The Attorney General of Ontario failed to answer questions about low legal aid thresholds and accessibility issues created by modernization
On September 18, 2024, the Attorney General of Ontario, Doug Downey, spoke at a fireside chat hosted by the Runnymede Society at the University of Toronto Faculty of Law. Mr. Downey spoke at length about his political journey, as well as his efforts to improve access to justice by modernizing the court system. Unfortunately, Mr. Downey’s answers to two questions posed by the audience during the Q&A portion revealed his lack of insight into the problems faced by many Ontarians in acute access to justice.
Access to Legal Aid
Ontario faces significant access to justice problems due to restrictive financial eligibility criteria for legal aid. Under Ontario’s Legal Aid Service Rules, a single adult cannot receive legal aid services if they earn a gross annual income exceeding $22,720. This means that an Ontarian who makes more than $22,720 a year will not receive a legal aid certificate for a publicly funded-private lawyer, nor can they receive services from community legal aid clinics or duty counsel.[1]
When I did phone intake as a caseworker at Downtown Legal Services, I would often receive calls from Ontarians who didn’t meet the financial requirements for legal aid services but could not afford to hire a private lawyer. Individuals belonging to this so-called ‘sandwich class’ are in a quagmire because their income prohibits them from effectively accessing legal services. I asked Mr. Downey a simple question: “How can we help these individuals?”
Mr. Downey addressed this question by explaining how his government has generally improved access to justice for low-income individuals. First, he explained that his government increased the funding of community legal clinics by seven million dollars. Second, Mr. Downey said that his government increased the remuneration of lawyers working on legal aid certificates by five percent over the span of three years, to encourage more lawyers to work on these files.
However, neither of his solutions addressed the issues experienced by those in the ‘sandwich class.’ These individuals cannot apply for legal aid certificates, receive services from community legal clinics, or get help from duty counsel because they do not meet the financial eligibility limits set by Legal Aid Ontario. Accordingly, increasing funding for community legal clinics or increasing lawyers’ remuneration does nothing for these individuals. In fact, it is troubling that Mr. Downey seems to believe that paying lawyers more is the solution to help people who cannot afford lawyers.
Accessing the Courts
The second question was posed by an audience member in response to a topic that Mr. Downey had brought up earlier. Mr. Downey had proudly explained how he modernized the court system by transforming Landlord and Tenant Board proceedings from physical courtrooms to virtual ones. According to Mr. Downey, access to justice has improved because parties can now participate in court proceedings from the comforts of their home without having to step foot in a courtroom.
Unfortunately, the reality is that many tenants are involved in Landlord and Tenant Board proceedings because they have been evicted from their homes. While landlords can certainly attend hearings from the comforts of their homes, individuals who are now unhoused are often left searching for a suitable place to conduct their hearing.
Moving to remote hearings also poses other access to justice issues. Individuals who don’t have access to a smartphone or the internet might have trouble participating in virtual hearings. These difficulties might also be experienced by individuals who are not technologically adept or those who have an accessibility need which makes remote hearing more challenging.
An audience member highlighted these issues and asked Mr. Downey why parties in the Landlord Tenant Board cannot request in-person hearings. Mr. Downey responded by saying that in three Ontario cities, there are options for parties to appear in an in-person courtroom. Individuals may also be able to attend court proceedings in a community legal clinic. He emphasized that the move from in-person to virtual courtrooms was a response to the pandemic, and there is “no way” we can move back to fully in-person hearings.
Mr. Downey’s solutions are clearly unsatisfactory. It fails to address the issues faced by Ontarians who don’t live in a city where the parties may opt to hold hearings in-person. Asking overworked community legal aid clinics to solve this problem is also problematic since many individuals are not eligible for their services in the first place. In his eagerness to push forward with “modernization,” Mr. Downey seems to have failed to consider the experiences of marginalized groups.
Improving Access to Justice Starts With Acknowledging That a Problem Exists
These issues are difficult. I am not suggesting that there is a simple, ‘magic pen’ solution to the problems of access to justice. But improving access to justice starts with acknowledging that there are individuals in a ‘sandwich class’ who are not eligible for legal aid and cannot afford a private lawyer. It comes with the realization that modernization of court systems may streamline the process for some but cause difficulties for others. Mr. Downey’s failure to recognize the nuances in these issues and provide a clear path forward should worry law students and Ontarians alike.