Development of An Access to Justice Index for Federal Administrative Bodies

1.0 Introduction

The Access to Justice Index for Federal Administrative Bodies (the “Index”) began in 2014 as a pilot project to develop a tool, as a way to measure access to justice in the context of administrative law and specifically, for federal administrative bodies. This report describes the concepts underlying the Index and how it was developed.  

1.1 Defining Access to Justice

Access to justice has been called “the central justice issue in Canada today.”Footnote 6 It has traditionally been seen as access to lawyers (e.g. legal aid) and court-based processes.Footnote 7 However, in recent years, as evidenced by the work of many, access to justice has taken on a much broader definition.Footnote 8 Law societies, the Canadian Bar Association (CBA), the Supreme Court of Canada, through the National Action Committee (NAC), the Canadian Forum on Civil Justice,Footnote 9 as well as academics, students, practising lawyers and other professionals involved in our justice systems are all studying and making recommendations on how to improve access to justice in our country.

In doing so, definitions of access to justice are in plentiful supply. Justice Cromwell of the Supreme Court of Canada, for example, defines access to justice as knowledge, resources and services to use the justice system in family, criminal and civil contexts.Footnote 10 Law Professor Trevor Farrow, Osgoode Hall Law School, notes that, “Good laws, rules, judges, educators, lawyers and courtrooms are all important. However, these are not ends in themselves, but rather steps along the path to justice and access to it.”Footnote 11

To conceptualize this project, it was important to begin with a common understanding of what is access to justice. Former McGill University Law Professor Roderick Macdonald, considered one of the seminal legal experts in the area of access to justice, summarized a set of elements that ultimately define an accessible justice system:

In the same foundational article from 2005, Macdonald defined five waves – or categories – of access to justice.Footnote 13 Macdonald argued that in order to achieve access to justice, it would be important to move from strategies focused on resolving singular issues towards a “comprehensive access to justice strategy … ”.Footnote 14

At the Department of Justice Canada, access to justice is considered a fundamental value of the Canadian justice system. It is a principle that flows out of respect for the “rule of law” where the whole of Government has a role to play. In keeping with this, the Department of Justice defines access to justice as:

Enabling Canadians to obtain the information and assistance they need to help prevent legal issues from arising and help them to resolve such issues efficiently, affordably, and fairly, either through informal resolution mechanisms, where possible, or the formal justice system, when necessary.Footnote 15

This broader understanding of access to justice underscores that:

  1. The justice system extends beyond courts and tribunals to include an extensive informal system (e.g., information sources, self-help strategies, and other dispute resolution options). Increasing access to justice through the use of formal or informal systems is key to achieving fairFootnote 16 and just outcomesFootnote 17 thereby increasing cost-savings for the government and the whole of the justice system through better resource distribution/allocation;
  2. There is a need to develop Canadians’ understanding and literacy of, and capability to navigate, the legal system, through a range of measures (e.g., providing all Canadians with basic legal training) necessary to enable individuals to better manage their justiciable problems;Footnote 18
  3. Access to justice issues are often intensified by other components and conditions, including socio-economic, health factors, and/or policy decisions taken in other areas of responsibility.Footnote 19

1.2 The Index project

The Department of Justice, Research and Statistics Division, initiated the Access to Justice Index for Federal Administrative Bodies project with the goal of developing and piloting a quantitative measurement of access to justice in the context of Canadian administrative law. This measurement includes indicators, data and results and is intended to highlight the power of data-driven policy and programming. The Index can be an important resource for administrative bodies wherein results describe how well they are doing to ensure access to justice for their users/clients/parties.

The project is an adaptation of the Access to Civil Justice Index, launched in 2014 by the US National Center for Access to Justice,Footnote 20 which measures access to justice in the civil context in all 50 states. This Canadian pilot project aims to address a knowledge gap around access to justice issues in the federal administrative context. It aims to do so in a manner that respects the mandates and the independence of the participating administrative bodies, as well as the strategic outcomes of the Department of Justice Canada (DOJ) - a fair, relevant and accessible justice system and supporting the federal government with high-quality legal services - while contributing to the dialogue on access to justice.Footnote 21

The Index itself was developed by a working group comprised of officials from the DOJ, four federal administrative bodies, and two legal academics. Two federal administrative bodies – the Canadian Human Rights Commission (CHRC) and the Competition Tribunal - participated in the testing of the Index, known as the “pilot project.” It is important to note that the CHRC and the Competition Tribunal each has a different composition, mandate, and different processes. Even with these differences, the Index is applicable.

To summarize the objectives, this project intends to:

1.3 Administrative Bodies

“The rule of law is no less significant in an administrative hearing room or decision-making process than a courtroom.”Footnote 23

Administrative bodies are specialized, arm’s length, governmental agencies established under federal or provincial legislation to implement legislative policy on specific issues in a non-partisan manner. Appointment to such agencies is usually by order-in-council where candidates are chosen for their expertise and experience in the particular sector being regulated by the legislation. Sossin suggests that the rationale for these bodies would include the following: Footnote 24

Many administrative bodies function through a hearing process to determine conflicting rights and obligations or to deliberate entitlements between competing parties. The formal hearing is an adjudicative process that functions similarly to the courts; procedure is less formal than before the courts and the rules of evidence do not apply, although decisions must be based on strong evidence.

The decisions of administrative bodies are final and not subject to appeal, although a right of appeal may be provided in the enabling statute to the courts, or to another administrative tribunal or Cabinet. Even where no right of appeal is provided, the Canadian Constitution guarantees to superior courts the jurisdiction to review the function of any administrative tribunal – judicial review - so as to ensure that it acts within the jurisdiction conferred on it by Parliament.

Administrative bodies, regardless of whether they are federal, provincial/territorial or municipal, are quite different from each other in terms of their mandates, structures and powers. These differences are and will continue to be important in the development and application of the Index. The goal has been to make the chosen questions/indicators for this access to justice index universal to the extent that it applies to the different administrative bodies participating in the pilot project.

As noted in a posting by Ian Mackenzie on Slaw in early 2014, most administrative bodies have “shared a bias toward adversarial processes.”Footnote 25 The author notes that when parties are not represented (whether or not by choice), and do not understand the complexities and legal parameters of the case at hand, the underlying assumptions of adjudicative processes no longer apply. Adjudicators have not been particularly active in the past. As with the judiciary, however, greater demands are being placed on adjudicators to become active because of:

Sossin suggests that active adjudication should be viewed, “as a mid-point between adversarial and inquisitorial models of legal process, and one focused on the policy context rather than the judicial model of the neutral arbiter or inquest model of the judge-led inquiry.”Footnote 27 He further notes that:

The link between Active Adjudication and access to justice is clear. If tribunal members are more active to ensure a fair process, the inequalities in representation, and more broadly in power and resources between parties, may be mitigated and access enhanced.Footnote 28

1.4 Self-represented Litigants

Self-representation has become one of the most important issues in access to justice in the last decade, particularly in family and civil law given the paucity of publicly funded legal services, especially for those who are economically disadvantaged. Administrative bodies, for the most part, have been designed to be more informal than the traditional adversarial court system and yet, in many cases, especially where one party has legal representation and the other does not, there can be power imbalances throughout the processes. 

Each administrative body has its own set of rules. Where procedures and rules are simple and self-representation is the norm, self-representation may help increase access to justice. In this context, however, the supports (information, guidance, etc.) provided by the administrative body become even more important than in a more complex setting. Self-representation is one of the biggest challenges facing judges and tribunal members. In recent years, judicial education groups, such as the National Judicial Institute,Footnote 29 have taken this into consideration in planning workshops. This is a key issue for the Council of Canadian Administrative Tribunals (CCAT) and will continue to be addressed by their various committees and in annual conferences.Footnote 30

The CCAT undertook a survey in 2014 on self-represented litigants, asking 250 of its members to identify numbers of self-represented litigants appearing at hearings or other processes. As well, the survey asked what tools, policies or training the member bodies had to address the challenges self-represented litigants face. The survey now exists as a checklist that is available for members to use. Results from the 124 administrative bodies that responded were aggregated and presented by jurisdiction.Footnote 31 The development stage of the Index project coincided with the CCAT’s survey and the author met with CCAT to discuss its work and seek permission to use questions from its self-represented litigants survey/check list.

University of Ottawa Law Professor Michelle Flaherty,Footnote 32 in her paper on self-represented litigants, examines adjudication trends and usefully outlines some of the relevant decisions on the scope of the duty of an adjudicator to assist a self-represented litigant. She concludes that the courts have generally held that adjudicators are required to assist the self-represented with procedural matters, but there is no positive obligation to assist self-represented parties with substantive legal matters.Footnote 33

1.5 The Cost and Quality of Access to Justice Research

An important principle in the field of access to justice is that justice and access to justice should be viewed from the point of view of the individual experiencing the legal problem. This principle finds expression in concepts such as therapeutic justice, whole-client or holistic legal services and restorative justice.

Researchers at the University of Tilburg, Institute for Interdisciplinary Studies of Civil Law and Conflict Resolution (TISCO), have developed this idea of viewing access to justice from the point of view of the person experiencing the problem.Footnote 34 Based on a thorough literature review, the researchers have developed a comprehensive measurement tool along three major dimensions: the cost, the quality of the process and the quality of the outcome. Within each component there is a number of specific indicators, each one measured on a five-point scale. The consistent measurement of indicators makes possible consistent scoring and the construction of scales and indexes to represent the cost and quality measures.

This approach for measuring the cost and quality of access to justice was developed for civil justice problems. However, the concept should be sufficiently flexible to be applied to criminal justice or other areas. It is possible to modify the model, keeping the main components while significantly changing some of the indicators. For example, Tilburg researchers have modified the model in order to apply it to victims of crime.Footnote 35 Department of Justice Canada researchers applied a modified model to accused individuals those going through the Ottawa Drug Court.Footnote 36