pandemic, we had set up a computer in our clinic so that our clients could do Zoom meetings with our students at home. Unfortunately, that’s not possible right now given the stay-at-home orders. There have been a couple of clients that we’ve lost contact with completely, so it definitely hasn’t been easy. 

Effects of the COVID-19 pandemic on clients and access to Justice 

RB: We all understood that the impacts of the pandemic were hitting our clients and their communities exponentially harder than us. In the Refugee and Immigration division, travel restrictions have kept clients waiting for status away from their families in Canada indefinitely. People with vulnerable status here in Canada were affected by the fear that they would lose their job or get sick without support. But universally, the delays caused by the pandemic have stretched already ridiculous delays to the breaking points for some clients. Our clients bear heavy weights because they never know whether they will be welcomed into Canada, to join their family, flee persecution, or simply find a better life. The same can be said across divisions. We all saw, and continue to see, how this pandemic exacerbated existing inequalities. Clients in poverty law clinics are already struggling to make ends meet. Then, the global pandemic led institutions to either overlook these communities completely, or worse, to endanger them further through unsafe immigration and criminal detention facilities, evictions, a lack of support for victims of increased domestic abuse, and the list goes on. The importance of poverty law clinics like DLS during the pandemic cannot be overstated. The work they do is always important (and always under-funded), but when the stakes are high, affordable, caring representation is vital.

JF: I think this pandemic has exposed the rifts that were already present in society. For example, the pandemic brought to the forefront the importance of things like paid sick days. Under the Employment Standards Act (ESA), workers in Ontario are entitled to 3 unpaid sick days. With the onset of the pandemic, the Ford government introduced infectious disease emergency leave (IDEL). While this leave is a job-protected leave that allows workers to say to their employer that due to COVID-related reasons — such as symptoms or school closures —they could not work, the leave is still unpaid. 

Significantly, in response to COVID-19, the Ford government introduced regulations to the ESA which suspend workers’ rights to termination pay. Normally, when an employer terminates a worker’s employment, they are entitled to up to 8 weeks of notice or pay in lieu of notice. In addition, where an employer unilaterally makes significant changes to an employee’s work conditions — such as a significant reduction in pay or hours — a worker is said to be “constructively dismissed” and entitled to termination pay. New regulations deem workers whose hours or pay have been cut to be on IDEL and therefore not entitled to termination pay. Similarly, workers who have been laid off due to a temporary shortage in work are also deemed to be on IDEL. Normally, a worker can only be laid off for 13 weeks before they are deemed terminated and then entitled to termination pay. Critically, IDEL leave also doesn’t trigger the clock for these termination rights, and workers can remain without work or at reduced pay, until the summer of 2021.  What this means is that there are a lot of workers right now who are not working or having their pay cut, who don’t know if they’re going back and under what conditions, and who can’t exercise their rights to their termination pay through the ESA now. 

The regulations relate to termination pay under the ESA. Workers have a common law right to reasonable notice of termination of employment as well, which many lawyers believe is unaffected by the changes to the ESA. However, of the four factors in assessing notice periods, one is the availability of similar employment. We’re in a global economic slowdown. What is this going to mean to people’s notice periods? 

DLS also does a lot of work with care workers and there’s been a real increase in legal issues for these clients. They’ve either lost their jobs because parents are now at home taking care of their kids or, for those who have kept their jobs, there was a real labour intensification where they were asked to do much more and have their freedom curtailed, especially for care workers who live with their employer. Due to the pandemic, the employer did not want these individuals leaving the home, which had a huge impact on their mental health and created really bad situations for many of them. Since they’re also stuck at home and can’t go anywhere, they were forced to increase their workload and hours without receiving any more pay. These workers are also facing a slower immigration process because the institutions are working with skeleton staff. We have one client who applied for permanent residency in October 2019 and still no decisions have been made on it. 

With respect to Academic Appeals, I’ve certainly been making increased arguments about student mental health. For students who were struggling but were managing, the pandemic really put a strain on their abilities, so we’re seeing more appeals that are related to the circumstances of the pandemic. It’s also been a challenge for students to access things like a family doctor or accessibility services to support their appeal because all the staff that normally support the process are at full capacity and have slowed down due to the pandemic.  

For the most part, my clients in the Employment and the University Affairs division have access to the internet and phones, so we’ve been okay with doing everything virtually. I will say that one good thing that has popped up is that since public legal education (PLE) is on Zoom, we get way more people attending. We’re seeing like 70 people attend a PLE when normally we used to get 15. That’s a huge difference and I think it’s easier for people to watch something from the comfort of their homes than to schlep down to wherever we’re hosting a session. 

KB:  COVID has definitely put into stark relief a lot of the issues that have persisted for years and hopefully that spurs some change. Even before this time, I tell my students how frustrating it is to do the work that we do every year. Oftentimes, our clients come to us with multiple concerns because they’re living in poverty, and it’s frustrating how few of [the concerns] we as lawyers can address. The law is a blunt instrument, and it can’t always address the issues of, for example, precarious housing, precarious work security and mental health challenges. 

Having said that, in some ways, I feel like the pandemic has made it easier for some of our clients in accessing justice. For example, for “set dates,” normally clients would have to take a full day off from work and physically appear at court at 9 a.m. The court would go through a list of 100-200 people in alphabetical order so if your last name appears later in the list, what was a 9 a.m. appearance would potentially take you to 2 p.m. For clients charged with a criminal offence, you would have to do this once every four to six weeks. So for many clients this means having to take a day off work, find child care, and figure out transportation. Moving to an online process is beneficial for these clients because a lot of things are now scheduled to streamline the process. For those who don’t have access to technology, it’s definitely more difficult, but most of these set dates have phone sign-ins and don’t require an internet connection, so there’s at least that option for some of our clients as well. It’s definitely forced the legal system to move ahead into the 21st century. 

While I recognize that the streamlining of these processes may lead to people no longer criticizing the process as a whole, I do think the criminal law side is actively questioning our processes. Do we really need this set date process? Do we need people to come in every four to six weeks and say, “Hi I’m still waiting for disclosure?” It’s frustrating, time consuming, and wasteful, but these things are getting questioned. I’m hopeful that things will change. It’s just that these systems have been in place for a really long time and they require money to change. That’s always difficult. 

Mentorship, collaboration and not having 1L volunteers this year

RB: We all believe it would have been easier in-person, let alone the social benefits of physically working alongside other divisions. It definitely felt more siloed than we would have wanted. But, the former Executive Director, Lisa Cirillo, the staff lawyers, and our stellar admin staff went out of their way to create such a warm and connected community. Over the course of the summer, we organized a poverty law reading group, podcast group, and caseworker check-ins to re-create a bit of the magic that in-person DLS offers. Through those groups and our training with Lisa, we had the chance to engage with the caseworkers from the other divisions and appreciate just how cool everyone was. DLS never fails to attract the most dedicated, caring, and fun folks.

JF: Not having 1L volunteers this year has been too bad. Every year it’s nice to know that you get the energy of first-years who are interested in being involved in the clinic and to get them excited for the different volunteering and shadowing opportunities that DLS can offer. It also makes me sad that we couldn’t have students and staff working in the offices because that’s where all the collaboration occurs and where all the learning happens. Now when I meet with students, we have to schedule a phone call or a Zoom which makes it seem more formal than them just dropping by my office or me popping into the student offices.  

KB: I was really disappointed we couldn’t have 1Ls volunteer with us as I really enjoy having them be a part of the DLS community. 1Ls learn a lot from staffing the phones, and being immersed in the DLS community opens their eyes to different areas of law. 1Ls also receive a lot of mentorship from the upper year students who have been at DLS for a while. This is probably something that they haven’t been able to get, but I’m hoping next year we’ll have some first-year volunteers. 

In terms of the credit courses, we wanted to make sure that everything was easily accessible for students by recording all of our sessions and classes and making them available online afterwards. Anyone can have technology issues so we didn’t want students to miss anything through no fault of their own. 

I do want to thank all the students and staff for bearing with us and the clinic throughout all of this. I know it hasn’t been easy, and I know it’s stressful doing things remotely, but I’m really thankful for all the effort everyone’s put into making this year as successful as it has been, despite all the challenges.

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