The Legal Problems of Everyday Life - The Nature, Extent and Consequences of Justiciable Problems Experienced by Canadians

Chapter I: Introduction

The problems of civil justice, of access to civil justice and of unmet need for service in civil justice are most commonly studied from the point of view of the justice system, mainly with regard to the courts. The large, and reportedly increasing, number of self-representing litigants crowding the courts is the issue that currently dominates both public and professional discourse. This is certainly an important problem, one that is as much a problem for the courts, mainly with respect to justice system efficiencies, as it is for the individuals who find themselves adrift without professional assistance in the complex and unfamiliar environment of the civil courts.

However, a wider perspective than one that begins with the courts is required to understand the full breadth of civil justice problems. It is widely accepted that many people with serious civil justice problems do not have access to the courts and thus do not appear as un-represented litigants. It is also part of the growing orthodoxy that many problems could be better resolved using alternative means, without engaging in expensive and lengthy court proceedings.

That larger unknown landscape of civil justice problems that exist apart from, or in some cases, prior to, their appearing as unrepresented litigants in the civil justice system is the subject of this research. Research carried out previously in Canada and in other countries suggests that the incidence of such problems might be quite high. It should not be surprising to find that civil justice problems occur frequently in societies with extensive regimes of civil law. Civil laws regulate a great many aspects of life in western legal-bureaucratic societies such as family relations, the purchase of goods and contracting debt, conditions pertaining to rental housing, and other areas. Civil law defines rights and obligations in many areas of life; it is designed to protect people against the unscrupulous actions of others, and it allows people to pursue a just claim. However, these defining features of civil law do not take effect only at the court house door; they operate in all the corners and crevices of daily life where activities regulated by civil laws take place. Thus, because civil laws regulate so many aspects of everyday life, it is important to determine the full extent of civil law problems, extending from those that may be resolved by the parties themselves, perhaps with limited assistance, to those that must be resolved by the courts. This research addresses the broader landscape of civil justice problems experienced by the public regardless of whether the formal justice system was used to reach a resolution or not.

The purpose of this project is to inform policy makers about the incidence of civil justice problems and the extent of unmet need for assistance that justiciable problems[1] in civil matters might represent. The study assumes a broad view of civil justice problems and unmet need. The broad view looks at the problem of civil justice and access to justice in terms of the prevalence[2] of civil justice problems in the population. This involves identifying, by means of a sample survey, civil justice problems people have experienced that meet some reasonable threshold of seriousness. The broad view contrasts with the narrow view of civil justice and access to the justice system. The narrow view takes as a starting point the problems that come to the attention of the courts or other formal dispute resolution mechanisms.

The narrow view of access to the justice system is inadequate in at least two ways. First, people may face a variety of barriers to the formal justice system that limit the problems that are taken to the courts. Barriers can include low literacy, learning disabilities, limited English or French language skills, lack of knowledge about where to find help or, indeed, not knowing whether the problem has a legal solution or not. Second, the courts and tribunals may not always be the most appropriate or effective ways to deal with justiciable problems. Even though problems may not be brought to the justice system for resolution, they are, nonetheless, legal problems. Logically, they should not be ignored, assumed not to be serious, or not deserving of assistance because they are not brought to the formal justice system. It is in this sense that Laura Nader wrote about "little injustices", the problems of the poor that, although serious and consequential to the people experiencing them, were largely ignored by the civil justice system.[3]

Taking the wide-angle view of civil justice problems emphasizes that justiciable problems are very frequently aspects of, and one in the same with, the problems of everyday life. In a way, the ubiquitous quality of civil justice problems has a tendency to obscure their importance, submerged in the normal activities of people's daily lives. A number of surveys of civil justice problems conducted in various countries over the past ten or fifteen years have shown that large proportions of national or regional populations experience civil justice problems that may be characterized as serious and difficult to resolve.[4] Percentages of respondents experiencing one or more civil justice problems within some specified time frame varies from about one quarter to about sixty percent.[5]

Typical of research that reflects the broad view of civil justice problems rather than the narrow view from the formal justice system, this research is an attempt to move away from demand-led definitions of need to measured need. Need is frequently treated as synonymous with expressed demand. However, demand is only one type of unmet need that appears in the form of people queuing up at a service agency requesting assistance.[6]Unmet need viewed as demand is a limited view for much the same reasons that the narrow view of civil justice problems is limited. People with problems deserving of assistance may not seek assistance, or if they do, may not find effective assistance. Consequently, demand is not a valid and reliable measure of need.

The rationing and filtering mechanisms that determine what problems are taken to the law have the advantage of automatically identifying a part of the universe of need, even though the need identified is only the small "demand" portion of all needs. Attempting to identify unmet need by proceeding from the broad view of civil justice problems carries with it the disadvantage that need is more difficult to discern. In fact, it is rare for researchers to attempt to define need precisely or to quantify the amount of unmet need; however attractive this might be to policy makers who wish to determine the magnitude of the problem for government in committing funds to address unmet need. Neither the major American research nor the British studies attempt to precisely define unmet need. Dignan points out that the Comprehensive Legal Needs Study in the U.S. treats the existence of any problem with legal content as unmet need.[7] The "paths to justice" studies[8] and the subsequent "causes of action" research[9] carried out by the Legal Services Research Centre at the Legal Services Commission make extensive and well-reasoned qualitative judgements about the nature and extent of unmet need without attempting to precisely quantify it.

The complexity of the concept of need in civil justice matters is evident by contrasting it with need in criminal justice. Unlike being charged with a criminal offence, civil justice problems may be dealt with in a variety of ways. One can attempt to solve the problem on his or her own, one can seek advice and assistance from a variety of sources other than people with legal training and having varying levels of competence, or one can ignore the problem at least for a while. The problems of everyday life with potentially significant legal aspects can have a long life history, becoming more serious with the passage of time. Thus, the need may be for assistance of a preventative nature before the problem becomes more serious requiring crisis intervention. This variety of circumstances is what makes defining unmet need precisely so difficult. It is not as simple as in criminal justice matters where one can be said to have a legal problem if he or she is arrested and must appear in court to answer the charge.

Notwithstanding the inherent problems of definition posed by this type of research, studies of this type that attempt to depart from demand-led approaches have a major advantage. Based on a survey that is statistically representative of national or regional populations, this approach is a way to give voice to the public that is at risk of experiencing civil justice problems. It enables a statistically representative sample of the public to point out the civil justice problems they have experienced, tell enough about how they dealt with those problems and, provide insight of their experience in seeking assistance to present a basis for making judgements about unmet need. There are inherent limitations in survey research that reduce the quantity of detail that can be gathered and amount of contextual and other qualitative information that give depth of understanding to the problems identified. Nonetheless, the survey approach is the best instrument for gauging the overall extent of civil justice problems and of unmet need for a large population.

Chapter II discusses the methodology and how it reflects the assumptions underlying the broad approach to civil justice needs that forms the paradigm of this research. Chapter III reports the basic data on the incidence of civil justice problems and considers the seriousness threshold that is fundamental to this type of research. Chapter IV examines the occurrence of multiple problems and the extent to which multiple problems reflect unmet need. Chapter V identifies the varied responses to civil justice problems and Chapter VI examines the outcomes of justiciable problems. The non-legal consequences of justiciable problems; in particular, the physical and mental health impacts are the subject of Chapter VII. Chapter VIII looks at the connection between the experience of civil justice problems and attitudes toward the law and the justice system.