Law Times

Page 6 OctOber 28, 2013 • Law times COMMENT u Editorial obitEr By Glenn Kauth EU deal a significant achievement W hile there was initial fanfare about the proposed freetrade agreement with Europe, the explosive developments in the Senate scandal last week quickly overshadowed the landmark deal. Prime Minister Stephen Harper is rightly taking his lumps for the Senate controversies, but the government deserves credit for achieving the landmark agreement in principle. It's no small feat given the size of the European market and Canada's success in getting ahead of other countries on the issue. Despite Harper's pronouncements aimed at forestalling opposition to the deal, there are legitimate questions and concerns. Local procurement policies, the dairy and wine industries, and provincial governments that buy drugs all stand to come out on the losing end of the deal. There are also concerns about protections for foreign investors and questions about whether Canadian companies will really be able to secure much additional business through the deal. But the concessions aren't as significant as some people had been suggesting and, of course, they're a reality of negotiating trade deals. Through the negotiations, we got better terms for pork and beef farmers, so it's natural that the Europeans would get other advantages in return. And just as we expect our trade partners to relent on things like agricultural subsidies, Canada can't necessarily hold on to all aspects of supply management forever. While it's not yet clear exactly what the deal means overall, it will involve work opportunities for lawyers as they wait for the government to bring in legislation implementing the deal. "The profession has two roles to play at that point," Cliff Sosnow of Fasken Martineau DuMoulin LLP tells Law Times. In addition to finding which advantages the deal contains for clients, lawyers will also be looking at the legislation to check that it properly reflects the agreement or point out any conflicts. For Richard Dearden of Gowling Lafleur Henderson LLP, the deal is significant in helping Canada diversify its economy. "We really needed to wean ourselves from the exports to the United States," he says. Ultimately, Canadians need more details before concluding whether the free-trade deal really is in their interests. But regardless, it's clear the federal government has worked hard to negotiate a deal that has a lot to offer. Senate scandals notwithstanding, it has at least done a good job on this aspect of the trade file. — Glenn Kauth Real access to justice means reducing lawyers' roles T wo months ago, the Canadian Bar Association's access to justice committee released a summary of a report that frankly discusses the "abysmal state of access to justice in Canada" and the "pain caused by inadequate access and the huge discrepancies between the promise of justice and the lived reality of barriers and impediments." While "inaccessible justice costs us all," the harshest consequences fall on the poor, the report notes. It concludes that the "civil justice system is badly broken." None of this is news. We see it in the huge numbers of self-represented litigants in every court. We've heard similar refrains for the past 20 years with senior lawyers and judges lamenting the sad state of access to justice every year. In 2008, Chief Justice Warren Winkler told us "we are now dealing with a civil justice system that fails to be accessible to many, and upon which pressures continue to mount. The number of people who cannot afford a lawyer, and who are forced to represent themselves in important legal proceedings has ballooned in the last 10 years. Chief among the reasons for this development is the cost of litigation. Even people of ordinary means can no longer afford to pay a lawyer to see a Law Times providers with the potential for case through to the end." disputes between insurers and So I have to agree with the Social their customers that could reCBA report that "tinkering is inJustice sult in more legal disputes? sufficient." It's time for big, bold The real problem lies in the thinking. But what does the lack of competent legal serCBA report contemplate? The vices at a reasonable cost. The proposals to build "a bridge to chief problem lies in the affordequal justice" cover the integraability of legal services. But the tion of law as a life-skills course CBA proposals seem to have in schools; the creation of legal little to do with lowering the capabilities training modules price of legal services. to deal with life transitions; leAlan Shanoff The keys to better access to gal health checklists to "create awareness of common legal problems"; us- justice lie in reducing the role of lawyers ing technology to improve access to justice and at the same time decreasing their fees. and reinvent the delivery of legal services; Such a move would require sacrifices by and reforming the courts to provide "active lawyers and that's something the CBA recase management, judicial dispute resolu- port doesn't seem to contemplate. If we want to cut fees, we should be distion, specialization, court simplification, cussing how to reduce the monopoly enand active adjudication models." Other proposals relate to reforms to joyed by lawyers. This is a line of thinking the provision of legal services and legal ex- broached in 2010 by then-B.C. chief justice pense insurance; more funding for public- Lance Finch. To reduce the effects of the ly funded legal aid; and integrating access monopoly enjoyed by lawyers and drive to justice issues into law school education. down costs, he suggested increasing the Regrettably, there's nothing big or bold supply of practitioners by enrolling more in these ideas. They may result in a better students in law schools, decreasing articlass of self-represented litigants, but is that cling periods, and qualifying more people what we want? And do we really want to to practise. In a similar vein, we should encourage legal expense insurance, which be considering the expansion of the role will add a layer of overhead and profit for of non-lawyers, including paralegals, into Thomson Reuters Canada Ltd. One Corporate Plaza, 2075 Kennedy Rd., Toronto, ON • M1T 3V4 • Tel: 416-298-5141 • Fax: 416-649-7870 www.lawtimesnews.com • clb.lteditor@thomsonreuters.com • @lawtimes Director/Group Publisher . . . . . . . . . . . . Karen Lorimer Editor in Chief. . . . . . . . . . . . . . . . . . . . . . Gail J. Cohen Editor. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Glenn Kauth Staff Writer . . . . . . . . . . . . . . . . . . . . . . . .Yamri Taddese Staff Writer . . . . . . . . . . . . . . . . . . . . . . Charlotte Santry Copy Editor . . . . . . . . . . . . . . . . . . . . . . Mallory Hendry CaseLaw Editor . . . . . . . . . . . . . . . . . Adela Rodriguez Art Director . . . . . . . . . . . . . . . . . . . . . . Alicia Adamson Production Co-ordinator . . . . . . . . . . . . . Catherine Giles Electronic Production Specialist . . . . . . . Derek Welford Advertising Sales . . . . . . . . . . . . . . . Kimberlee Pascoe Advertising Sales . . . . . . . . . . . . . . . . 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Publications Mail Agreement Number 40762529 • ISSN 0847-5083 Law Times is published 40 times a year by Thomson Reuters Canada Ltd., clb.lteditor@thomsonreuters.com CIRCULATIONS & SUBSCRIPTIONS $179.00 + HST per year in Canada for print and online (HST Reg. #R121351134), $145 + HST per year for online only. Single copies are $4.50. Circulation inquiries, postal returns and address changes should include a copy of the mailing www.lawtimesnews.com areas they currently can't practise in. We need to look at the adversarial system to determine which disputes don't necessarily require lawyers. For example, is it really necessary to have lawyers represent clients in most employment cases? Could an enhanced labour relations board not resolve many employment law disputes without the input of lawyers? These are the sorts of tough questions we need to ask. We need to examine each area of the law to determine options for reform with the goal of providing better access to justice and reducing the role of lawyers. For example, why do so many accident victims require a lawyer to assist with the collection of no-fault accident benefits? How can we modify the law so that insurance companies will have to provide contractually required benefits without forcing accident victims to retain a lawyer? In any efforts to ameliorate the problem, we must remember that the legal system should benefit society and not just lawyers, judges, and big business. LT Alan Shanoff was counsel to Sun Media Corp. for 16 years. He currently is a freelance writer for Sun Media and teaches media law at Humber College. His e-mail address is ashanoff@gmail.com. label(s) and should be sent to Law Times One Corporate Plaza, 2075 Kennedy Rd. Toronto ON, M1T 3V4. Return postage guaranteed. 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