In February, we introduced the Canadian Forum on Civil Justice’s (CFCJ) “Cost of Justice” project, a research initiative designed to determine the legal, economic, and social costs and benefits of pursuing, or not pursuing, justice. In an attempt to determine these costs, the project has numerous studies underway, some of which focus on regional and provincial issues, while some are national in scope. The National Justiciable Problems survey is the latter. This survey is a response to an expressed need for up-to-date, concrete information on justice system costs in Canada.
The need for evidence-based research on the cost of justice was identified as early as 1996, in a report by the Ontario Civil Justice Review, office of the Attorney General. Part of this report addressed economic costs facing civil litigants. It is disheartening to realize many of the issues identified in this report are still present in the justice system today. Some of these issues were a lack of control of costs in the legal system, unnecessary delays and complexity, and the perception that lawyers have an incentive to waste time and effort due to the “billable hours” system.
The report also considered what is driving up the costs of justice, namely backlogs, lack of standards when it comes to fees, fees that don’t relate to providing a service, and bureaucracy. Looking forward, the report noted, “there is insufficient data available on these costs and little analysis.” Further research was recommended to determine if litigants are receiving the best value in the justice system and a reasonable and acceptable “cost” of civil justice.
The National Justiciable Problems survey also builds on past research by Cost of Justice Research Alliance Member Ab Currie, who conducted one of the first Canadian surveys on legal needs in 2005. The purpose of that study was to determine the incidence of law-related problems among low and moderate income Canadians and the social and demographic groups that are most vulnerable to problems.
What makes the Cost of Justice survey different? While previous surveys such as the one conducted by Currie sought to determine the kinds of legal problems people encounter, the Cost of Justice survey is unique in that it is particularly interested in providing up-to-date evidence of the costs of these legal problems for over 3500 Canadians. Rising costs are one of the most pressing concerns facing people dealing with a legal issue. The survey will measure these social, economic, and health costs.
Measuring the costs of justice won’t be easy. Think for a moment of the types of costs people face in their encounters with the justice system. On one hand, there are costs to pursuing a legal resolution, which are borne by individual litigants, the government, legal aid, private lawyers, and corporations. Some of these costs are well-known expenses, such as hiring a lawyer or court filing fees. These costs vary depending on whether a traditional litigation path or an alternative process is pursued. The survey seeks to discover how the cost of pursuing justice affects justice system actors in varying proportions and the cost differences between different dispute resolution methods. In this category there are also less obvious costs – for example, missed days at work, gas money (which can be a significant cost for those who live in rural or remote areas and have to travel long distances to the courthouse), or payment for childcare when people have to attend a trial.
But, there are also costs in not pursuing or achieving a resolution. Unresolved legal problems tend to cluster to form a web of intertwined issues. Often, social and health costs are piled onto economic costs at both the personal and public levels. Currie’s earlier surveys (2005; 2007) have shown that 38% of people who report an unresolved legal issue develop resulting health or other social problems such as stress, family breakdown or loss of employment. In a recent UK study (2009) it was reported that over 50% of those with an unresolved legal problem needed medical help for stress related illness (see Pleasence et al, Civil Justice in England & Wales 2009). Put simply: an ineffective justice system puts a strain on other social services.
The Cost of Justice survey seeks to help us gain a better understanding of what costs people face and how much the justice system actually costs us – both in real dollars, but also in social capital. The data gleaned by the Cost of Justice project will help provide the basis for evidence-based policy making and will assist in making recommendations as to where resources should be allocated to maximize the administration of justice for Canadians.
Visit www.cfcj-fcjc.org to find out more about the Cost of Justice survey.
– Hannah De Jong, for the Canadian Forum on Civil Justice