Discussions around the “economics of justice” or the “cost of justice” typically focus on the cost of retaining a lawyer, the cost of attending trial and missing work. It is the price an individual must be willing to pay to resolve a legal issue and too often, that price is too high.

Economics of justice are typically framed around calls for a cultural shift in the justice system. The inevitable cultural shift relates to changing accessibility of the judicial process by way of digitalization. There appears to be a pervasive belief that if access to the legal system can be facilitated by way of a user-centred, online forum and innovative thinking then fewer individuals would be denied a meaningful resolution of their claims.

As a result, while the push for alternate forums has been extensive and in some ways impactful, in particular with the implementation of the Civil Resolution Tribunal and the Human Rights Tribunal (the “Tribunals”), the cost of justice has not fundamentally shifted. The reason for this is that at its core, access to justice is a social problem. The cost of retaining a lawyer is just a tiny drop in the bucket of reasons that collectively lead up to the need to appear before a judge or a tribunal member as a self-represented litigant.

There is a tendency to criticize lawyers for charging exorbitant hourly rates as the cause for an increasing number of self-represented litigants, that is, the cost of retaining legal representation is too high and so people choose to deal with their claims on their own. However, what is absent from these conversations is the cost of sustaining a legal practice for the lawyers who charge an hourly rate. What is missing from these conversations is a discussion of whether there are systems in place to filter out vexatious claims that clog up Small Claims Courts or any of the Tribunals. Furthermore, there are no consequences that flow for filing frivolous complaints.

In general, problems with access to justice appear to be bigger than just the ability to commence a claim or file an online complaint. For example, clients who attend the Access Pro Bono Summary Advice Program are more often than not seniors or immigrants who either do not have access to a computer or who do not know how to use a computer and therefore cannot use the Tribunals to aid in the resolution of their claims. They are unable to determine which forms to file in Small Claims and require extensive guidance from the Court Registry. More often than not, it appears that complainants at the Tribunals and claimants in Small Claims Court do not have a clear understanding about what constitutes a legal cause of action.

Instead of a call for further changes to the legal system whereby people are expected to navigate the legal landscape on their own, there must be a call for funding of social programs that create a community around the most disenfranchised. The cultural shift that is necessary here is one of providing a social safety net. Making our legal system more accessible or manageable by self-represented litigants is not the solution to the plight of increased litigation and dissatisfaction with society in general. The solution is in creating a society where people’s needs are respected, where the cause for pursuing litigation is minimized, and most importantly, where people feel supported by the systems in place.