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

Vulnerable Groups and Problem Responses

Chapter VI: Action and Inaction: Responses to Justiciable Problems

Within the justiciable problems paradigm, resorting to the formal justice system in order to resolve legal problems is not a requirement for their being considered serious, and being a need for some form of assistance. A basic assumption underlying this approach is that the legal option may not be the best one to resolve civil justice problems. Depending on their level of self-efficacy and the nature of the problem with which they are faced, some people might require only information or advice to enable effective self-help. Although some people may not require the courts or other formal mechanisms to resolve their legal problems, others who would benefit from legal assistance and court decisions may not receive the help they need because of barriers that prevent them from accessing the justice system. This chapter examines how people respond to legal problems.

Most people deal with their justiciable problems on their own without any form of assistance. In this sample, the unassisted self-helpers comprise slightly less than half of all respondents. Just over a third seek some form of assistance. Among those people about twice as many seek non-legal assistance[180] as those who seek the help of a lawyer. About one fifth of the respondents said that they made no attempt to resolve their problems, even though these problem had definite legal content and were identified the them as being serious and difficult to resolve. Figure 9, presents the basic responses to justiciable problems. A minority of respondents sought assistance with their problems.

Figure 9: Responses to Justiciable Problems

Figure 9: Responses to Justiciable Problems

Took No Action for a Reason

Most of the people who took no action, 16.5 per cent failed to act for a reason. These respondents clearly contemplated taking some action. However, barriers of one type or another prevented them from doing so. Reasons for not taking action are shown in Table 39. The reasons for not taking action are varied. Several reasons suggest that respondents lack sufficient information to make decisions about appropriate courses of action.

Table 39: Reasons for Not Taking Action
Reasons for Not Taking Action Number Percent
Thought nothing could be done 317 33.6%
Was uncertain of my rights 99 10.5%
Didn't know what to do 22 2.3%
Thought it would take too much time 94 10.0%
Though it would damage relationships with the other side 83 8.8%
Thought it would cost too much 60 6.4%
Thought the other side was right 47 5.0%
Was too afraid to take action 25 2.7%
Thought it would be too stressful 49 5.2%
Other reasons 146 15.5%
Total 942 100.0%

Taken together, thinking that nothing could be done, being uncertain about one's rights and not knowing what to do comprise almost half of all responses, 46.4 per cent. Not knowing one's rights makes up just over ten per cent of all reasons for not taking action. Other responses suggest that many people require support to overcome fear or anxiety that may prevent action. Being afraid to take action and thinking that the necessary action would be too stressful combine to make up 7.9 per cent of all responses. Being inhibited by perceived cost represents 6.4 per cent of reasons for not acting to resolve justiciable problems. Not wanting to damage relationships with the other side, represents 8.8 per cent of responses to problems suggesting that respondents might benefit from a consideration of alternatives to resolving the problem that would be appropriate to the situation. Thinking that resolving the other party might be right, amounting to 5.0 per cent of all reasons is a judgement on the part of the respondent that may not have been made with the benefit of reliable information. Only one reason, thinking that resolving the problem might require too much time, 10.0 per cent, has a tendency to trivialize the problem from the point of view of the respondent.

Problems related to discrimination were the type that respondents wanted to act upon but most frequently did not for one of the reasons given above in Table 39. This occurred in 39.6 per cent of the 91 problems of this type. Problems related to police action were not acted upon for various reasons in 36.7 per cent of the 103 problems for which data are available. Respondents were less likely to fail to act on other types of justiciable problems although they had reasons that reflect barriers to accessibility; employment, 19.3 per cent (n = 1421); consumer, 17.7 per cent (n = 1480); hospital treatment and release, 18.6 per cent (n = 86); Immigration, 17.2 per cent (n = 35); discrimination, 16.7 per cent (n = 91); housing, 15.8 per cent (n = 95); wills and powers of attorney, 15.5 per cent (n = 330); personal injury and threat of legal action, both13.7 per cent (n = 161 and 330, respectively); debt, 12.3 per cent (n = 1444); family law: relationship breakdown, 9.4 per cent (n = 244); other family law problems, 8.8 per cent (n = 68) and social assistance, 8.2 per cent (n = 49).[181]

Most of the responses suggest the potential value of initial legal information and advice to assist the person in understanding the nature of the problem and the courses of action that may be open. This is consistent with the findings of the Hughes Commission in Scotland that characterized knowledge of the law and of the options available for dealing with a problem as the first step in achieving access to justice.[182] In that report Lord Hughes writes that legal need consists of two parts: first, information that will enable people to choose a way to resolve a problem and 2) if a legal path is chosen, access to the means to pursue a legal solution. "[I]n assessing the need for legal services we must therefore think in terms of two stages - firstly, enabling the client to identify and, if he judges it appropriate, to choose a legal solution and, secondly, enabling the client to choose a legal solution."[183] Again, Lord Hughes writes; "when we speak of 'unmet need' we are concerned about instances where a citizen is unaware that he has a legal right, or where he would prefer to assert or defend that right but fails to do so for want of legal services of adequate Quality or supply."[184] The reference in the Hughes report relating to knowledge of rights can be extended to related barriers to taking action summarized above in Table 39. An approach that emphasizes the requirement for knowledge as a basis for making choices about choosing the most appropriate approach to dealing with a justiciable problem also addresses the comment by Philip Lewis that justiciable problems may have solutions other than purely or solely legal responses.

Took No Action, It Wasn't Important Enough

In a small percentage of cases, 5.7 per cent of all problems, respondents indicated that no action was taken because they felt that the problem was not important enough. Following Genn in Paths to Justice, it has been common practise to eliminate these from the sample on the basis that they are trivial problems that have slipped through the threshold language of the questionnaire, problems that are serious and difficult to resolve.[185] However, there is a theoretical possibility that respondents who make the judgement that a problem is not important enough to attempt to resolve are incorrect. Problems may have unforeseen consequences or may trigger other problems that become serious as they develop into inter-related problem clusters. Genn's initial concern in applying the triviality screen was to avoid being swamped by trivial problems. It has generally not been the case that so-called trivial problems are numerous.[186] The threshold language commonly used in research of this type appears to control the triviality problem. Thus, the respondents who failed to respond to their problem because they thought it was not serious enough will be included in the analysis of outcomes and demographic differences.

Problems stemming from police action were the type for which respondents most frequently considered not important enough to act upon. This occurred in 11.7 per cent of the 103 problems of this type. Problems related to discrimination were not acted upon because respondents felt the problem was not sufficiently important in 9.9 per cent of the 91 problems for which data are available. Problems in other categories were much less likely to be considered too trivial to act upon them; employment, 7.4 per cent (n = 1421); consumer, 6.8 per cent (n =)

1480); hospital treatment and release, 5.8 per cent (n =86); Immigration, 5.7 per cent (n = 35); debt, 4.3 per cent (n = 1444); social assistance, 4.1 per cent (n = 49); family law: relationship breakdown, 4.1 per cent (n = 244); threat of legal action, 3.9 per cent (n = 51); wills and powers of attorney, 3.3 per cent (n = 330) and housing, 3.2 per cent (n = 95). No respondents indicated that other family problems or problems related to disability pensions were not important enough to attempt a resolution.[187]

I Took Care of It Myself

The largest category is the respondents who took care of the problem themselves. In almost half of all problems, 44.0 per cent, respondents attempted to resolve the problem on their own without any form of assistance.

Self-helpers were most frequent for debt problems, 59.4 per cent (n = 1444); consumer, 58.7 per cent (n = 1480) and problems related to social assistance. 55.1 per cent (n = 49). Self-helpers made up less than half of respondents for problems related to hospital release and treatment, 48.8 per cent (n= =86); threat of legal action, 37.3 per cent (n = 51); immigration, 34.3 per cent (n = 35); disability pensions, 33.3 pre cent (n = 46); housing, 30.5 per cent (n = 95); employment, 30.1 per cent (n = 1421); personal injury, 26.7 per cent (n = 161); discrimination, 25.3 (n = 91); wills and powers of attorney, 24.2 per cent (330) and police action, 21.4 per cent (n = 103). Self-helpers were least frequent for family law problems. Only 20.1 per cent or respondents with other family law problems (n = 68) and 20.1 per cent of respondents with relationship breakdown problems (n = 244) attempted to resolve the problem on their own without outside assistance.[188]

Would Assistance Have Been Beneficial? Respondents who indicated they had attempted to resolve the problem on their own were asked if, in retrospect, they thought the outcome of their problem would have been better if they had some form of assistance. About 42 per cent (42.1%) of the self-help group indicated that assistance would have improved the outcome for them.[189] This was most pronounced for respondents with immigration problems. Respondents with immigration or refugee problems who attempted to help themselves indicated that assistance would have improved the outcome for 72.7 per cent of all problems (n = 11). This was closely followed by respondents with problems in the other family law category. Self-help respondents indicated that some assistance would have been improved the outcome in 71.4 per cent of all other family law problems (n = 49). In descending order, respondents felt that, in retrospect, assistance would have resulted in a better outcome in 62.5 per cent of problems involving disability benefits (n = 16); 55.0 per cent of personal injury problems (n = 40); 54.5 per cent of problems stemming form police action (n = 22); 52.5 per cent of employment problems (n = 421); 48.1 per cent of problems related to wills and powers of attorney (n = 77); 47.8 per cent of discrimination problems (n = 23); 46.7 per cent of problems related to hospital treatment and release (n = 41); 44.4 pre cent of social assistance problems (n = 27); 42.3 per cent of consumer problems (n = 866); 41.4 per cent of housing problems (n = 29); 38.8 per cent of relationship breakdown problems (n = 49) and 36.8 per cent of problems related to the threat of legal action (n = 19).[190]

Overall 67.6 per cent of respondents who said they believed in retrospect that some assistance would have improved the outcome of their justiciable problem felt that public legal information would have been beneficial, while 30.4 per cent felt that having someone explain the law and assistance in completing letters and documents would have brought about a better outcome. Only 1.2 per cent of respondents felt that an advocate to actively intervene on his or her behalf would have improved the outcome.[191]

Sought Some Form of Assistance. Overall, in just over one third of all problems, 33.8 per cent, respondents attempted to obtain some form of assistance to resolve their problem.

Non-Legal Assistance

In the majority of cases respondents who sought some form of assistance did so from a variety of non-legal sources. Table 40 outlines the types of assistance respondents sought. Trade unions rank as the single most frequently mentioned source of assistance. In all, 22.1 per cent of respondents said they sought assistance from non-legal sources. Only 9.7 per cent (n = 103) of respondents having a problem related to police action resorted to non-legal assistance. Understandably, respondents experiencing problems involving the threat of legal action were least likely to use a non-legal source of assistance, 9.8 per cent (n = 51). On the other hand, respondents experiencing a personal injury problem were most likely to consult a non-legal source of assistance, 42.2 per cent of all people experiencing a problem of that type (n = 161). Employment, 35.8 per cent (n = 1421), housing, 33.7per cent (n = 95) and problems related to disability benefits, 33.3 per cent (n = 48) are other areas in which respondents were relatively highly likely to resort to non-legal sources of assistance. It is particularly interesting that 35.8 pre cent (n = 330) of respondents who experienced a problem related to wills and powers of attorney said they used some form of non-legal assistance. This is a problem area that would seem to be pre-eminently within the legal domain. The use of non-legal sources of assistance were moderately low compared with other areas among respondents reporting debt problems, 15.7 per cent (n = 1444) and consumer problems, 11.4 per cent (n = 1480). In other problem areas, the percentage of respondents reporting the use of non-legal forms of assistance were; immigration, 28.6 per cent (n = 35); social assistance, 24.5 per cent (n = 49); other family law problems, 23.5 per cent (n = 68); hospital treatment and release, 23.3 per cent (86) and discrimination, 22.0 per cent (n = 91).[192]

Trade unions are the largest single source of non-legal assistance used by respondents, making up 20 per cent of all sources. The next largest source of assistance was government offices, comprising 18.5 per cent of all problems. Friends and relatives ranked third in term of frequency as a source of assistance with problems. Respondents consulted friends and relatives for assistance in 13.7 per cent of all problems. The police were named as a source of assistance in 4.0 per cent of all problems, followed by support groups in 1.9 per cent of all cases. It is perhaps a little surprising that the internet was used so infrequently as a source of assistance. Respondents indicated the internet as a source of assistance in only 0.5 per cent of all problems. Libraries and hard copy sources of information were cited by respondents for only 0.2 per cent of all problems. The small percentages in the latter two categories strongly suggest that people decidedly prefer sources of assistance that offer some form of in-person contact. Finally, there is a very large "other" category. Although, respondents were prompted to name any other sources of assistance the responses did not yield many additional specific sources of information. The Better Business Bureau and banks were the two most frequent mentions when respondents were asked to specify the choice of the "other" category.

Table 40: Sources of Non-Legal Assistance
Information Source Number Per Cent
Unions 317 20.0%
Government Offices 241 18.3%
Friends and Relatives 216 13.7%
Other Organizations 83 5.3%
Police 63 4.0%
Support groups 30 1.9%
Internet 9 0.5%
Libraries/books 3 0.2%
Other sources 616 36.1%
Total 1578 100.0%

Sought Legal Assistance

Finally, respondents turned to legal assistance for 9.2 per cent of the justiciable problems they experienced. Among those who indicated they sought legal assistance, 79.8 per cent said they did so from a privately retained lawyer, and 9.6 per cent sought assistance form legal aid. The remaining 11.0 per cent said they were uncertain about the nature of the legal assistance they sought.

Comparing across problem types, respondents were most likely to receive legal assistance for both types of family law problems. Respondents with problems related to relationship breakdown reported using legal assistance for almost half of all reported problems; 48.8 per cent of relationship breakdown problems (n = 244) and other family law problems, 47.1 per cent (n = 68). Legal assistance was used least frequently in discrimination problems, 3.3 per cent of respondents with that type of problem (n = 91) and, similarly, relatively infrequently in resolving problems related to consumer issues, 5.3 per cent of all respondents with a consumer problem (n = 1480); employment, 7.5 per cent (n = 1421); social assistance, 8.2 percent (n = 49) and debt, 8.5 per cent (n = 1444). Legal help was used by 35.3 per cent of respondents who experienced threat of legal action (n = 51), just slightly less than the 37.3 per cent who attempted to deal with the problem without any outside help. Between about 14 and 20 per cent of respondents experiencing other problem types resorted to legal assistance to resolve the problem; immigration, 14.3 per cent (n = 35); personal injury, 15.5 per cent (n = 161); disability benefits, 16.7 per cent (n = 48); housing, 16.8 per cent (n = 95); police action, 20.4 per cent (n = 103) and wills and powers of attorney, 21.2 per cent (n = 330).

Legal Aid. Because of very small numbers it is not possible to say much about the assistance respondents received from legal aid. About 9.5 per cent of all people who received any legal assistance (11.7 per cent or 677 respondents[193]), about 9.5 per cent (n = 64) received legal aid. Most people who apply for legal aid, 72.3 per cent, are approved for service. Almost half of all problems for which people receive legal aid are in the family law areas, 44.5 per cent. Respondents received legal aid for about 15.6 per cent of debt problems, 8.9 per cent of employment problems. Legal aid was reportedly received for about 2 to 4 percent of other problem types. The results relating to legal aid were not statistically significant.

Vulnerable Groups and Problem Responses

Took No Action, It Wasn't Important Enough

Younger people aged 29 and under were twice as likely as people in older age groups to take no action because they thought the problem was not important enough.[194] Members of visible minorities were also slightly more likely than others to have taken no action because of a perceived lack of importance, with an odds ratio indicating that these respondents were 1.5 times more likely to take no action.[195] [196]

Took No Action for a Reason

Respondents who were foreign-born[197], unemployed[198], had less than a high school education[199] and who had an income of less than $25,000[200] were all more likely to have said they took no action to resolve their problem, but did so for one of the reasons noted above. However, the relationships were all very weak, with odds ratios of well below 2.0 (twice as likely), intuitively the level at which the relationship is strong enough to merit attention.

I Took Care of It Myself

People who were married or in a common law relationship[201] and who were between 30 and 34 years of age[202] were more likely to choose the self-help strategy. However, although statistically significant, the relationships were very weak.

Non-Legal Assistance

The disabled were slightly more likely than non-disabled respondents to choose some form of non-legal assistance to address their justiciable problems.[203] People between the ages of 45 to 64[204], working or self-employed[205] and with middle-level incomes of $45,000 to $64,000[206] were also slightly more likely than others to seek non-legal assistance.

Sought Legal Assistance

Similar to those who sought non-legal help, people aged 45 to 64[207] and the disabled[208] were also more likely to seek legal help for their problems. In addition, respondents on social assistance[209] were slightly more likely than others to seek legal help. This suggests the possibility that eligibility for legal aid by people on social assistance might explain this effect.