National Post

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Wednesday, October 27, 1999

Judges make justice unaffordable
Karen Selick
National Post

It was more than a little annoying to read about Supreme Court Justice Ian Binnie apparently castigating lawyers and the system for excessively high legal fees.

Guess who is the highest-paid occupational group in the country, according to Statistics Canada? Judges. Their average income in 1995 was $126,246 -- more than 50% higher than the average lawyer's income of $81,617. Federally appointed judges, which would include those on the Supreme Court, earn a minimum salary of $175,800 -- more than double the average lawyer's income.

Do judges ever stop to think about how their own actions contribute to making justice unaffordable for the average person? The Supreme Court had an opportunity this past April, in the case of Bracklow v. Bracklow, to issue a decisive statement on the question of spousal support for disabled spouses. They could have shaved thousands of dollars -- perhaps, cumulatively, millions -- off the legal bills of similarly situated couples.

Instead, they wrote a treatise on legal theory and ducked out on the crucial issues of how much support should be paid and for how long, sending those questions back to a lower court to decide. Estranged spouses all across the country, waiting for guidance that would have helped them to settle their cases out of court, were forced to carry on with their lawsuits, adrift in a sea of uncertainty.

I recall one spousal support case I handled a few years ago in which the judge made a patently erroneous decision, completely out of line with previous case law. My client instructed me to appeal, so off we went to the Divisional Court in Ottawa where, as expected, the decision was reversed. Meanwhile, several thousands of dollars of clients' money had been chewed up by both sides. What happened to the judge who had caused this waste? Why, nothing, of course. After all, making judges responsible for the mischief their blunders cause would compromise their judicial independence, you know.

Ontario has recently dealt another financial blow to those embroiled in matrimonial disputes. Its new family law rules, scheduled to apply province-wide next month, prohibit litigants from being represented in court by anyone who is not a lawyer, unless the court grants special permission in advance. This means that we lawyers can no longer send our articling students --whose services we bill out at rates considerably lower than our own -- to court for simple matters, unless we attend ourselves in advance to get permission. Tack on some more to the bill.

In September, lawyers in Eastern Ontario were instructed that we can no longer appear in the Superior Court of Ontario, even for a five-minute motion, without putting on our black robes and tab-collared white shirts. Clients will now be paying for an extra ten minutes of service every time their lawyers are forced to don their penguin suits. Justice, of course, will be vastly improved.

How have lawyers responded to attacks like those of Justice Binnie? The Canadian Bar Association could come up with nothing better than a recommendation that lawyers should donate 3% of their incomes annually, or 50 hours of time, to pro bono (free) legal work. From time to time, trial balloons are sent up about making such donations mandatory.

What effect would this have? Some lawyers would undoubtedly respond by diverting money or time away from the charities and volunteer work they currently support. Now that's a worthy goal -- taking money from the blind, or people with Alzheimer's disease, or cancer, and giving it to people who want to litigate.

Another effect would be to ratchet up the number of interest groups clamouring to receive all of these new pro bono services. Court cases -- especially those that reach the appellate level -- are increasingly festooned with intervenors seeking to influence public policy through the courts when they haven't been able to get their way at the ballot box. The Vriend case on gay rights, for instance, had 17 intervenors. These multi-ring circuses may already be one of the reasons why judges' decisions are so much longer than they used to be, and lawyers have to spend more time reading the law, which means we have to charge our clients more ... you get the picture.

The one possibility that lawyers and judges conspire never to mention is that legal fees, like all other prices, might just be determined by supply and demand, and that the legal monopoly granted to lawyers might be the reason they have the power to charge so much.

Indeed, lawyers are forever vigilant to ensure that no upstart paralegal is permitted to handle an uncontested divorce or incorporate a small business without being prosecuted for practising law without a license. They're just protecting the public from shoddy workmanship, you know -- as if the paralegal who stood first in her class couldn't think rings around the lawyer who stood last in his.

I'm not one to push for making things mandatory, but if ever there were a strong case for mandatory education, it would be to make all lawyers and judges take a course in elementary economics.

Karen Selick is a lawyer and columnist for Canadian Lawyer magazine.

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