With all the recent talk about lawyers going “bad”, it’s time to put a spotlight on lawyers doing good. Pro Bono Law Ontario (PBLO) is just one example of the charitable nature of the Bar.


PBLO is a charitable organization that provides lawyers who do pro bono work for clients of limited means. The organization is following up the success of their recent Small Claims Court Pro Bono Duty Counsel Project with something even more ambitious — a pro bono duty counsel project in Superior Court.


Lynn Burns, executive director of PBLO, was overwhelmed by the support the small claims program had from the Bar. “We asked for 24 lawyers from each of the big firms and they gave them to us.”

She says that the Small Claims court project was so successful, it is now expanding to five days a week, and they have 18 of the top 25 firms in the province participating. “This is a win/win situation, not only for increasing access to justice and addressing the problem of unrepresented litigants, but also for the firms who are very happy that their young associates are getting into court. It is great professional development for them.” She has equally high hopes for the Superior Court project.


Ian Collins, an associate in his third year at Fasken Martineau, was one of the first to be involved in the small claims program, as Faskens was one of the original four firms to sign on. He is very enthusiastic about his experience with the project. “You learn a lot about solving people’s problems.

There is no shortage of challenges. The clients have a wide range of problems, from having a trial that day, to just wanting advice.”


Young lawyers like Ian Collins are very conscious of the cost of legal services, the plight of the impoverished and the importance of giving back to the community. Burns says, “New lawyers are looking for firms that value pro bono work and treat it as billable time. Firms are smart to pay attention to what young associates want. Some firms now use the fact that they do pro bono work to recruit students.”


Collins agrees. “Associates are looking for a connection to the public interest. They go into law because of that. Students want firms who live up to their advertising and do pro bono work. It creates good relations within the community, to know that we’re not just sitting in our tower.”

Collins goes on to say that Fasken Martineau has a policy of treating the first 50 hours of pro bono work as billable time, with the possibility of extending that number upon approval. Collins is enthusiastic about the expansion of the pro bono project to Superior Court, and anticipates that more experienced associates will want to become involved after they’ve worked with the small claims court program.


The new Superior Court duty counsel program, which will be run out of the first floor of 393 University Avenue in Toronto, will be known as Law Help Ontario, and will operate with funding from the Law Foundation of Ontario. Burns explains how the program will work: “We have hired a paralegal who will act as a courthouse facilitator, almost like a triage nurse, who will do an intake assessment and determine what services are needed. If the person is financially eligible, we will schedule an appointment with the duty counsel. There will also be a resource library and assistance with form completion.” They plan to roll out the project in phases, based on the model that they used for the small claims court duty counsel project. In the beginning the clinic will offer procedural advice, and if all goes well, will expand to include more services, such as appearing on motions.

Burns emphasizes that their financial criteria are less strict than Legal Aid, with the hopes of assisting those people who earn too much to qualify for legal aid but too little to hire their own lawyer.


Burns is optimistic that the Superior Court program will be as successful as the small claims court project. “One thing that spoke volumes about the small claims court project is that there was seen to be more procedural fairness.” According to the final report, 77 per cent of clients served agreed that access to the pro bono services made the court process seem fairer, whether they won their cases or not.


The problem of unrepresented litigants is getting worse, according to Diana Lowe of the Canadian Forum on Civil Justice. The forum was created nine years ago following a CBA report which recommended that, because civil justice is administered provincially, there should be a clearinghouse for the sharing of information and initiatives in civil law across the country. That report also concluded that the civil justice system was too complex, that proceedings take too long, and they cost too much.


But the high cost of legal proceedings is only one reason why the numbers of self-represented litigants and accused persons are increasing. Lowe says that those who appear in court without a lawyer tend to fall into several distinct groups. Surprisingly, those who access legal clinics tend to be quite well-educated, although of low income.


According to Lowe, litigants who are poorly educated, and have “an overall lack of social resources,” are very unlikely to access available services because they don’t know what is available, and don’t even know where to begin to look. There are those with additional barriers, such as language or mental or physical problems, or even family situations which prevent them from getting out to access the services. Some are simply unable to find an available lawyer. “This is a far more pervasive problem than we thought,” says Lowe, and is especially significant for those in northern or remote locations, as well as for litigants whose cases have merit but may not have the expectation of a high quantum of recovery. Other self-represented people fall into the categories of those who were previously represented but couldn’t continue because of cost, and people who are supposed to be able to handle their cases themselves (such as small claims court). “Self-help centres are especially useful for these groups,” says Lowe. The final group, which is a small percentage but perhaps more visible, comprises those people who could hire a lawyer but prefer to represent themselves.


The forum is working on a huge undertaking at the moment. They are mapping all the justice services available in Alberta, to identify where there are gaps in service and where needs are most urgent. “That will inform the creation of further self-help clinics,” Lowe says.


Jimmy Yan, project manager for The Western Canada Society to Access Justice, a non-profit agency that coordinates pro bono work in B.C. and the western provinces, feels that rather than being an indication of what is wrong with the system, pro bono clinics serve a positive purpose. Over 60 per cent of their clientele come from Asian, First Nations, Latino and African backgrounds. “Many are new immigrants,” he says. “By using our free legal service they learn what the Canadian legal system is.”


They offer brochures in multiple languages. “Education is key. There are lots of service providers, but if people don’t understand what is available, then it is not useful.” They have over 400 lawyers on their roster, who donate two hours of free legal service per month, as well as 100 volunteers, who are often law students.


Chief Justice Marc Monnin, of the Court of Queen’s Bench, Manitoba, chaired the Canadian Judicial Council’s sub-committee on self-represented litigants. The committee created a Statement of Principles on Self-represented Litigants and Accused Persons which was adopted by the Canadian Judicial Council in September, 2006. Chief Justice Monnin says that the Statement “was a method by which judges and participants in the legal system could be helped with information and guidance when dealing with the situation of unrepresented litigants.” It contains principles on promoting rights of access, promoting equal justice, the responsibilities of the participants in the justice system (including the judiciary, court administrators, the Bar, and the self-represented litigant). Although the Statement of Principles says that judges, where appropriate, can provide self-represented persons with information to assist them in understanding and asserting their rights or to raise arguments before the court, Chief Justice Monnin doesn’t think that creates any unfairness to those on the opposing side who are represented by counsel. “I believe that while judges will ensure there is a fairness to a proceeding that may in certain circumstances include giving information to a litigant, at the end of the day a judge will make a decision based on the information before him or her…Simply asking questions doesn’t make a judge an advocate. It is simply a question of bringing out the information which will enable the judge to make a decision.”


Lynn Burns says that Pro Bono Law Ontario has received support from The Advocates’ Society, and the Attorney-General, as well as court staff and judges. She says, “we have found a unity of interest among all the stakeholders—everyone is committed to this project. The profession has taken a lot of criticism lately, but in their defence, they are really stepping up and doing their part to participate.”