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Current trends in Canadian civil justice system reform : manufactured simplicity or equitable access… Cumming, Kaitlyn 2020

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CURRENT TRENDS IN CANADIAN CIVIL JUSTICE SYSTEM REFORM: MANUFACTURED SIMPLICITY OR EQUITABLE ACCESS TO JUSTICE? by  Kaitlyn Cumming  JD, The University of Alberta, 2015  A THESIS SUBMITTED IN PARTIAL FULFILLMENT OF THE REQUIREMENTS FOR THE DEGREE OF  MASTER OF LAWS in THE FACULTY OF GRADUATE AND POSTDOCTORAL STUDIES   THE UNIVERSITY OF BRITISH COLUMBIA (Vancouver)  December 2020  © Kaitlyn Cumming, 2020  ii  The following individuals certify that they have read, and recommend to the Faculty of Graduate and Postdoctoral Studies for acceptance, a thesis entitled:  Current Trends in Canadian Civil Justice System Reform: Manufactured Simplicity or Equitable Access to Justice?  submitted by Kaitlyn Cumming in partial fulfillment of the requirements for the degree of Master of Laws in Law  Examining Committee: Margot Young, Peter A. Allard School of Law Supervisor  Joel Bakan, Peter A. Allard School of Law Supervisory Committee Member  iii  Abstract The Civil Access to Justice problem in Canada is recognized as a crisis, but even with widespread justice system stakeholder recognition and ongoing attempts at reform, progress is slow.  This thesis undertakes a critical review of modern civil access to justice reforms and jurisprudential developments, using British Columbia as the site of inquiry, to identify limitations to the current approach.  Then, by analyzing the current state of inequality in Canada, and using existing sociological research into processes of cumulative advantage and disadvantage in society, it argues that an expanded framework that will lead to more responsive access to justice reforms is one that takes into account the broader context of socioeconomic stratification and inequality in Canada and that asks how these have impacted the evolution of Canada’s civil justice system.  This analysis also makes clear that achieving progress in civil access to justice requires a conception of access to justice that focuses on the concept of equitable access to justice, which is one that seeks to level the playing field by neutralizing disproportionate advantage or disadvantage in navigating the civil justice system either through structural system change or policy interventions such as robust legal aid funding to provide wider availability of legal representation.  It then operationalizes this expanded framework by conducting an exploratory mixed methodology study, through quantitative statistical case outcome analysis and qualitative interviews of low income legal service providers that looks at the relationship between: (1) British Columbia’s procedural and jurisdictional structure; (2) legal outcomes; and (3) legally advantaged and disadvantaged users.  Lastly, it provides recommendations for future study and reforms that will advance the cause of equitable access to justice. iv  Lay Summary This work seeks to develop new solutions to the problem that Canadian civil justice is slow, inexpensive, confusing and unpleasant enough that many in Canada do not have the real opportunity to use courts and tribunals to ensure that their legal rights matter.  It does this by looking at the access to justice problem through the reality that Canadians do not benefit from a level playing field as they go through life, with society granting many social and economic advantages to those who are born into, or otherwise are placed into, circumstances that help to ensure their success in ways that don’t only depend on individual skill and effort.  This examination leads to the conclusion that the reality of unequal opportunity influences what people get from the Canadian civil justice system in ways that are not addressed by current reforms, and recommends changes that would make the system more fair and accessible for all. v  Preface This thesis is the original, unpublished, independent work of Kaitlyn Cumming.  Interviews conducted as part of the research were approved by the University of British Columbia’s Behavioural Research Ethics Board (BREB) under Certificate Number H19-00084.  Thesis supervisor Margot Young acted as principal investigator under the BREB application process; all research and analysis was completed by Kaitlyn Cumming.  vi  Table of Contents  Abstract ....................................................................................................................................... iii Lay Summary ............................................................................................................................. iv Preface ...........................................................................................................................................v Table of Contents ...................................................................................................................... vi List of Tables .............................................................................................................................. xi List of Abbreviations ............................................................................................................... xii Acknowledgements ................................................................................................................ xiii Dedication ................................................................................................................................. xiv Chapter 1: Introduction .............................................................................................................1 1.1 The Civil Access to Justice Crisis .............................................................................. 1 1.2 Key Concepts and Definitions: The Civil Justice System & Access to Justice .. 4 1.2.1 The Civil Justice System ..................................................................................... 4 1.2.2 Access to Justice .................................................................................................. 7 1.3 Methodology ................................................................................................................ 10 1.4 Thesis Statement and Roadmap ............................................................................. 11 Chapter 2: The Modern A2J Reform Landscape ..............................................................13 2.1 Introduction .................................................................................................................. 13 2.2 Stakeholders in the Modern A2J Reform Landscape ........................................... 13 2.3 Chronology of Modern Civil Justice and A2J Reforms ......................................... 16 2.3.1 Procedural Shifts and Lack of Progress ......................................................... 18 2.3.2 Focus on Everyday Legal Problems – A Culture Shift? ............................... 22 vii  2.3.3 BC Reforms After the ‘Culture Shift’ ................................................................ 24 2.3.4 Dominant Trends in Modern A2J and Civil Justice Reform ......................... 27 2.4 Conclusion ................................................................................................................... 28 Chapter 3: Judicial Treatment of A2J ..................................................................................31 3.1 Introduction .................................................................................................................. 31 3.2 Constitutional A2J Before TLA (2014) .................................................................... 33 3.3 Constitutional A2J in TLA (2014) ............................................................................. 44 3.4 Evolution of s. 96 since TLA (2014) ........................................................................ 50 3.5 Procedure, Jurisdiction and A2J .............................................................................. 58 3.6 Costs & Inherent Jurisdiction .................................................................................... 64 3.7 Conclusion ................................................................................................................... 68 Chapter 4: Towards Equitable A2J – An Expanded Approach .....................................70 4.1 Introduction .................................................................................................................. 70 4.2 The Playing Field: Inequality in Canada ................................................................. 71 4.2.1 Income and Wage Inequality ............................................................................ 71 4.2.2 Wealth Inequality ................................................................................................ 74 4.2.3 Health Outcome Inequalities ............................................................................ 77 4.2.4 Consequences of Rising Inequality on Institutions ....................................... 78 4.2.5 Conclusion ........................................................................................................... 80 4.3 Cumulative Advantage and Disadvantage as a Broad Sociological Theory .... 81 4.3.1 Types of CA Studies: Status-based & strict, exponential CA ...................... 81 4.3.2 Breadth and Dimensions of CA Theory: Inequality as Process and Outcome .............................................................................................................................. 84 viii  4.3.3 CA in Practice: Health Outcomes .................................................................... 86 4.3.4 Conclusion ........................................................................................................... 88 4.4 Equitable A2J and CA Theory: An Expanded Approach ..................................... 89 4.4.1 Meagre Gains in Civil A2J................................................................................. 89 4.4.2 Cumulative Advantage Theory and the Civil Justice System ...................... 93 4.5 Conclusion ................................................................................................................... 96 Chapter 5: Mixed Methodology Research – Evaluating Equitable A2J ......................98 5.1 Introduction .................................................................................................................. 98 5.2 Methodology .............................................................................................................. 100 5.2.1 Introduction ........................................................................................................ 100 5.2.2 Quantitative Approach ..................................................................................... 102 5.2.3 Qualitative Approach ....................................................................................... 105 5.2.4 Integration .......................................................................................................... 107 5.2.5 Validity, Reliability & Methodological Integrity ............................................. 108 5.3 Quantitative Analysis ............................................................................................... 109 5.3.1 Introduction ........................................................................................................ 109 5.3.2 Users of General Civil Tribunals & Courts: General Characteristics of the Data………. ....................................................................................................................... 111 5.3.2.1 BCSC ............................................................................................................. 112 5.3.2.2 BCPC ............................................................................................................. 114 5.3.2.3 BCCRT ........................................................................................................... 114 5.3.2.4 Discussion ..................................................................................................... 115 5.3.3 The Effects of Representation on Civil Justice Outcomes ........................ 117 ix  5.3.3.1 BCSC ............................................................................................................. 118 5.3.3.2 BCPC ............................................................................................................. 118 5.3.3.3 BCCRT ........................................................................................................... 119 5.3.3.4 Discussion ..................................................................................................... 119 5.3.4 The Effects of User Types on Civil Justice Outcomes ............................... 120 5.3.4.1 BCSC ............................................................................................................. 122 5.3.4.2 BCPC ............................................................................................................. 123 5.3.4.3 BCCRT ........................................................................................................... 124 5.3.4.4 Discussion ..................................................................................................... 125 5.4 Qualitative Analysis: The Playing Field for Low Income Users ........................ 128 5.4.1 Introduction ........................................................................................................ 128 5.4.2 Interview Data ................................................................................................... 129 5.4.3 Client Population and Legal Issues at Stake ............................................... 130 5.4.4 Barriers and Challenges .................................................................................. 133 5.4.5 The Nature of Success .................................................................................... 137 5.4.6 Role of the Legal Professional & Direction of A2J ...................................... 139 5.5 Integration, Implications & Conclusion .................................................................. 141 Chapter 6: Conclusion ...........................................................................................................143 6.1 Findings and Recommendations ........................................................................... 143 6.2 Limitations of Research ........................................................................................... 145 6.3 Areas for Future Research ..................................................................................... 145 6.4 Contributions to the Literature ................................................................................ 145 6.5 Conclusion ................................................................................................................. 146 x  Bibliography .............................................................................................................................147 Appendix A: Open-Ended Interview Questions for Qualitative Interviews .............159 Appendix B: Case Citations used in Case Databases ..................................................160  xi  List of Tables  Table 1: Users of General Civil Tribunals and Courts ................................................. 111 Table 2: Representation and Outcomes ...................................................................... 117 Table 3: Users and Success ....................................................................................... 121   xii  List of Abbreviations A2J – Access to Justice A2JBC – Access to Justice British Columbia ADR – Alternative Dispute Resolution BC – British Columbia BCCA – British Columbia Court of Appeal BCCRT – British Columbia Civil Resolution Tribunal BCPC – British Columbia Provincial Court BCSC – British Columbia Supreme Court CA – Cumulative Advantage and Disadvantage CBA – Canadian Bar Association CFCJ – Canadian Forum on Civil Justice CRT – Civil Resolution Tribunal JDGs – Canada’s Justice Development Goals MVA – Motor Vehicle Accident SRLs – Self-Represented Litigants TLABC – Trial Lawyers Association of British Columbia      xiii  Acknowledgements I would like to thank my supervisor, Margot Young, for providing direction and guidance throughout my graduate studies.  Her comments and suggestions have pushed me to create better and more meaningful work.  I am grateful for comments provided by my second reader, Joel Bakan, who has helped me challenge and develop my own ideas. I have had the privilege of meeting many supportive members of the Peter A. Allard School of Law.  Faculty members Michelle LeBaron, Galit Sarfaty, Janis Sarra and Alexandra Flynn have all contributed to my academic development and provided a warm and welcoming atmosphere.  Joanne Chung and Anna Kline both helped me navigate this process in more ways than I can count.  I am thankful for thought-provoking discussions with classmates Carmelle Dieleman, Shannon Russell, Alexandra Chapman, Oludolapo Makinde, Adam Soliman, Helen Tooze, Ijeamaka Anika, Justin Ng, Roland Nadler and Terri-Lynn Williams-Davidson, and the continued inspiration they provide.  Thank you to Gerry Veenstra, Lindsey Richardson, and Elizabeth Hirsch, all of the Department of Sociology, for expanding my horizons and giving me valuable new research skills.  I was fortunate to receive generous financial support through the Law Foundation of BC’s Graduate Fellowship and the Allard School of Law Graduate Scholarship. This research would not have been possible without the support of those outside my academic circle.  To my friends and mentors at Fulton & Company LLP, thank you for being so accommodating and for helping me to get my feet wet as a litigation lawyer.  Finally, I am extremely grateful to all my friends and family, who have been there for me through many life changes over the last few years. xiv  Dedication  This work is dedicated to all those who strive to make the world a better place, in their own small or big ways, even when the outcome is uncertain. 1  Chapter 1: Introduction 1.1 The Civil Access to Justice Crisis A mentor of mine, a veteran criminal legal aid lawyer who supervised me as part of a course at the University of Alberta, gave me a parting gift when our time together ended.  It was a book by John Mortimer called Forever Rumpole, a collection of stories about an unconventional English criminal barrister named Horace Rumpole with “wit… disdain for personal ambition and… delight in taking on apparently hopeless cases.”  Much like my mentor, Rumpole cared about those others had written off, was not afraid of a monumental challenge, and held a deep, unshakeable sense of justice.  Both those lawyers – fictional and real – have stuck with me as I’ve come to know the justice system in Canada as a law student, then lawyer, then researcher.  Their lessons hold great value in confronting the long-standing Access to Justice (“A2J”) crisis in Canada.  Courts and tribunals are slow, confusing and difficult to navigate, and large swathes of the Canadian population cannot afford the legal representation they need to meaningfully access the justice system.1   Though the stakes of justice are starker in the criminal justice venues that these two lawyers occupied, justice and fairness are foundational concerns of civil justice as well.  Consider an employer who fires an employee for a mental illness; or an Indigenous group taking the government to court to assert treaty rights left hollow and unrecognized; or a business callously reneging on a deal, leaving another business with an unexpected  1 For a small selection of this work, that will be covered in more depth later on, see: Action Committee on Civil and Family Justice, Access to Civil & Family Justice: A Roadmap for Change (October 2013), online: http://cfcj-fcjc.org/sites/default/files/docs/2013/AC_Report_English_Final.pdf [Roadmap for Change]; Canadian Forum on Civil Justice, Everyday Legal Problems and the Cost of Justice in Canada: Overview Report (2016), online: http://www.cfcj-fcjc.org/sites/default/files//Everyday%20Legal%20Problems%20and%20the%20Cost%20of%20Justice%20in%20Canada%20-%20Overview%20Report.pdf [Everyday Legal Problems]; Mary Stratton, “Some Facts and Figures from the Civil Justice System and the Public,” (November 2010) Canadian Forum on Civil Justice online: <http://www.cfcjfcjc.org/sites/default/files/docs/2010/cjsp-ff-en.pdf> [Civil Justice Facts and Figures]; Denice Barrie, Karima Budhwani, and Wayne Robertson, “Poverty Law Needs Assessment and Gap/Overlap Analysis Report,” (November 2005) The Law Foundation of British Columbia online: <http://www.lawfoundationbc.org/wpcontent/uploads/PovertyLawNeedsAssessment_NOV05.pdf> [Poverty Law Needs Assessment]. 2  shortfall for which it didn’t budget or plan.  Each of these scenarios offends our sense of fairness and falls short of what we expect of each other in society, and all are actionable within Canada’s civil justice system.  While all these disputes are actionable in the formal legal sense, in reality, many people are unable to vindicate their rights in an adjudicative setting.  Others attempt to engage the system but are alienated, hindered and frustrated by the process.  All of these individuals lack A2J, a notion that “encompasses all the elements needed to enable people to identify and manage their everyday legal needs and address their legal problems, seek redress for their grievances, and demand that their rights be upheld.”2  The complexity of what this definition means and requires to be made effective in practice will be a theme throughout this thesis. While the definitional and normative aspects of A2J are not entirely settled, it is commonly accepted that civil A2J for individuals of low or modest incomes is a significant challenge in Canada.  According to the Everyday Legal Problems and Cost of Justice in Canada report, released in 2016, 48.4% of the Canadian population experienced one or more “everyday” legal problems (debt, employment or housing related) within a three-year period.3  Of those, only 7% of respondents accessed courts or tribunals to deal with their legal problem;4 19% obtained legal advice of some kind; 49% reported that they had attempted but failed to achieve a negotiated solution with the other party; and, 30% reported that their legal issue remained unresolved.5  At the state level, the Canadian Forum on Civil Justice (a major non-profit organization that seeks to advance “civil justice reform through research and advocacy”6) estimates that social assistance, loss of employment, and physical and mental health problems resulting directly from  2 Access to Justice BC, Access to Justice Measurement Framework (2018), online: https://ajrndotco.files.wordpress.com/2018/03/a2jbc-measurementframework.pdf [A2J Measurement]. 3 Everyday Legal Problems, supra note 1; for methodology utilized in the survey, see online: https://digitalcommons.osgoode.yorku.ca/cgi/viewcontent.cgi?referer=https://ca.search.yahoo.com/&httpsredir=1&article=1181&amp;context=reports 4 Ibid, Everyday Legal Problems at 6 and 9.  5 Ibid at 10-11. 6 Canadian Forum on Civil Justice, “About Us”, online: https://cfcj-fcjc.org/about-us/  3  experiencing “everyday” legal problems costs Canada $800 million per year.7  Compared to other “high income countries”, Canada ranked 20 out of 35 on civil access to justice, according to the international 2018 Rule of Law Index published by the World Justice Project; in the 2020 index, it ranked 19 out of 37.8  Clearly, much work remains to be done.   Efforts to address barriers to justice are by no means a recent phenomenon, as will be outlined in the following chapter.  However, the attention being paid to concept of A2J continues to grow, with many justice system stakeholders, including the courts themselves, recognizing the magnitude of the problem.  Then Chief Justice of the Supreme Court of Canada Beverley McLachlin put it this way in 2013: “as Canadians celebrated the new millennium, it became clear that we were increasingly failing in our responsibility to provide a justice system that was accessible, responsive and citizen-focused.”9  Despite growing attention to civil A2J, dedicated stakeholders, and numerous reforms stretching back decades (detailed in chapter 2), there are few clear indications that the crisis is improving.  Chief Justice of Canada Richard Wagner conveyed the state of affairs on A2J in a 2018 speech in these words: “the more things change, the more they stay the same.”10 Why, then, is progress on civil A2J so stagnant?  It is not so much that the scale of the problem is not recognized or that there is a lack of ideas – many good – about what the civil justice system ought to be.  Instead, this thesis argues that slow institutional change in improving access to the civil justice system results from failing to address the underlying nature of the A2J problem and what fuels its pervasive nature.  What is needed, it will be  7 Everyday Legal Problems, supra note 1 at 16; for another discussion of the costs of unresolved legal issues, and one which does consider income levels, see M. Stratton and T. Anderson, “Social, economic and health problems associated with a lack of access to the courts” (March 2006) Canadian Forum on Civil Justice, online: http://cfcj-fcjc.org/sites/default/files/docs/2008/cjsp-socialproblems-en.pdf [Problems With Lack of Access to Courts].  8 J. Carlos Botero et al., The World Justice Project, Rule of Law Index (2018) at 67, online: <https://worldjusticeproject.org/sites/default/files/documents/WJP-ROLI-2018-June-Online-Edition_0.pdf>; Rule of Law Index (2020) at 56, online: <https://worldjusticeproject.org/sites/default/files/documents/WJP-ROLI-2020-Online_0.pdf>. 9 Roadmap for Change, supra note 1. 10 Chief Justice of Canada Richard Wagner, “Access to Justice: A Societal Imperative” (October 2018) online: <https://www.scc-csc.ca/judges-juges/spe-dis/rw-2018-10-04-eng.aspx> [A2J Societal Imperative].  4  proposed, is re-conceiving the relationship between the institutions of civil justice and its users within a broader socioeconomic context – one that shows that structural inequality is stubborn and embedded in Canadian society, including within the institutions that make up our civil justice system.  Only after fully and willingly confronting this reality of inequality and the impact it has on the ongoing evolution of civil justice will we be able to face the A2J problem and design responsive solutions.   1.2 Key Concepts and Definitions: The Civil Justice System & Access to Justice 1.2.1 The Civil Justice System One dictionary definition of ‘civil’ means “of, relating to, or involving the general public, their activities, needs, or ways, or civic affairs as distinguished from special (such as military or religious) affairs11”; while this definition is not a precise description of all matters that would fall under the purview of the civil justice system, it provides a sense of the purpose of civil justice: the ordering of the general public and their socioeconomic affairs.  However, it also includes public law actions between the general public and government institutions, which are often concerned with balancing the rights and entitlements of the individual with the public good, ensuring that legislation maintains pace with society’s values, or with holding the state accountable.12 Family law matters might fall under this more general dictionary definition (as it relates to civil marriage or common law unions), but has been excluded from this thesis as (1) family law matters are decided pursuant to separate adjudicative structures with their own procedural rules (Supreme Court Family Rules13 or Provincial Court (Family) Rules14 in British Columbia), and (2) family law dynamics and power relations involve distinct  11 Merriam Webster, Dictionary definition of ‘Civil’, online: https://www.merriam-webster.com/dictionary/civil 12 For example, public interest litigation launched on the basis of the Canadian Charter of Rights and Freedoms, Part I of the The Constitution Act, 1982, being schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter]; see, for example, a discussion of the importance of public interest standing in Charter litigation in Canada (Attorney General) v. Downtown Eastside Sex Workers United Against Violence Society, 2012 SCC 45. 13 BC Reg 169/2009. 14 BC Reg 417/98. 5  elements (discussed at length in other academic literature15) due to their subject matter of intimate familial relationships. Each province in Canada operates its own civil court system.  In this thesis, the focus of inquiry is British Columbia to provide a concrete procedural and jurisdictional civil adjudicative structure for discussion and analysis and based upon where the researcher is situated and has the greatest familiarity.   More generally, when not explicitly discussing British Columbia’s court and tribunal system, the civil justice system in this thesis refers to all “civil” legal matters within Canada’s common law legal system, specifically excludes family16 and criminal law, and is distinct from Quebec’s civil law system17 inherited from the French legal tradition.  Civil legal matters, then, are those disputes that would fall under (either through trial, appeal or judicial review) the jurisdiction of the Supreme Court Civil Rules18, or its other provincial counterparts.   In British Columbia, general civil adjudication is divided into three separate forums, with jurisdiction based primarily on monetary limits (there are also other restrictions on jurisdiction – for example, the Civil Resolution Tribunal cannot decide constitutional questions19).  The Civil Resolution Tribunal (the “CRT”) decides small claims matters up to $5,00020; the Provincial Court (Small Claims division) determines disputes from $5,001-35,00021, and the Supreme Court22 (British Columbia’s superior trial court of inherent jurisdiction based on s. 96 of the Constitution Act, 186723) has jurisdiction over all  15 See, for one example, Patrick Parkinson, Family Law and the Indissolubility of Parenthood (2011, New York: Cambridge University Press). doi:10.1017/CBO9780511921063.; for a general reference text on family law issues in Canada, see Julien D Payne. and Marilyn A. Payne, Canadian Family Law 8/e (2020, Toronto, CA: Irwin Law Inc). 16 BC Reg 18/2010 [SCCR]; It should be noted that some stakeholders consider “Civil” and “Family” law together in the A2J debate, such as the Action Committee on Civil and Family Justice.  17 See Civil Code of Québec, CQLR c CCQ-1991. 18 SCCR, supra note 16. 19 Civil Resolution Tribunal Act, SBC 2012, c 25, s 113. 20 Tribunal Small Claims Regulation, BC Reg 232/2018, s. 3. 21 Small Claims Court Monetary Limit Regulation, BC Reg 179/2005. 22 Supreme Court Act, RSBC 1996, c 443. 23 30 & 31 Vict, c 3, s. 96: “The Governor General shall appoint the Judges of the Superior, District and County Courts in each Province, except those of the Court of Probate in Nova Scotia and New Brunswick”; the judicial history of s. 96 is complicated, but generally, it has been interpreted to protect the “core jurisdiction” of superior courts, including the jurisdiction of superior courts to judicially review the exercise of jurisdiction by inferior 6  remaining civil matters that do not fall under exclusive federal jurisdiction.  Provincial Court Small Claims appeals are made to Supreme Court24, while decisions of the CRT are judicially reviewable (a more limited form of challenge to a legal decision than an appeal25) by the Supreme Court.26  Decisions of the Supreme Court, including a judicial review from a tribunal or an appeal from Small Claims, can be appealed to the British Columbia Court of Appeal27, which is also a superior court with federally appointed judges.  From there, the Supreme Court of Canada acts as Canada’s apex court and hears appeals from around the country on leave.28 In addition, British Columbia operates several specialized boards and tribunals that decide specific categories of civil matters.  Some notable examples include the Human Rights Tribunal29, the Residential Tenancy Board30, the Workers Compensation Appeal Tribunal31, and the Employment Standards Tribunal32.  The decisions of each of these can be judicially reviewed by the Supreme Court by operation of s. 96, their enabling legislation, and the Administrative Tribunals Act.33 In reality, beyond its formal structure, the civil justice system is a complicated and inter-related web of adjudicative and dispute resolution mechanisms.  Administrative tribunals, informal negotiation, alternative dispute resolution processes, mandatory arbitration clauses, class action lawsuits, small claims courts, and contingency fee arrangements, to  tribunals: Trial Lawyers Association of British Columbia v. British Columbia, 2017 BCCA 324 [TLA 2017] at paras 47-48. 24 Small Claims Act, RSBC 1996, c 430, s. 5. 25 The definition and parameters of judicial review is a complicated subject, but the BC Courts describe it in this basic way: “A judicial review is a review of a decision that has been made by an administrative tribunal or an administrative decision maker. A Supreme Court Justice decides whether the tribunal or decision maker had the authority to make the decision it did. It is not an appeal.” online: https://www.bccourts.ca/supreme_court/self-represented_litigants/Judicial_Review_Package.pdf  26 See part 5.1 of the Civil Resolution Tribunal Act, SBC 2012, c. 25 and the Administrative Tribunals Act, SBC 2004, c 45 [Administrative Tribunals Act]. 27 Court of Appeal Act, RSBC 1996, c 77, s. 6. 28 Supreme Court Act, RSC 1985, c S-26, s. 40(1). 29 Human Rights Code, RSBC 1996, c 210, s. 31. 30 Residential Tenancy Act, SBC 2002, c 78, part 5. 31 Workers Compensation Act Appeal Regulation, BC Reg 321/2002. 32 Employment Standards Act, RSBC 1996, c 114, part 12. 33 Administrative Tribunals Act, supra note 26. 7  name but a few, are all alternative methods to traditional superior court adjudication that have evolved over time, often in the name of greater A2J or to promote efficiency (two overlapping but distinct reform objectives), as will be touched on in the following chapter.  Each of these mechanisms has a separate relationship to Canadian superior courts of inherent jurisdiction (in British Columbia, the Supreme Court and Court of Appeal), whose influence remains as a decision maker and supervisory body due to their constitutionally protected status under section 96 of the Constitution Act, 186734.  Collectively, these are all components of our civil justice system.   The Canadian Forum on Civil Justice relates the connections between these informal and formal components of civil justice, in part, through the concept of the “shadow of the law”, which “gives individuals and businesses the confidence to enter into personal and business relationships, and informs their expectations when disputes arise… [t]he backdrop of norms and principals developed through courts allow people to resolve problems.”35  Throughout this thesis, these connections and their relationship to A2J will be explored.    1.2.2 Access to Justice As mentioned, the definitional and normative components of A2J are not entirely settled, and no generally accepted definition of A2J exists.  However, important stakeholders (described more fully in the following chapter) agree on many characteristics.  While the focus in this project is on contemporary understandings of A2J used by legal stakeholders in British Columbia and Canada as these are what drive the rationales and aims of reforms, it is worth noting that a large body of academic commentary on the definition and evolution of A2J exists, a thorough review of which is outside the scope of this thesis36.  In general, reform-oriented definitions of A2J draw from  34 supra note 23. 35 Canadian Forum on Civil Justice, “News and views on civil justice reform” (Issue 11, Winter 2007) at 8, online: http://www.cfcj-fcjc.org/sites/default/files/docs/news_and_views/newsviews11-en.pdf. 36 See, for example: M. Cappalletti and Bryant Garth, “Access to justice: The newest wave in the worldwide movement to make rights effective” (1978) 27 Buffalo Law Review 181. [A2J: The Newest Wave]; Yaniv Roznai and Mordechay Nadiy, "Access to Justice 2.0: Access to Legislation and Beyond" (2015) 3:3 The Theory and Practice of 8  and have much in common with the academic literature.  While the review below is not exhaustive of all stakeholder definitions, it highlights how influential organizations and institutions view the problem of A2J. The Right Honourable Richard Wagner, P.C., Chief Justice of Canada, addressed defining A2J in October 2018 during his remarks Access to Justice: A Societal Imperative at the 7th Annual Pro Bono Conference in Vancouver.37  His comments take a broad view of A2J that describes its multi-faceted aspects: “Access to justice” can mean many things. Having the financial ability to get legal assistance when you need it. Being informed of your right to counsel when your liberty is at stake. Having courts that can resolve your problem on time. But it also means knowing what tools and services are available, and how to get to them. It means knowing your rights and knowing how our legal systems work. It can even mean seeing people like yourself represented in all parts of the legal system. And it means having confidence that the system will come to a just result – knowing you can respect it, and accept it, even if you don’t agree with it. Ultimately, it is about getting good justice for everyone, not perfect justice for a lucky few. It’s a democratic issue. It’s a human rights issue. It’s even an economic issue…38  Recently, in a 2017 research paper, the Department of Justice of Canada developed the following definition of A2J for use in its “Access to Justice Index” for federal administrative bodies that encompasses knowledge of legal rights, access to legal assistance in some form, and a procedural system that is both fair and fast:  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.39   Legislation 333; L Toohey, M Moore, K Dart and D Toohey, ‘Meeting the Access to Civil Justice Challenge: Digital Inclusion, Algorithmic Justice, and Human-Centered Design” (2019) 19 Macquarie Law Journal 133; Rebecca L. Sandefur, “Access to Civil Justice and Race, Class and Gender Inequality,” (2008) 34 Annual Review of Sociology 339; Roderick A. Macdonald, “Access to Justice in 2003: Scope, Scale and Ambitions in J. Bass, W.A. Bogart and F.H. Zemans, eds., Access to Justice for a New Century – The Way Forward (Toronto: Irwin, 2006) at 20.; Trevor C.W. Farrow, “What is Access to Justice?” (2014) 51:3 Osgoode Hall Law Journal 957. 37 A2J Societal Imperative, supra note 9. 38 Ibid. 39 Susan McDonald, “Development of An Access to Justice Index for Federal Administrative Bodies” (2017), Research and Statistics Division of the Department of Justice Canada, online: https://www.justice.gc.ca/eng/rp-pr/jr/fab-eaf/p3.html  9  In a similar but more succinct statement, Access to Justice British Columbia (“A2JBC”) defines A2J as “encompass[ing] all the elements needed to enable people to identify and manage their everyday legal needs and address their legal problems, seek redress for their grievances, and demand that their rights be upheld.”40   In its 2013 report, “A Roadmap for Change”, the Action Committee on Civil and Family Justice (the “Action Committee”) describes similar components as the two preceding examples, but goes farther by highlighting an ‘expansive vision’ of A2J that focuses on the perspective of the user: …Key to this understanding of the justice system is [looking] at everyday legal problems from the point of view of the people experiencing them. Historically, access to justice has been a concept that centered on the formal justice system (courts, tribunals, lawyers and judges) and its procedures… but a more expansive, user centered vision of an accessible civil and family justice system is required. We need a system that provides the necessary institutions, knowledge, resources and services to avoid, manage and resolve civil and family legal problems and disputes. That system must be able to do so in ways that are as timely, efficient, effective, proportional and just as possible…41  Lastly, the Canadian Bar Association’s Equal Justice Initiative’s vision of A2J is of “an inclusive justice system that is equally accessible to all, regardless of means, capacity or social situation.”42  This definition is unique in its explicit focus on equal justice, whereas the preceding definitions do not explicitly recognize equality of access as a necessary component, centering instead on what any single user requires.  One of the arguments in this thesis, developed in chapter 5, is that an equitable vision of A2J (“Equitable A2J”) is required to generate the system changes required to provide meaningful increases in A2J. As the preceding review shows, A2J contains elements that operate both inside and outside formal justice processes (and which, as explored more in the following chapters, influence each other).  This project emphasizes formal civil justice institutions given its aim to evaluate civil A2J from a systemic perspective.  In this realm, A2J has been  40 A2J Measurement, supra note 2. 41 Roadmap for Change, supra note 1. 42 Canadian Bar Association, “Reaching Equal Justice: Advocacy Guide”, online: https://www.cba.org/CBA-Equal-Justice/Home  10  interpreted to mean not just formal access to adjudicative processes, but effective, meaningful access, including a fair process capable of achieving a just outcome (“Substantive A2J”).  What this means will be explored in more depth in the A2J case analysis of chapter 3, but the connection between procedure and outcome in achieving Substantive A2J is worth briefly introducing here.   In  AIC Limited v. Fischer43, an appeal to the Supreme Court of Canada concerning class action certification, Mr. Justice Cromwell broke down the two interconnected components of Substantive A2J in an adjudicative setting: (1) process (access to fair process to resolve their claims) and (2) substance (just and effective remedy to claims if established)44.  Importantly, the Supreme Court of Canada recognized that process defects may raise doubts as to substantive outcome, and vice versa.45  This is an important observation, given that many modern A2J reforms – outlined in the next chapter – have focused on simplifying and streamlining through procedural rule changes or by shifting jurisdiction to adjudicative bodies that each operate under distinct procedural frameworks.  A recurring question posed in this thesis is whether the work has been done to understand if simplified procedural frameworks are capable of producing just results; otherwise stated, have such reforms merely created the appearance of access, or do they promote Substantive and Equitable A2J?  1.3 Methodology The primary methodology used in Chapter 2 is documentary and secondary source review that focuses on tracing the evolution of A2J in British Columbia and Canada.  In its evaluation of reform reports and studies, it draws from deconstruction46 techniques to identify what is missed or under-appreciated in dominant A2J reforms.   Doctrinal legal  43 2013 SCC 69. 44 Ibid at para 24. 45 Ibid. 46 For a general overview of what deconstruction in critical legal studies is, see Jack M Balkin, “Deconstruction” (2010 Oxford UK: Wiley-Blackwell) A Companion to Philosophy of Law and Legal Theory at ch.23. 11  analysis in Chapter 3 traces the development of the law on A2J rights to determine the legal possibilities and limitations of advancing A2J rights in the courts; this helps to complete a picture of the A2J landscape in British Columbia and Canada.  A literature review is completed in Chapter 4 on the status and causes of inequality in Canada, then analyzed in the context of research completed in previous chapters to develop a theoretical basis and expanded framework for understanding the interactions between inequality in society and Canada’s civil justice system.  Finally, a mixed methodology study is undertaken in Chapter 5 to explore and test the theory developed in Chapter 4; full details on the methodology employed in the study is contained within the methodology section of Chapter 5.  1.4 Thesis Statement and Roadmap The main question this thesis seeks to answer is whether the civil justice system in Canada struggles with civil A2J for low and middle income users because the system, as a social institution, is vulnerable to the very same processes that drive broader inequality in society, despite the promise of the rule of law47 (the idea that the law applies equally to all).  Is this promise, then, simply mythical?  My project takes up this question, using British Columbia as an example and site of inquiry, in stages.  First, it reviews and analyzes trends in modern civil A2J reform, identifying shortcomings and possible unintended consequences of the dominant approach.  Second, it outlines courts’ limited role – either through reticence or constitutional limitations – in protecting and fostering A2J rights to further delineate the A2J landscape.  Third, it proposes an expanded framework for evaluating A2J within the civil justice system through developing a broader understanding of the socioeconomic realities of structural inequality and the processes  47 As reads the preamble to the Charter: “Whereas Canada is founded upon principles that recognize the supremacy of God and the rule of law”; Canada also adopted the United Nation’s 2030 Agenda for Sustainable Development in 2015, including Sustainable Development Goal 16.3 to “Promote the rule of law at the national and international levels and ensure equal access to justice for all”, online: https://www.un.org/sustainabledevelopment/peace-justice/ and Government of Canada, The 2030 Agenda for Sustainable Development, online: https://www.international.gc.ca/world-monde/issues_development-enjeux_developpement/priorities-priorites/agenda-programme.aspx?lang=eng.   12  that create it.  This is done by reviewing the literature on inequality in Canada and the sociological theory of cumulative advantage and disadvantage (“CA theory”) in society and theorizing its application to civil justice system institutions.  Fourth, it operationalizes this expanded framework through mixed methodology study that conducts initial exploratory research into the interactions between civil justice system outcomes and socioeconomic status.  Lastly, this project proposes recommendations for future research and A2J reform. What this shift in thinking illustrates is that what Substantive A2J actually requires is Equitable A2J – a conception of access to justice that acknowledges that fairness and justice in civil A2J is relational and hinges on institutional efforts to ensure that the system neither disproportionately disadvantages or advantages any particular type of user.  Otherwise, promises of the rule of law will remain woefully unfulfilled. 13  Chapter 2: The Modern A2J Reform Landscape 2.1  Introduction This chapter provides an overview of the modern A2J and civil reform landscape to improve understanding of the ideas and assumptions that have driven decades of reforms that have produced meagre gains in civil A2J.  It does this by first describing the legal stakeholders that drive system change, which is a diffuse and interrelated set of groups and institutions.   It then proceeds to outline a chronology of major modern reforms efforts, using 1996 as a starting point, with a particular emphasis on official government action in British Columbia undertaken in response to reform report and recommendations.  Lastly, it identifies dominant trends in the modern A2J reform landscape and proposes that greater examination of the consequences of structural civil justice system change is required to meaningfully move forward with A2J reform.  2.2 Stakeholders in the Modern A2J Reform Landscape Responsibility over A2J and the administration of justice is diffuse, which creates difficulties in coordination and accountability.  Provincial legislatures are granted constitutional responsibility over the administration of justice pursuant to s. 92(14) of the Constitution Act, 186748, except over areas of exclusive federal jurisdiction.  Section 92(14) is also subject to the limitations of s. 96 of the Constitution Act, 1867, which carves out and protects the independence and existence of superior courts, including the ability of superior court judges to exercise their inherent jurisdiction in “resolv[ing] disputes between individuals and decid[ing] questions of private and public law.”49  While a full discussion of the constitutional terrain over the administration of justice is beyond the scope of this project, the relationship between s. 92(14) and s. 96 in the context of A2J will be delineated in chapter 3, which details the jurisprudential evolution of A2J rights.  48 supra note 23; Section 92 lists matters of exclusive provincial jurisdiction, including s. 92(14), which reads: “The Administration of Justice in the Province, including the Constitution, Maintenance, and Organization of Provincial Courts, both of Civil and of Criminal Jurisdiction, and including Procedure in Civil Matters in those Courts” 49 Trial Lawyers Association v British Columbia (Attorney General), 2014 SCC 59 at para 32 [TLA (2014)]. 14  Beyond superior courts and the provincial legislature, an independent and self-regulating legal profession is a major justice system stakeholder and, in British Columbia, is regulated through the Legal Profession Act50 (with similar counterparts in other Canadian provinces and territories).  The Law Societies51 of each province and the Canadian Bar Association52 (“CBA”) are the major organizing institutions within the legal profession, though many other more specialized professional associations exist such as the Trial Lawyers Association of British Columbia53 (“TLABC”).  Law schools around the country also engage in research in the area of A2J and civil justice reform54.   In addition, law schools house and are engaged with significant non-profit law reform and advocacy institutions, including the British Columbia Law Institute55 at the University of British Columbia (created in 1997, and which deals with a wide variety of legal issues, including civil justice) and the Canadian Forum on Civil Justice (“CFCJ”) at Osgoode Hall Law School (created in 1997, and located at the University of Alberta until 2011)56.  The National Action Committee on Access to Justice in Civil and Family Matters (the “Action Committee”) has emerged as a major stakeholder in recent years, is part of the CFCJ, and was established by Chief Justice Beverley McLachlin in 200857.  The Action Committee’s focus is on “fostering engagement, pursuing a strategic approach to reforms and coordinating the efforts of all participants concerned with civil and family justice”58.   The activities of the BCLI, CFCJ, the Action Committee and other similar institutions feature varying degrees of participation and support by researchers, academics, legal professionals, the judiciary, provincial and federal governments, and other non-profit  50 SBC 1998, c 9. 51 For example, the Law Society of British Columbia, online: https://www.lawsociety.bc.ca/  52 See online: https://www.cba.org/Home  53 See online: https://www.tlabc.org/  54 As one notable A2J example, the University of Windsor’s law faculty has run the Windsor Yearbook of Access to Justice since 1979.  See online: https://www.uwindsor.ca/law/wyaj/   55 “About Us”, online: https://www.bcli.org/  56 Canadian Forum on Civil Justice, “About Us”, online: https://cfcj-fcjc.org/about-us/  [About CFCJ]. 57 See Canada’s Justice Development Goals, “About the Action Committee”, online: http://www.justicedevelopmentgoals.ca/ [About the Action Committee]. 58 Online: https://cfcj-fcjc.org/action-committee/  15  organizations59.  The Action Committee, in particular, seeks to be “broadly representative of all sectors of the civil… justice system as well as of the public.”60 Lastly, non-profits and community organizations are engaged in reform and advocacy activities; many of these employ lawyers and/or community advocates.  As one example, Law Foundations throughout the country are major institutions involved in funding and research.  In British Columbia, the Law Foundation was established under the Legal Profession Act61, and has a mandate to “fund legal education, legal research, legal aid, law reform and law libraries for the benefit of British Columbians”; its mission is to “advance and promote a just society governed by the rule of law, through leadership, innovation and collaboration”62.  It was created in 1969 and is funded through the interest earned on lawyers’ trust accounts.63  Other organizations working to increase A2J in British Columbia include, but are not limited to, Access Pro Bono64, Access to Justice BC65 (“A2JBC”), Legal Aid BC66, and other legal service providers that pursue systemic and advocacy work such as the Community Legal Assistance Society of BC67 and Rise Women’s Legal Centre68. This high-level overview showcases that many legal stakeholders are involved in the civil justice system and A2J reform in varying capacities.  The Action Committee, in particular, has been at the forefront recent A2J narratives, and is engaged in coordinating and tracing many of the A2J initiatives occurring throughout the country.  Tracing progress is the primary aim of the Action Committee’s development of Canada’s Justice  59 See, for example, a list of funders and member organizations involved in the Action Committee, online: https://cfcj-fcjc.org/action-committee/supporters/  60 Roadmap for Change, supra note 1 at v. 61 Supra note 50. 62 Law Foundation of British Columbia, “Mandate, Missions and Strategic Priorities”, online: https://www.lawfoundationbc.org/about-us/mandate-mission-and-strategic-priorities/ 63 Law Foundation of British Columbia, “History of the Law Foundation”, online: https://www.lawfoundationbc.org/about-us/history/  64 Online: https://www.accessprobono.ca/  65 Online: https://accesstojusticebc.ca/  66 Legal Aid BC is established pursuant to the Legal Services Society (LSS Act), SBC 2002, c 30, and is the province’s legal aid provider, but also has an object to “…provide advice to the Attorney General respecting legal aid and access to justice for individuals in British Columbia” (s. 9). 67 Online: https://clasbc.net/  68 Online: https://womenslegalcentre.ca/  16  Development Goals (“JDGs”), which seek to create a “common framework to coordinate access to justice efforts, share innovation and measure our progress”69.  While this work is needed, one drawback to the JDG approach is that it tracks only positive access to justice efforts as those are reported by the organizations responsible for the initiatives70; it does not track civil justice reforms that may represent A2J regressions, nor does it engage in a critical analysis of how initiatives aimed at increasing A2J operate in practice.  A systemic overview that would incorporate all these elements to get a true picture of the status of civil A2J is a large and complex task.  The modern civil justice and civil A2J reform chronology that follows, and the remainder of this project, seeks to begin to fill that gap.  2.3 Chronology of Modern Civil Justice and A2J Reforms This chapter focuses on the major trends in modern civil justice and A2J reform.  Both general civil justice and A2J-targeted reforms are included, as all impact the overall direction of civil A2J.  It does not exhaustively list all reform activities, of which there are many, but rather emphasizes major government-led responses to calls for reforms to get a sense of the official appetite for change.  National initiatives are discussed on a broad level, but focus is on specific reforms in British Columbia as the dominant site of inquiry of this project.  Reforms across the country have followed a similar trajectory to British Columbia, particularly when it comes to simplifying and streamlining adjudicative procedures, though there is variability in areas such as civil legal aid funding71.  For the purposes of this project, the modern era of reform is marked as beginning with the release of the Canadian Bar Association’s Systems of Civil Justice Task Force Report (the “Task Force Report”) in August 1996, which made a number of recommendations  69 Action Committee, “Tracking Our Progress: Canada’s Justice Development Goals in 2019” at 4, online: <http://www.justicedevelopmentgoals.ca/sites/default/files/drupalexp/jollyness/images/jes-images/canadajdg_report19_en.pdf> [2019 JDG Report]. 70 Ibid at 5. 71 The CBA Access to Justice Committee details the disparity of legal aid funding across Canada in in its “Reaching Equal Justice Report: An Invitation to Envision and Act” (November 2013) at p 39 [Reaching Equal Justice]; online: https://www.cba.org/CBAMediaLibrary/cba_na/images/Equal%20Justice%20-%20Microsite/PDFs/EqualJusticeFinalReport-eng.pdf  17  that sought to modernize the civil justice system to “better meet the current and future needs of Canadians”72.  Briefly, in the decades before the Task Force report, A2J efforts were concentrated in the following major areas: (1) beginning around the 1960s, the development of mechanisms such as tribunals to increase government accountability, tools to represent “diffuse interests” like class actions and public interest litigation, the growth of legal aid, and the creation of community legal clinics; (2) then, beginning in the 1980s, a shifting focus on process and the development of alternative dispute resolution (“ADR”) options.73  Since then, the dominant trend in modern A2J reform has been a focus on court reforms and streamlining74, though there is some indication the tide is beginning to change once again, as will be discussed near the end of this chapter. Importantly, early A2J reforms are either “unfinished”75 or have suffered regressions; in other words, progress on A2J has not been a linear, upward process.  For example, defunding of civil legal aid in British Columbia has been a persistent issue since at least 1997, when austerity measures were originally introduced by the provincial government; all poverty law funding (the only form of civil legal aid in the province) was eliminated in 200276.  It is only in 2019 that poverty law funding, in the form of a $20-million investment into eight new legal clinics, was introduced again.77  As a result, modern A2J reforms do not necessarily build upon or complement prior reforms, though some earlier developments continue to enhance A2J, such as class action lawsuits.  Arguably, the shifting focus on efficiency and streamlining that will be described next is a response to  72 Canadian Bar Association, “Report of the Canadian Bar Association Task Force on Systems of Civil Justice” (1996, Ottawa: The Association) at Foreword [CBA Task Force Report]. 73 Reaching Equal Justice, supra note 71 at 60; and for a more general overview, see A2J: The Newest Wave, supra note 35. 74 Ibid, Reaching Equal Justice. 75 Ibid. 76 Jamie McLaren, QC for the Attorney General of British Columbia, Roads to Revival: An External Review of Legal Aid Service Delivery in British Columbia (2019) at 20, online: https://news.gov.bc.ca/files/Roads_to_Revival-Maclaren_Legal_Aid_Review-25FEB19.pdf [Roads to Revival]. 77 Ministry of the Attorney General of British Columbia.  “News Release: New legal clinics expand access to justice.” (November 4 2019), online: https://news.gov.bc.ca/releases/2019AG0120-002110 [BC Legal Clinic News Release]. 18  chronic underfunding of the justice system at large78 and broader trends in privatization79, both of which have major implications for the current status of civil A2J, and in particular, Equitable A2J80.  2.3.1 Procedural Shifts and Lack of Progress Turning back to tracing the trajectory of modern A2J reforms, the 1996 Task Force Report kicked off a slew of procedural and jurisdictional changes throughout Canada; it also led to the creation of the CFCJ81.  The Task Force Report itself outlined 53 recommendations meant to improve the civil justice system.82 These recommendations fell under six themes, all of which impact A2J: (1) Creating a multi-option civil justice system (mainly through diverting users to dispute resolution and settlement processes); (2) Reducing delay through court supervision of the progress of cases (e.g. through caseflow management and development of trial time standards); (3) Reducing costs and increasing access (e.g. by increasing jurisdiction of small claims courts and promoting summary trials); (4) Appellate reform (e.g., through case management), (5) Improving public understanding (e.g. public information and education); and (6) Managing the Courts of the Twenty-First Century (e.g. through technological advancements).83  As of 2006, the majority of these recommendations had been implemented in British Columbia in some form or another.84  Review of these recommendations make clear that their primary intention is to improve judicial economy and speed up the progress of cases, in  78 See, for example, Reaching Equal Justice, supra note 71 at 50 and 51.  79 For an overview of this phenomenon in the civil justice system, see Trevor Farrow, Civil Justice, Privatization, and Democracy (Toronto, Canada: University of Toronto Press, 2014) at 214, online: doi:10.3138/j.ctt6wrf6p [Privatization]. 80 As will be more fully discussed in Chapter 5. 81 About CFCJ, supra note 56. 82 Margaret Shone, “Into the Future: Civil Justice Reform in Canada 1996 to 2006 and Beyond”, Into the Future Conference (December 2006), online: http://cfcj-fcjc.org/sites/default/files/docs/2006/shone-final-en.pdf. [Into the Future Reform Summary]. 83 Ibid at 8. 84 Ibid, see generally stage 1 responses at 9-74. 19  part by providing users the option to divert to other settlement and ADR processes, such as mediation or arbitration (the “multi-option” justice system). 2006 marked the 10-year anniversary of the Task Force Report, and in that same year, the conference Into the Future: The Agenda for Civil Justice Reform, sponsored by the CFCJ, the CBA, the Association of Canadian Court Administrators (ACCA), and the Canadian Institute for the Administration of Justice (CIAJ), took stock of the progress.  The impacts of the reforms to the civil justice system were summed up in this way: Following Part I of the Into the Future conference in May of this year it was clear that the findings of the 1996 Systems of Civil Justice Task Force Report have been widely accepted, and that many of the recommendations made in that report have been implemented by various Canadian jurisdictions.  It was equally clear however that the fundamental problems described in the Report - cost, delay and complexity inhibiting access to justice - have not been resolved, and they remain for virtually all jurisdictions, serious and pressing concerns.85 By this time, the lack of progress on Civil A2J was clear, and in response, the Action Committee was convened in 2008 to provide “high profile national leadership to advance access to civil and family justice in Canada.”86  The Action Committee’s role will be described in more detail later in this chronology. Meanwhile, in British Columbia, the Civil Justice Reform Working Group (the “Working Group”) was established by the Law Society of British Columbia in November 2004 to “explore fundamental change to the BC civil justice process” with a mandate to increase accessibility, proportionality, fairness, public confidence, efficiency and justice within British Columbia’s Supreme Court87.  The Working Group’s report, Effective and Affordable Civil Justice, released in November 2006, made three overarching recommendations:  85 “Into the Future: Confirming our Common Vision” Into the Future Conference (2006), online: https://cfcj-fcjc.org/sites/default/files/docs/2006/commonvision-en.pdf  86 About the Action Committee, supra note 57. 87 Ministry of Justice and Attorney General, “Effective and Affordable Civil Justice - Report of the Civil Justice Reform Working Group to the Justice Review Task Force” (2006) at 50-51, online: https://www2.gov.bc.ca/assets/gov/law-crime-and-justice/about-bc-justice-system/justice-reform-initiatives/cjrwg_report_11_06.pdf [Effective and Affordable Civil Justice]. 20  Recommendation 1: Create a central hub to provide people with information, advice, guidance and other services they require to solve their own legal problems. Recommendation 2:  Require the parties to personally attend a case planning conference before they actively engage the system, beyond initiating or responding to a claim. Recommendation 3: Create new Supreme Court Rules.88 Recommendation 1 was developed based on the Working Group’s view that “the legal system functions more effectively if litigants receive legal advice and, particularly for those matters entering the court system, legal representation”.89  The Working Group envisioned a hub that would provide a “multidisciplinary (legal and non-legal) ‘triage’ process that would provide a ‘diagnosis’ of the problem and referral to whatever services are appropriate for the problem… includ[ing] translation services, debt counselling, mediation, facilitation, neutral evaluation, legal advice and legal representation”, and a possible clinic model to provide legal representation.90 Recommendation 2, intended to promote greater active judicial involvement in cases through an extensive and largely mandatory Case Planning Conference, resulted from the Working Group’s finding that many litigants desire “early and cost-effective resolution… an opportunity to be heard, and…want to play a key role in the resolution of their dispute”.91  The importance of avoiding protracted disputes leading to withdrawal at a late stage due to “litigation exhaustion” was also noted.92     Recommendation 3 envisioned a re-writing of the SCCR, and particularly, that the new rules be based upon “an explicit overriding objective that all proceedings are dealt with justly and pursuant to the principles of proportionality”.93  The Working Group’s concept of proportionality takes into account the value, importance and complexity of the case at each stage in the proceedings.94  A further component of Recommendation 3 included  88 Ibid at Summary of Recommendations, vii. 89 Ibid at 5. 90 Ibid. 91 Ibid at 10. 92 Ibid at 11. 93 Ibid at 18. 94 Ibid at 19. 21  revising pleadings rules to require accurate and succinct statements of facts and issues, and that would include a case management and resolution plan.  The Working Group suggested additional changes such as modifying and limiting discovery and use of experts. Effective and Affordable Justice directly influenced the re-writing of the SCCR in 2009.  However, a review of the present framework reveals that a number of the recommendations of the Working Group were not adopted.  For example, a Case Planning Conference is not a mandatory procedure before actively initiating the system,95 pleadings rules do not contain requirements with regards to dispute resolution, and a robust clinical model has not been developed as envisioned by the Working Group.   Currently, “Justice Access Centres” operate only in Nanaimo, Surrey, Vancouver and Victoria; these have some limited features of the Working Group’s ‘hub’ by providing assistance to self-represented litigants (“SRLs”) and referrals to outside legal representation or other community agencies.96  As mentioned earlier, funding for the renewal of a clinical model for civil law services did not occur until the Attorney General’s announcement of funding in 2019.97  Together, the measures implemented fall well short of the spirit of what was contemplated under Recommendation 1 of the Effective and Affordable Civil Justice report.  On the whole, the current status of civil A2J, which continues to be described as a crisis by many98, illustrates that the selective approach to adopting reform proposals made by the Working Group, combined with the earlier recommendations implemented from the Task Force Report, failed to create “fundamental change” in British Columbia’s civil justice system.   95 SCCR, supra note 16. 96 Attorney General of British Columbia, “Justice Access Centres”, online: https://www2.gov.bc.ca/gov/content/justice/about-bcs-justice-system/jac  97 BC Legal Clinics News Release, supra note 77. 98 Refer to Chapter 1: Introduction for a summary of the current status of Civil A2J. 22  2.3.2 Focus on Everyday Legal Problems – A Culture Shift? During this period of primarily procedural reform, the Action Committee was engaged in convening working groups and preparing its seminal report, A Roadmap for Change, released in October 2013.99  Before outlining a direction for A2J reform, the report sums up the impact of previous of civil and family A2J reform as follows: While there are many dedicated people trying hard to make it work and there have been many reform efforts, the system continues to lack coherent leadership, institutional structures that can design and implement change, and appropriate coordination to ensure consistent and cost effective reform. Major change is needed.100 …it is now clear that the previous approach to access to justice problems and solutions, far from succeeding, has produced our present, unsustainable situation.101   To solve this, A Roadmap for Change aimed for a “measurable and significant increase in civil and family access to justice within 5 years”102 and advocated for a “culture shift” in six key ways: (1) Put the public first (remember that the system exists to serve the public and involve them in reform efforts), (2) Collaborate and coordinate, (3) Prevent and educate on legal problems, (4) Simplify, make coherent, proportional and sustainable, (5) Take action (bridge the implementation gap), and (6) Focus on outcomes103.  Finally, part 3 of the Roadmap for Change outlines a plan for action by developing nine justice development goals, eight of which are applicable to civil justice (JDGs):  A. Innovation Goals: 1. Refocus the Justice System to Reflect and Address Everyday Legal Problems; 2. Make Essential Legal Services Available to Everyone; 3. Make Courts and Tribunals Fully Accessible Multi-Service Centres for Public Dispute Resolution; and  99 Roadmap for Change, supra note 1. 100 Ibid at 1. 101 Ibid at 6. 102 Ibid at iv. 103 Ibid at 7-8. 23  4. Make Coordinated and Appropriate Multidisciplinary Family Services Easily Accessible. B. Institutional and Structural Goals: 5. Create Local and National Access to Justice Implementation Mechanisms; 6. Promote a Sustainable, Accessible and Integrated Justice Agenda through Legal Education; and 7. Enhance the Innovation Capacity of the Civil and Family Justice System. C. Research and Funding Goals: 8. Support Access to Justice Research to Promote Evidence-Based Policy Making; and 9. Promote Coherent, Integrated and Sustained Funding Strategies.104   Progress on these goals is then tracked through annual reports on the JDGs.  For example, in the 2019 status report (the “2019 JDG Report”), the respondents asked to report on their A2J initiatives included: legal aid clinics, court administration, the judiciary, government, professional associations, law schools, funders, research, nonprofits, regulatory agencies, and more.105  The range of projects reported on is diverse.  Examples include anything from translating a simplified Charter into Innu, Cree and Inuktitut106 to the BC Court of Appeal’s Roster Program (a collaboration with Access Pro Bono to refer every self-represented litigant to a volunteer lawyer)107 to layperson Small Claims Guides108 to expanding the CRT’s jurisdiction for motor vehicle injury claims up to $50,000.109 The report summarizes that 259 projects were launched with a reach of over 5,000,000 individuals impacted.  Recent progress on JDG #8 has also included the Everyday Legal Problems report on the incidence of everyday legal problems110 and a  104 Ibid at 10. 105 Ibid at 7. 106 Ibid at 9. 107 Ibid at 16. 108 Ibid at 18. 109 Ibid at 33. 110 Everyday Legal Problems, supra note 1. 24  longitudinal study announced by CFCJ that seeks to measure the impact of different types of legal service interventions on civil justice outcomes.111 In the same year, the CBA released its own Reaching Equal Justice report112, which focuses on many of the same issues, but with particular emphasis on the discussion surrounding the underfunding of the civil justice system and legal aid, and highlights the need to increase service levels.113  2.3.3 BC Reforms After the ‘Culture Shift’ Since the Action Committee’s Roadmap for Change and the CBA’s Reaching Equal Justice report, British Columbia has continued to undertake structural civil justice reforms.  For example, the Attorney General announced in 2017 that most claims up $5,000 would no longer be under the jurisdiction of Small Claims Provincial Court, but rather a new online Civil Resolution Tribunal (the “CRT”), designed to create a flexible and informal resolution of civil disputes.114  The CRT was the first online tribunal in Canada and promises to “bring the justice system to the public” through a user-friendly online-only interface that takes a litigant through escalating stages from diagnosis to negotiation to adjudication; other than for motor vehicle accident claims, it does not allow legal representation by default.115  At the same time, Small Claims jurisdiction in Provincial Court was increased from $25,000 to $35,000.116  Compared to the British Columbia Supreme Court, these forums have relaxed evidentiary rules and are intended to be  111 Canadian Forum on Civil and Family Justice, “Measuring the Impact of Legal Service Interventions project (2019-2020)”, online: https://cfcj-fcjc.org/our-projects/measuring-legal-service-interventions/ [Legal Service Interventions]. 112 Reaching Equal Justice, supra note 71. 113 Ibid at pages 34-58. 114 Provincial Court of British Columbia, “Important changes to Small Claims Court” (2017), online: http://provincialcourt.bc.ca/enews/enews-20-03-2017; at the time of writing, the CRT has jurisdiction over the following: motor vehicle injury claims up to $50,000, small claims disputes up to $5,000, strata disputes of any amount, and societies and cooperative associations disputes of any amount. 115 See s. 20.1 of the CRT Act, supra note 19; and see generally the Civil Resolution Tribunal website, which describes various CRT processes and rules, online: https://civilresolutionbc.ca/ 116 Provincial Court of British Columbia, “Important changes to Small Claims Court” (2017), online: http://provincialcourt.bc.ca/enews/enews-20-03-2017. 25  easier for a layperson to navigate; however, they also have less robust fact-finding mechanisms by eliminating litigation stages such as discovery processes.117 While not explicitly targeted as an A2J reform, another major development in British Columbia’s civil justice system accompanies legislative reforms responding to financial difficulties faced by ICBC.118  As of April 1, 2019, the CRT was granted exclusive jurisdiction to determine whether an injury arising from a motor vehicle accident is designated as “minor”, which results in a statutory cap on non-pecuniary damages at $5,500; it also has jurisdiction over all motor vehicle accident claims under the tribunal limit amount prescribed by s. 133(2)(b) of the Civil Resolution Tribunal Act119 (currently, $50,000).120   Decisions made by the CRT can only be challenged in BC Supreme Court through the limited avenue of judicial review.  Voell (2019) has remarked that the narrow standard of review (which in certain circumstances, such as minor injury determinations, is deemed to be patent unreasonableness by the Civil Resolution Tribunal Act) created in concert with these changes “swim against the tide” of administrative law and its current trend towards a simpler, more flexible, and more contextual approach to judicial review.121  For example, the Supreme Court of Canada’s decision in Dunsmuir eliminated the patent unreasonableness standard for non-statutory standards of review.122 This change is not without controversy.  The Trial Lawyers Association of British Columbia have launched a constitutional challenge to the regulatory changes to the  117 See, for example, Small Claims BC, “Court Process Overview”, online: http://www.smallclaimsbc.ca/small-claims-court-5001-35000/court-process-overview  118 Ernst & Young, “ICBC: Affordable and effective auto insurance – A new road forward for British Columbia” (July 2017), online: https://www.icbc.com/about-icbc/company-info/Documents/Affordable-and-Effective-AutoInsurance-Report.pdf. 119 CRT Act, supra note 19. 120 TLABC Notice of Claim, supra note 26; pursuant to section 20.1 of the Civil Resolution Tribunal Act, parties can be represented by lawyers for “accident claims”, which differs from the general rule at the CRT that requires individuals to be self-represented. 121 Matthew Voell, "Swimming Against the Tide: Standards of Review and the British Columbia Civil Resolution Tribunal" (2019) 31:3 Canadian Journal of Administrative Law & Practice 207 at 210-214. 122 Ibid. 26  Insurance (Vehicle) Act123, and the CRT Act124, arguing that the changes violate the rights of British Columbians and unconstitutionally limit access to justice to the superior court by creating layers of litigation and undue hardship for claimants.125  Since then, the Attorney General has announced a shift to no-fault or care-based insurance system that will come into effect in May 2021, where all challenges to ICBC decisions about care and recovery will be adjudicated by the CRT.126   This is where one shortcoming of the Action Committee’s JDG approach comes into harsh relief: while, in the 2019 JDG report, the increase in the CRT’s jurisdiction over motor vehicle claims is marked as an A2J-promoting initiative, there is major controversy over whether it actually increases A2J.  There are elements of the change in jurisdiction that may actually work against A2J, such as limiting the adjudicative options and potential recovery of accident victims in an area where contingency fee agreements meant that many plaintiffs had access to quality legal representation, and in creating barriers to challenging CRT decisions in superior court.127  Most recently, in 2019, the Attorney General of British Columbia announced that the province will open eight new legal clinics as part of a $20-million investment to improve access to justice that will focus on issues of poverty, housing, immigration and disability law. 128  The decision was based upon an external review of Legal Aid service delivery in British Columbia that sought to “review the effectiveness and efficiencies of legal aid…. from the perspective of British Columbians who use legal aid services”.129  Grants of up to $250,000 each are administered by the Law Foundation of British Columbia, and some  123 RSBC 1996, c 231. 124 SBC 2012, c 25. 125 Trial Lawyers Association of British Columbia and Jane Doe, Notice of Civil Claim filed April 01, 2019, Vancouver Registry S-193931 [TLABC Notice of Claim]. 126 Government of British Columbia, “Better benefits, lower rate: Moving to a care-based insurance model” (February 2020) at 18, online: https://www2.gov.bc.ca/assets/gov/british-columbians-our-governments/organizational-structure/crown-corporations/enhanced-care-coverage-intentions-paper.pdf  127 TLABC Notice of Claim, supra note 26. 128 Ministry of the Attorney General of British Columbia.  “News Release: New legal clinics expand access to justice.” (November 4 2019), online: https://news.gov.bc.ca/releases/2019AG0120-002110 [BC Legal Clinic News Release]   129 Roads to Revival, supra note 14 at iii. 27  of the clinics are up and running at the time of writing, such as one housed in the Tenant Resource and Advisory Centre in Vancouver130.  Finally, modernized arbitration legislation has recently come into force, meant to improve “access to justice through out-of-court options”; according to Farrow (2014), diverting users to arbitration is also a way to privatize civil justice and reduce the cost of the administration of justice to the state131.    2.3.4 Dominant Trends in Modern A2J and Civil Justice Reform What the foregoing chronology shows is that pleas to “modernize” and “meet needs… of Canadians” (1996), to “explore fundamental change” (2006), and to create “major change” (2013) have persisted for nearly 25 years with little clear evidence that the situation has meaningfully improved; in the 2020 Rule of Law Index, Canada continued to underperform many other ‘high income’ countries, ranking 19 out of 37 on civil access to justice.132  Despite repeated failures and lack of implementation of key reform recommendations, primarily concerning areas that would require higher levels of direct government investment (such as the provision of legal aid programs), reform narratives continue to point to what changes are needed in the future rather than undertaking a searching examination of why previous reform recommendations have not been adopted or have had meagre impacts for low and middle income users.  This remains the case despite explicit acknowledgement by the Action Committee (and, by extension, the broad cross section of legal stakeholders involved in its activities) that the previous strategy was ineffective. In British Columbia, the dominant reform approach of government has been to streamline and simplify processes and to increase jurisdiction of simplified adjudicative bodies like the Provincial Small Claims Court and the CRT based on untested assumptions about efficient, speedy and proportionate justice.  In particular, in concert with changes to ICBC, the jurisdiction of the CRT has rapidly expanded in an attempt to  130 BC Legal Clinic News Release, supra note 52. 131 Attorney General of British Columbia, “Modernized arbitration legislation comes into force” (September 2020), online: https://news.gov.bc.ca/releases/2020AG0055-001617; Privatization, supra note 79 at 154. 132 Rule of Law Index (2020), supra note 8. 28  reduce litigation costs133.  This has been done without widespread investment into affordable or subsidized legal services (either through full representation or more limited forms of legal assistance) that would help low and middle income Canadians navigate civil justice processes of any type.  It is only in 2019 that increased funding for civil legal aid through investment in poverty law services was announced after being eliminated in 2002.134   It has been acknowledged that a process and efficiency-based approach, in isolation, has not worked to increase civil A2J for low and middle income Canadians to any significant measure.  Many of those procedural and jurisdictional changes were made based on the rationale that they would increase speed, efficiency and ease of use, and yet, the question of why this approach did not gain traction for those who face civil A2J has not been directly asked.  The same can be said of the Task Force Report’s aim of a “multi-option” justice system that aims to provide out-of-court options.  The overall systemic impacts of those reforms have also not been meaningfully investigated.  An important question in this respect, that will be explored in Chapters 4 and 5, is: if low and middle income Canadians did not benefit from modern A2J reforms, then who did?  2.4 Conclusion The primary result of recent reforms has been greater stratification of general civil claims with jurisdiction divided along the monetary value of claims, with this trend continuing, at least in British Columbia135.  An under-appreciated aspect of this phenomenon is the fact that the value of a claim dictates the type of Substantive A2J that is achieved as different forums have very different procedural rules that influence the development of a legal dispute.  More particularly, and more importantly for the A2J debate, a major unanswered question is how each of these increasingly streamlined  133 For greater context, see Price Waterhouse Coopers, “Operational Review of ICBC” (January 2018), online: https://www2.gov.bc.ca/assets/gov/british-columbians-our-governments/organizational-structure/crown-corporations/pwc-review-icbc-jan-2018.pdf  134 supra notes 76 and 77. 135 See, in particular, expanding jurisdiction of the CRT. 29  forums impact different types of users with greater and lesser levels of legal resources and bargaining power.  The ‘culture shift’ advocated by the Action Committee, and in particular the call to involve the public in reform activities and to remember that the civil justice system exists to serve and meet the legal needs of the public, is an important element of meaningful civil A2J reform.  However, it cannot be denied that the civil justice system is a complex set of institutions that has evolved over our history, is a system that has historically benefitted those with the private means to access it to the exclusion of most others, and that the knowledge and experience held by legal stakeholders is an integral part of how the civil justice system continues to run and operate.  It would be a mistake to think that we can easily extricate ourselves from this history and achieve an ‘expansive vision’ of A2J by only looking forward. To this end, the shared knowledge of legal stakeholders ought to be used to evaluate the effectiveness of modern civil justice reforms to ensure that the mistakes of the past are not repeated and that future reforms are properly tailored and evidence-based in pursuit of Equitable A2J.    Though empirical research on the civil justice system has been increasing in recent years on areas including the incidence of legal problems and the effects of legal representation, the impact and implications of the structural procedural and jurisdictional reforms undertaken in past decades remains unclear and largely ignored.  Some questions that remain unaddressed about the underlying assumptions that drove prior reforms include: 1. Are reforms focusing on streamlining, simplification and efficiency of civil justice processes aligned with the requirements of Substantive A2J136?; 2. In particular, is the assumption that the monetary value of claims is associated with the underlying legal complexity and importance of claims correct; otherwise stated, are procedures in fact proportionate, and from whose perspective?;  136 AIC v Fischer, supra note 42 at para 24.  30  3. Can unrepresented people meaningfully access, navigate, and achieve just outcomes from simplified procedures such as Summary Trials, the CRT and Small Claims court?; 4. If low and moderate income people have not benefitted from modern civil justice reforms, have higher income users gained any increased efficiencies?  If so, how and why has this occurred?; and, 5. What are the impacts on the evolution of the common law and the ‘shadow of the law’137 on a stratified system of civil justice that imposes barriers on superior court adjudication for those with lower value claims, given that the superior court’s influence and primacy will remain given our modern system of precedent and the constitutional protection of s. 96 of the Constitution Act, 1867138? After reviewing the status of civil A2J developments in the courts in the next chapter, the rest of this project will be concerned with beginning the process of uncovering the systemic impacts and unintended consequences of modern A2J and civil justice reforms, will seek to provide answers to some of these questions, and will make the case for why these structural concerns have caused unintended harm to the legitimacy of the civil justice system and the status of Equitable A2J.     137 See Chapter 1 for a definition of this term, which is said to influence the ability to successfully navigate the law outside of formal justice processes. 138 See supra note 23. 31  Chapter 3: Judicial Treatment of A2J 3.1 Introduction Court decisions shape the Civil A2J landscape in many ways.  For example, this chapter looks at interpretation of s. 96 of the Constitution Act, 1867139 in protecting the inherent jurisdiction of superior courts140.  Section 96 provides that “The Governor General shall appoint the Judges of the Superior, District, and County Courts in each Province, except those of the Courts of Probate in Nova Scotia and New Brunswick”.  Over time, courts have interpreted this as requiring a “unified judicial presence” of superior courts throughout the country.  This provides some constitutional guarantee that a member of the public will be able to engage one of these courts to have their public or private disputes resolved, which has obvious implications in the A2J debate.  For example, section 96 is often at odds with provincial government action (pursuant to the s. 92(14) of the Constitution Act, 1867 power over the administration of justice) that, as outlined in the preceding chapter, is often concerned with shifting disputes away from superior court in the name of efficiency.  In practice, we will see that guaranteeing constitutionally-protected access to superior courts in an effective and substantive way has been a challenge for the courts, who are unwilling to recognize the scope of social action required to effect the kind of access that would promote Equitable A2J and increase the rule of law. More generally, courts are also engaged in interpreting legislation that purports to increase access to justice.  Though the conception of constitutional and legislative A2J is generally narrower than reform-oriented perspectives, the feedback loop between the legislature and judicial branch serves to guide the direction of civil A2J and provides some mechanism for political and legislative accountability.  Furthermore, judicial attitudes  139 Constitution Act, 1867, 30 & 31 Vict, c 3. 140 Refer to Chapter 1 for an explanation of what superior courts are and their place in the civil justice system. 32  towards civil A2J inform the debate in other, less direct ways, with judges named to sit on working groups, committees, and otherwise participating in discourse.141   The courts have made a number of pronouncements about A2J in recent years illuminating their conception of what A2J does and does not include, and, more particularly, the scope of the courts’ responsibility over A2J.  The most salient principles, as outlined by the British Columbia courts and the Supreme Court of Canada in civil cases, are summarized below.  They are divided in this chapter into four major categories of legal development in A2J.  The first category details the state of Constitutional A2J (e.g. A2J rights that are granted and protected by the constitution) before the Supreme Court of Canada’s decision in Trial Lawyers Association (2014)142; this period of jurisprudential development was expansive in its pronouncements but abstract in its practical effects.  The second phase of development was the Supreme Court of Canada’s decision in TLA (2014) and how it developed the law on Constitutional A2J in a limited but meaningful way.  The third concerns the faster pace of development in A2J jurisprudence since TLA (2014).  The final category describes other powerful but under-used procedural and inherent jurisdictional beyond the framework in TLA(2014) available to superior courts to promote more Equitable A2J. As will be seen, the courts often show an understanding of the importance of procedure in A2J and connect the rule of law to various A2J barriers.  The Supreme Court of Canada, in particular, has drawn connections between the rule of law, the ostensible purpose of procedural rules in controlling how the courts are accessed, and the arbitrary or harmful nature of those rules when applied to those users who experience significant A2J challenges. However, there is a reluctance to constitutionally-mandate guarantees of accessibility, particularly without robust expert evidence, which itself is inaccessible for an impecunious or otherwise legally disadvantaged litigant.  The courts further fail to consistently take strong enough action on a principled basis – either through constitutional  141 For example, involvement of the former Chief Justice of Canada Beverley McLachlin on the Action Committee on Civil & Family Justice, and attendances at A2J conferences by members of the judiciary. 142 2014 SCC 59 [TLA (2014)]. 33  mandate or inherent jurisdiction deriving from s. 96 – that would redress inequities created by the application of facially-neutral procedural rules. 3.2 Constitutional A2J Before TLA (2014) The Supreme Court of Canada in B.C.G.E.U. v. British Columbia (Attorney General) 143, is the first Canadian decision linking the rule of law and A2J and made some sweeping statements about the importance of access to the courts.  While the decision was decided in the context of physical access to the courts of justice in British Columbia (such access was blocked by BC Government Employee Union picketers144), the judiciary’s perspective on the relationship between court access and Charter rights is an acknowledgement of the importance of the ability to vindicate rights and uphold the rule of law through court adjudication. The Court framed the case by squaring off two competing Charter principles: (1) the rule of law, affirmed by the preamble of the Charter, which reads: “Whereas Canada is founded upon principles that recognize the supremacy of God and the rule of law” and (2) the individual rights enumerated and protected by the Charter, where the picketing at issue engaged freedom of expression (section 2(b)).145  Then Chief Justice Dickson, writing for the majority, had this to say in a pithy statement on the rule of law as an overarching principle:146  [24] Of what value are the rights and freedoms guaranteed by the Charter if a person is denied or delayed access to a court of competent jurisdiction in order to vindicate them? How can the courts independently maintain the rule of law and effectively discharge the duties imposed by the Charter if court access is hindered, impeded or denied? The Charter protections would become merely illusory, the entire Charter undermined…  [25] There cannot be rule of law without access, otherwise the rule of law is replaced by a rule of men and women who decide who shall and who shall not have access to justice.  143 1988 CanLII 3 (SCC), [1988] 2 SCR 214 [B.C.G.E.U.]; For another summary of B.C.G.E.U. and other Constitutional A2J decisions, see Andrea A Cole and Michelle Flaherty, “Access to Justice Looking for a Constitutional Home: Implications for the Administrative Legal System” (2016) 94-1 Canadian Bar Review 14, 13 at 23. 144 Ibid, B.C.G.E.U. at para 2. 145 Ibid at para 24. 146 Ibid at paras 24-25 34   The Court first found that removal of picketers would have the effect of limiting their freedom of expression (s. 2(b)).  The Court then proceeded to dispose of B.C.G.E.U’s Charter argument by applying a section 1 analysis to determine whether the limitation was justified in removing the picketers, finding that: “the task of striking a balance is not difficult because without the public right to have absolute, free and unrestricted access to the courts the individual and private right to freedom of expression would be lost. The greater public interest must be considered when determining the degree of protection to be accorded to individual interests.”147 The interpretive framework used in B.C.G.E.U. has gained little traction in subsequent cases on barriers to A2J, with the courts eventually turning to section 96 of the Constitution Act, 1867 to narrow the A2J and rule of law analysis, as will be explained below.  However, the decision highlights an unavoidable point: legal protections become “illusory… undermined” when access is “hindered, impeded or denied”.148  In contemporary A2J debates, we now speak of Substantive A2J, which recognizes a much broader array of barriers to effective court adjudication149, and ones which this thesis argues are differentially experienced by a variety of social classes and groups.  Following the logic in B.C.G.E.U., if barriers materially affect access or outcomes, then the private rights afforded to all of us on paper become illusory for many.  Subsequent A2J cases, as outlined below, illustrate the courts’ evolving but slow and often inconsistent actions to protect the rule of law in the face of significant and kaleidoscopic barriers to justice. The Court of Appeal in John Carten Personal Law Corp. v. British Columbia (Attorney General) (1997)150 considered a challenge to the 7% tax on legal services enacted through the Social Service Tax Amendment Act, SBC 1993, c 69, which replaced an  147 Ibid para 67. 148 Ibid at para 24. 149 See generally the evolving work of the Action Committee on Civil and Family Justice, and analysis on A2J barriers undertaken in other chapters. 150  1997 CanLII 2008 (BC CA), 153 D.L.R. (4th) 460 (B.C.C.A.), 40 B.C.L.R. (3d) 181 (application for leave to appeal dismissed, [1998] S.C.C.A. No. 205) [John Carten]. 35  earlier version of the legislation found to be unconstitutional due to vagueness.151  The ostensible purpose of the tax, which is still in place in British Columbia and is not charged for other types of professional services, was to fund legal aid or other access to justice initiatives, though many of the proceeds have apparently been diverted from this purpose.152 A lawyer, Mr. Carten, challenged the tax based on eight different arguments relating to the practice of law and access to justice, including claims that the tax violated various sections of the Charter (sections 10(b), 7, 15, and 11(d)).153  The majority opinion of the Court of Appeal characterized his arguments as relating to “the right of a citizen to have access to the courts and possibly also to other legal services required for the just and orderly functioning of our society”.154 As in B.C.G.E.U., the majority, written by Mr. Justice Lambert, makes sweeping statements about the right to access to justice: [9]  I consider that everyone in Canada has a right to come to court and seek the help of the court in obtaining a resolution of the legal issues that have given rise to that person's problem.  Everyone in Canada has a right to seek the protection of the court from any perceived oppression by the state.  Everyone being prosecuted in our courts has the right to counsel and the right to make full answer and defence.  And I consider that our social system and our system of government depend not only on our rights relating to dispute resolution, in courts and otherwise, but also on our rights relating to dispute prevention through a legal system which regulates succession to property, family law, and other areas of potential disharmony.  Despite these statements, where the Court indicates the importance of broad access, the majority then promptly disposes of Mr. Carten’s arguments on an evidentiary basis, due to a “lack of proof that rights of access to the courts, to justice, or to legal services, have been denied because of this 7 per-cent tax…”155  They then say that to find the tax  151 Ibid at paras 2-3; the 1992 legislation was struck down in Canadian Bar Assn. v. British Columbia (1993), 101 D.L.R. (4th) 410; another challenge to the 1993 amended tax based on the argument that the tax was an unconstitutional indirect one failed in Canadian Bar Association v. British Columbia (1994), 91 B.C.L.R. (2s) 207 (B.C.S.C.). 152 Ian Mulgrew, “Legal tax is the elephant in legal aid debate” (Nov 9, 2018), Vancouver Sun, online: https://vancouversun.com/news/politics/ian-mulgrew-legal-tax-is-the-elephant-in-legal-aid-debate  153 John Carten, supra note 150 at para 4. 154 Ibid at para 8. 155 Ibid at para 12. 36  unconstitutional either as a whole or in a particular case requires proof “that people, or a class of people, in general, or some person in particular… was prevented from exercising” the legal rights in question and that it would not be enough to show that it was merely “an impediment or a discouragement”.156   Chief Justice McEachern approached his dissent on a wider basis, by relating the challenge to the broader promises of the rule of law and the Charter, which he acknowledged effectively requires counsel for vindication.157  He found it unnecessary to require proof of specific instances of the tax’s effect on access to justice, because it was “obvious that even an extra 7% charge on legal fees will impede justice at some levels” in a province where legal fees were already high.158 After tracing the development of the rule of law as foundational to the English and Canadian constitutions159, Chief Justice McEachern held that “Physical or de facto access is surely not enough.  To withstand Charter scrutiny, access to courts of justice must be effective access, which in practical terms means access to counsel” (here, he focuses on Charter rights and remedies – though he notes that in contemporary society, even ordinary litigation is increasingly difficult without a lawyer).160  In finding the tax unconstitutional as it applied to constitutional rights and protections, then Chief Justice McEachern says in closing: [91] …A much larger tax might not impair access to wealthy citizens, corporations or well funded interest groups.  A moderate tax might not actually prevent access to our economic middle classes but every burden hinders access and makes it more difficult.  To our poor citizens who may be assumed to need the protection of the Charter the most, any tax is calculated by its very nature to impair access to or protection of Charter rights and values.  The majority’s opinion in John Carten, as recognized by then Chief Justice MacEachern, misses the mark on how barriers to A2J function in the real world.  The decision creates an unworkable evidentiary burden.  A single potential barrier or cost, like  156 Ibid at para 13. 157 Ibid at para 32. 158 Ibid at para 34. 159 Ibid at paras 57-66. 160 Ibid at paras 76 and 82. 37  the 7% tax at issue, does not operate in a vacuum; it interacts with a web of other barriers until litigants do not pursue litigation at all or enter the court system without the tools and resources to meaningfully pursue a claim – they lack MacEachern’s “effective access”.  It is a rare situation where one single cost is the culprit. The court accordingly asks disaffected people to come and prove (through a high threshold) that access is precluded by a single identifiable cause in that very same venue where they face such significant challenges in an unfortunate catch-22.  Though the courts’ thinking on how barriers operate has evolved since John Carten, culminating in TLA (2014) (analyzed in the following section), evidentiary issues persist as a major impediment in access to justice litigation, as will be detailed throughout this chapter. British Columbia (Attorney General) v. Christie involved another challenge to the 7% tax on legal services, this time through the Social Service Tax Amendment Act (No. 2), 1993, SBC 1993, c 24.161  That legislation was constitutionally challenged on the basis that it restricted access to the courts by compromising access to counsel for low-income individuals.162  The respondent’s claim was framed by the Court as an argument that there existed a general right to access to justice via “access aided by a lawyer where rights and obligations are at stake before a court or tribunal”.163 In rejecting the claim and upholding the tax, the Supreme Court of Canada found that imposing a constitutional right to counsel would essentially mandate state-funded legal services (the cost of which was not tendered as evidence in trial) and would have substantial fiscal implications for taxpayers.164  Furthermore, the legislature had the power to pass laws in relation to the administration of justice in the province under s. 92(14) of the Constitution Act, 1867, including to impose at least some conditions on how and when people have a right to access the courts.165 The Supreme Court of Canada linked the right to access the courts with the rule of law, “a fundamental postulate of our constitutional structure” located in preamble of  161 British Columbia (Attorney General) v. Christie, 2007 SCC 21 [Christie] at para 1. 162 Ibid at para 5. 163 Ibid at para 10. 164 Ibid at para 14. 165 Ibid at para 17. 38  Constitution Act, 1982 and implicit in s. 1 of the Charter where rights and freedoms are “subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society”.166  The Court then proceeded to enumerate some components of the rule of law: that (1) “law is supreme over officials of the government as well as private individuals, and thereby preclusive of the influence of arbitrary power”, (2) “requires the creation and maintenance of an actual order of positive laws which preserves and embodies the more general principle of normative order”, and (3) “the relationship between the state and the individual . . . be regulated by law”.167   Following this, the Court had this to say about the relationship between the rule of law and access to counsel:168 [23] The issue, however, is whether general access to legal services in relation to court and tribunal proceedings dealing with rights and obligations is a fundamental aspect of the rule of law.  In our view, it is not.  Access to legal services is fundamentally important in any free and democratic society.  In some cases, it has been found essential to due process and a fair trial.  But a review of the constitutional text, the jurisprudence and the history of the concept does not support the respondent’s contention that there is a broad general right to legal counsel as an aspect of, or precondition to, the rule of law.  In obiter, the Court commented on evidentiary issues, agreeing with the Attorney General that “the economics of legal services may be affected by a complex array of factors, suggesting the need for expert evidence to establish that the tax will in fact adversely affect access to justice”.169  It was stressed that constitutional cases require an “adequate evidentiary record”.170   Ultimately, in the Court’s view, general access to legal counsel was viewed as a normative ideal and not a constitutional imperative.  While the Supreme Court of Canada recognized that the right to counsel might be justified in “specific and varied situations”171, the Court did not elaborate on the types of circumstances that might warrant a  166 Ibid at para 19. 167 Ibid at para 20. 168 Ibid at paras 23 and 27. 169 Ibid at para 28. 170 Ibid at para 28. 171 Ibid at para 27. 39  constitutional right to access, other than setting a high evidentiary burden, leaving little guidance for future claimants.  In effect, this pushes a higher onus on individual claimants to establish access to counsel rights. In the years following the Christie case, the right to counsel has not been successfully argued in any reported civil172 or family173 decisions in British Columbia, although one case challenging British Columbia’s family law legal aid regime on the basis of section 96 of the Constitution Act, 1867, is underway.174  Though there are good reasons to require a solid factual foundation to make important determinations about constitutional rights, the courts – and the civil justice system in general – provides little help to claimants without funds or access to counsel in developing such a record, nor does it provide direct funding for things like expert reports.  This may be one reason why right to counsel cases have had little success.   It is also difficult to demonstrate to what degree the lack of counsel impacts a litigants’ chances in court without systemic data, which makes it easier to justify the argument that legal counsel is not essential for most civil claims.  However, it is hard to deny that lack of counsel impacts the balance of power in an adversarial process when the party on the other side has access to a lawyer, which most certainly implicates the rule of law and raises serious questions about whether vindication of rights is influenced by “arbitrary power” such as the inequality in legal resources between litigants.  Cases where there exists unequal bargaining power combined with legal complexity might be one area where access to counsel arguments could gain traction. The constitutional dimension of access to justice is limited in other important ways.  Pavlis v. HSBC Bank Canada, 2009 BCCA 450 [Pavlis], provides one example.  It concerned an underlying action for constructive dismissal and negligence.175  Ms. Pavlis,  172 For an example of unsuccessful arguments, see Canadian Bar Assn. v. British Columbia, 2008 BCCA 92; British Columbia (Director of Civil Forfeiture) v. Fischer, 2010 BCSC 568 (which confirmed that a private dispute cannot support a s. 7 argument for access to counsel); Sahyoun v. Ho, 2011 BCSC 567 173 See P.D. v. British Columbia, 2010 BCSC 290 174 See, for context, Single Mothers’ Alliance of BC Society v British Columbia, 2019 BCSC 1427, which concerned an unsuccessful application to strike pleadings. 175 Pavlis v. HSBC Bank Canada, 2009 BCCA 450 [Pavlis] at para 1. 40  who represented herself in court, sought to appeal and was granted indigent status176, then brought an application to have her appeal transcripts paid for by the Supreme Court on the basis of her indigency.177   Rule 20(1) of the Court of Appeal Rules, BC Reg 297/2001, mandates that appellants obtain and file transcripts for trials involving oral testimony.  Ms. Pavlis had estimated that the cost of the transcripts would be in the range of $15,000.178  The chambers judge denied her application, finding that the Court had no jurisdiction to make such an order, and that “indigent status does not relieve a party from the costs of putting together his or her appeal materials.”179 Ms. Pavlis argued her application on the basis of ss. 7 and 15 of the Charter.  Throughout the judgment, it is apparent that her knowledge of Charter rights is limited, and her argument is not framed in the way a constitutional rights lawyer would present her claim.  The Court of Appeal paraphrased her section 15 argument as follows:  As I understand Ms. Pavlis’ argument regarding s. 15 of the Charter, it is that the requirement that she provide the Court with transcripts in accordance with R. 20(1) infringes her right to equality before the law because as a disabled and indigent person, she does not have the same opportunity to exercise her right of appeal as does an able-bodied person of means.180      And in disposing of her argument, the Court relies on Christie: As for the necessity of paying for transcripts, persons who are in the business of providing transcribing services require payment for their services as a matter of contract rather than any statutory provision.  There is no authority in Canada supporting a general right to access to justice (see British Columbia (Attorney General) v. Christie 2007 SCC 21, [2007] 1 S.C.R. 873) that might extend to transcripts, and in my view, there is no basis for Ms. Pavlis’ argument that R. 20(1) engages her right to the equal protection and equal benefit of the law.     176 Prior to TLA (2014), supra note 142, which created the “undue hardship” threshold for exemptions to hearing fees, a finding of indigent status exempted a litigant from the payment of hearing fees for trials. 177 Pavlis, supra note 175 at para 1. 178 Ibid at para 6. 179 Ibid at para 15. 180 Ibid at para 7. 41  Ms. Pavlis’ s. 7 argument was also dismissed on the basis that section 7, as established through a long line of cases, does not protect economic or property interests, which, to the Court, included the ability to pursue a civil appeal.  The significance of this case within the constitutional A2J landscape will be discussed at the end of this subsection. In a similar case, Allart v. Alec’s Automotive Machine Shop (2003) Ltd.181, the Court denied Ms. Allart’s claim that it was unconstitutional to require an appellant to pay for transcripts which are mandatorily required to pursue an appeal182.  Unlike Pavlis, the case concerned an appeal from Provincial Court Small Claims to the Supreme Court.183   Ms. Allart, who had been granted impoverished status under Rule 20-5 of the Supreme Court Civil Rules and relied entirely on disability benefits for income184,  tendered evidence that transcript preparation for an 80-minute hearing would be $450-500.185  She made the argument that “Transcript fees are the same as trial fees except preparation has been contracted out to a private company”186 and that failing to provide an exemption for the impoverished offended the right to access promised in the B.C.G.E.U. decision187. Following the comments in Christie, The Court rejected Ms. Allart’s arguments primarily on the basis that there were “insufficient adjudicative and legislative facts before the Court to adequately assess whether the requirement to provide a transcript precludes access to justice because of the cost associated with its preparation”188.  While the evidence that she had limited financial resources was not questioned, there was “no evidence of the efforts she… made to obtain funding… through other public and private  181 2014 BCSC 476 [Allart BCSC]. 182 ibid at para 1; transcripts are required by Rule 18-3(3) of the SCCR. 183 The Court did not have the benefit of the reasons in TLA (2014), supra note 142, reviewed later in this chapter, and which established the s. 96 framework for access to justice questions and the threshold of “undue hardship”. 184 Allart BCSC, supra note 181 at para 5; this exempted her from paying court filing fees in connection with her appeal. 185 Ibid at para 8. 186 Ibid at para 14. 187 Ibid at para 12. 188 Ibid at para 25. 42  sources”, and in particular, it was unclear whether Ms. Allart was eligible for Access Pro Bono’s disbursement fund.189   In obiter, the Court did note Canada’s efforts to address civil access to justice concerns, placing the onus on the legislature: “Ms. Allart’s application identifies one area that could be addressed by the Provincial government as a means of precluding a denial of justice to persons with meritorious cases. I urge the government to investigate ways in which the cost of appeal transcripts could be offset where the circumstances warrant such extraordinary measures.”190 On an application to the Court of Appeal for an extension of time to appeal191, Ms. Allart argued that the Supreme Court judge had “required her to address questions that an indigent person could not possibly address” regarding the systemic effect of the costs of transcripts and that it was an error to require her to have “exhausted her remedies by seeking private or public funding”.192  In finding that the appeal was bound to fail, the Court of Appeal noted that the precedent in Pavlis presented an obstacle, and that overturning the lower court’s finding of an inadequate evidentiary basis for a constitutional challenge created an “insurmountable burden” for Ms. Allart to overcome.193 The Courts in Allart and Pavlis did not have the benefit of the s. 96 access to justice framework set out in Trial Lawyers Association (2014), summarized below.  Arguably, that finding – and the new threshold of “undue hardship” it created -- opens up the possibility that a new challenge to requiring appellants to pay for transcripts for appeals to the Supreme Court of British Columbia or the Court of Appeal without any possibility of exemption could be made under the right factual circumstances.  This opportunity may exist as the courts decided Allart primarily on evidentiary grounds, and as they not did squarely address Ms. Allart’s argument that contracted-out transcription fees are not meaningfully different from hearing fees given that ordering a transcript is mandated by the Supreme Court and Court of Appeal’s procedural rules.    189 Ibid at para 25. 190 Ibid at para 33. 191 Allart v Alec’s Automotive Machine Shop (2003) Ltd., 2014 BCCA 242 [Allart BCCA]. 192 Ibid at para 15. 193 Ibid at para 25. 43  Even with the advancements in the law since Allart was decided, the finding in Allart highlights a persisting problem in access to justice litigation: it provides a snapshot of the heavy burden faced by legally disadvantaged claimants who lack the funds and resources to meaningfully engage the court to make the very claims that would assist in this engagement.  Constitutional and Charter litigation is notoriously expensive and complex194, and the courts have consistently noted that expert evidence is all but required when making any kind of systemic claim that would simplify the burden for other potential claimants195.  Pavlis and Allart both involved claimants who had already been granted indigent/impoverished status by the court – an official recognition of socioeconomic disadvantage -- with the court in Allart being explicit that even an impecunious litigant must exhaust all options for funding, including the few and overburdened low income legal clinics operating in the province196, despite the myriad of barriers these individuals already face in engaging with the civil justice system. More generally, the Pavlis and Allart cases showcase a number of limitations in pursuing A2J rights recognition through litigation.  First, despite the courts’ broad proclamations about the importance of the rule of law, the idea that it is a general enforceable right was denied in Christie.  More recently, there is the inherent limitation of s. 96, into which more recent jurisprudence has shoe-horned constitutional A2J recognition (see TLA (2014) and J. Cote & Son Excavating Ltd. V. Burnaby (City), 2019 BCCA 168, analyzed in the following subsections), and which applies only to accessing superior courts.   Pavlis and Allart make clear that the intertwining of the rule of law and A2J, as argued in B.C.G.E.U. and rejected in Christie, is no longer a viable argument for compelling the government to increase accessibility.  The Court’s reluctance to turn the constitution’s explicit incorporation of the rule of law into something more substantive is an implicit acknowledgement that truly providing Equitable A2J – a precondition to the robust rule of  194 Department of Justice Canada, “The Costs of Charter Litigation”, online: https://www.justice.gc.ca/eng/rp-pr/jr/ccl-clc/p1.html [Costs of Charter Litigation]. 195 See Christie, supra note 161, reviewed above. 196 See the qualitative findings in Chapter 5 for examples of resource shortages that these clinics face. 44  law – would require heavy judicial intervention, systemic change, and far greater governmental buy-in and investment.  Lastly, the ease in which privatization shields the civil justice system from the imperative to provide equitable access is apparent.  While the Supreme Court Civil Rules and the Court of Appeal Rules require that an appellant order transcripts of oral testimony to proceed with an appeal, preparation of transcripts is done by private companies charging market rates.  To a litigant, this cost is no different, in effect, from other direct costs of proceeding through the system, such as hearing fees.  And, like the decision to impose hearing fees, privatization and the contracting out of services affiliated with the pursuing litigation is equally a government decision relating to their section 92(14) power over the administration of justice. Since the cost has been offloaded to the private sphere, rather than being charged directly by the courts (or being provided free of charge), no recourse is available – even when it is clear that the not-insignificant cost creates a barrier to accessing appeal mechanisms.  As noted by Farrow197, privatization is pervasive in the civil justice system (such as through the rise of arbitration), leaving low- and middle-income individuals hampered by litigation costs determined by the free market.  As it relates to access to justice litigation, this leaves much of the cost of civil lawsuits outside the scope constitutional A2J as conceived of in Pavlis and Allart.  Though advances in discrete areas have occurred since these cases, due in no small part to the evolution of the law kicked off by TLA (2014), the ordinary litigant continues to have limited opportunity to argue for constitutional A2J, which does not fully consider the effects of privatization on the rule of law. 3.3 Constitutional A2J in TLA (2014) The Supreme Court of Canada’s decision in Trial Lawyers Association of British Columbia v. British Columbia (Attorney General) (2014),198 is the most significant decision  197 Privatization, supra note 1. 198 Trial Lawyers Association of British Columbia v. British Columbia (Attorney General), 2014 SCC 59 [TLA (2014)] was an appeal from Vilardell v. Dunham, 2013 BCCA 65; and see the extensive and powerful commentary of the trial judge on access to justice in the era of privatization in Villardell v. Dunham, 2012 BCSC 748. 45  on constitutional A2J and provides the clearest framework for advancing A2J through litigation yet.  Even still, as will be shown, the direction provided by the majority decision written by then Chief Justice McLachlin leaves uncertainty for litigants hoping to pursue similar claims and leaves the decision vulnerable to narrow construction by lower level courts.  Though decided in the family law context, the case has clear applicability to all civil claims to which hearing fees apply, and has been argued as precedent in a number of civil cases. The unrepresented claimant, Ms. Vilardell, argued at trial that she could not afford the 10-day hearing fee totalling $3,600.199  At the time of trial, Ms. Vilardell was not impoverished in the “ordinary sense” (she had previously been trained and worked as a veterinary surgeon in Europe), but legal fees had depleted her savings, she had been unemployed in the year prior to trial, and most of the family’s income had come from her partner.200  The Court looked at whether she was able to afford the litigation based on her actual circumstances.  Rule 20-5(1) did provide for an exemption from hearing fees, but only where the court:  …finds that a person receives benefits under the Employment and Assistance Act or the Employment and Assistance for Persons with Disabilities Act or is otherwise impoverished, the court may order that no fee is payable by the person to the government under Schedule 1 of Appendix C in relation to the proceeding unless the court considers that the claim or defence (a)   discloses no reasonable claim or defence, as the case may be, (b)   is scandalous, frivolous or vexatious, or (c)   is otherwise an abuse of the process of the court.  In analyzing whether the hearing fee scheme was constitutionally valid, the Supreme Court of Canada began with an analysis of the province’s s. 92(14) authority in the Constitution Act, 1867 relating to the administration of justice.  The Court rejected the argument that all hearing fees were an impermissible incursion on the democratic function of courts, finding that it raised “policy issues relating to how government should generate revenue and allocate their funds” and that “[h]earing fees paid by litigants who can afford  199 Ibid at para 5. 200 Ibid at para 5. 46  them may be a justifiable way of making resources available for the justice system and increasing access to justice overall”.201 Drawing on existing s. 96 of the Constitution Act, 1867 jurisprudence, the Court highlighted that while legislatures could create administrative tribunals and inferior courts, the “core jurisdiction” of superior courts must remain intact, and that this “core cannot be removed from the superior courts by either level of government, without amending the constitution”.202  Expanding the concept beyond the creation of administrative tribunals and inferior courts203, the Supreme Court of Canada interpreted the protected core jurisdiction of s. 96 to the be related to the “historic task… to resolve disputes between individuals and decide questions of private and public law”.  Based on this, “[m]easures that prevent people from coming to the court to have those issues resolved”, such as hearing fees that have the effect of denying access to the courts, are an unconstitutional exercise of the s. 92(14) power that infringes on s. 96.204 From there, McLachlin CJC. went on to outline how the courts ought to determine when such a measure denies access to superior courts.  Her comments on this threshold are worth quoting at length, as they represent the extent of the Court’s guidance on the new framework: [45] Litigants with ample resources will not be denied access to the superior courts by hearing fees.  Even litigants with modest resources are often capable of arranging their finances so that, with reasonable sacrifices, they may access the courts.  However, when hearing fees deprive litigants of access to the superior courts, they infringe the basic right of citizens to bring their cases to court.  That point is reached when the hearing fees in question cause undue hardship to the litigant who seeks the adjudication of the superior court.  [46] A hearing fee scheme that does not exempt impoverished people clearly oversteps the constitutional minimum ― as tacitly recognized by the exemption in the B.C. scheme at issue here. But providing exemptions only to the truly impoverished may set the access bar too high.  A fee that is so high that it requires litigants who are not impoverished to sacrifice reasonable expenses in order to bring a claim may, absent adequate exemptions, be unconstitutional because it  201 Ibid at para 22. 202 Ibid at para 29. 203 See, for example, Re Residential Tenancies Act, 1981 CanLII 24 (SCC), [1981] 1 SCR 714. 204 TLA (2014), supra note 198 at para 32. 47  subjects litigants to undue hardship, thereby effectively preventing access to the courts.  [47] Of course, hearing fees that prevent litigants from bringing frivolous or vexatious claims do not offend the Constitution. There is no constitutional right to bring frivolous or vexatious cases, and measures that deter such cases may actually increase efficiency and overall access to justice.  [48] … A hearing fee scheme can include an exemption for the truly impoverished, but the hearing fees must be set at an amount such that anyone who is not impoverished can afford them.  Higher fees must be coupled with enough judicial discretion to waive hearing fees in any case where they would effectively prevent access to the courts because they require litigants to forgo reasonable expenses in order to bring claims…  In this passage, we see that the Court acknowledges that litigation costs can create a large burden for a large segment of society.  Referring to a combination of expert evidence provided by an economist and the financial circumstances faced by Ms. Vilardell, the Court determined that there was a class of individuals to whom the indigent/impoverished exemption would not apply but who would nonetheless be unable to afford the hearing fees and thus be denied justice.205  On this basis, Ms. Vilardell was excused from paying the hearing fee, and British Columbia’s hearing fee regime was declared unconstitutional, leaving the legislature to enact a compliant regime.206  The Court thus expands the potential classes of litigants that are recognized to be hampered in their effective, Substantive A2J due to the costs of proceeding through the court system. The framework was applied recently in Ma v. Zhao207, which involved an appellant who challenged a Residential Tenancy Branch hearing and sought an exemption from Supreme Court for court fees related to undertaking the judicial review.208  After TLA (2014), the government amended Rule 20-5 of the Supreme Court Civil Rules to incorporate the new undue hardship threshold for waiving court costs.209  Ms. Ma’s  205 Ibid at para 52. 206 Ibid at paras 68-69. 207 2019 BCCA 248 [Zhao]. 208 Ibid at para 1. 209 Ibid at para 2; SCCR Rule 20-5. 48  application for the exemption was dismissed by the master and on appeal to the Supreme Court.210 The applicant’s affidavit described that she was not employed and that her family income between herself and her partner was $1,962 per month with expenses of $2,341 per month.211  The Court noted that the affidavit did not describe whether the shortfall was met through borrowing or the extent of the appellant’s debts.212 On appeal, the Court described a Rule 20-5 decision as discretionary, but with a “constitutional dimension” due to the finding in TLA (2014).  The threshold for undue hardship applied was whether “an applicant could afford the fees without foregoing reasonable expenses”.213  On an evidentiary basis, the Court of Appeal noted that the application judge or master “is not required to accept the appellant’s financial information at face value. However, if the financial information can reasonably be interpreted as supporting the proposition that the appellant cannot afford to pay court fees without foregoing reasonable expenses, some explanation for rejecting such evidence would be necessary in light of the constitutional dimension of this issue.”214 The Court of Appeal found that the master had not expressed skepticism over the applicant’s financial information, that she had not addressed the undue hardship question, and that she had mistakenly considered the nature of the underlying action (a monetary dispute) in assessing whether the fee exemption applied.215  On this basis, the decision was overturned, and the exemption was applied to the appellant.216 Zhao provides some clarification and guidance to applicants, judges and masters as to how to apply the undue hardship threshold to exemption applications.  The judgment does not go into great detail about what “foregoing reasonable expenses” means and, with few reported judgments, it remains unclear what a litigant is supposed to sacrifice in  210 Ibid at paras 5-6. 211 Ibid at para 4. 212 Ibid at para 4. 213 Ibid at para 20. 214 Ibid at para 21. 215 Ibid at paras 26-28. 216 Ibid at para 30. 49  order to pursue a claim.  However, the courts have developed an “Order to Waive Fees Package”217, including standard form application supporting applications for fee waivers, which sets out various categories of financial information to be provided (such as monthly household income and expenses, number of dependents, and so on).218  This goes some way in helping applicants through the process and may facilitate the development of this area of the law, though it does not directly help in specifying where the threshold of “undue hardship” lies. The s. 96 framework created by TLA (2014) is clearer, more manageable and more predictable than the courts’ grand but abstract proclamations about the rule of law in cases such as B.C.G.E.U. and John Carten.  However, in a modern context, where the civil justice system has become a proliferating set of mechanisms, from arbitration, to tribunals, to the hierarchical court system from Provincial Court all the way up to the Supreme Court of Canada, the focus on s. 96 has major limitations for the advancement of A2J.  Though s. 96 superior courts have traditional and hallowed standing in the constitution, our common law system of precedent and the modern administrative state dilutes the primacy of superior courts in the real world.   Equitable A2J must mean that appeal all the way up to the Supreme Court of Canada is considered in the A2J debate, otherwise, precedents and the “shadow of the law” risk evolving in ways that disproportionately benefit those with existing advantage in society; the lucky few that can undertake appeals and strategic litigation.219  At the level of A2J litigation conceived of through s. 96, the possibility of this discussion occurring through the courts is limited to the relationship between lower level tribunals and courts and the protected ‘core’ of superior courts.220; however, the utility of this relationship in protecting  217 BC Supreme Court, “Order to Waive Fees Package”, online: https://www.bccourts.ca/supreme_court/self-represented_litigants/Supreme%20Court%20Document%20Packages/Order%20to%20Waive%20Fees%20Package.docx  218 See form 80 (Affidavit in support of order to waive fees): Government of British Columbia, Supreme Court Civil Rules forms, online: https://www2.gov.bc.ca/gov/content/justice/courthouse-services/documents-forms-records/court-forms/sup-civil-forms  219 i.e., those who benefit from the “multi-option” civil justice system contemplated by the Working Group recommendations outlined in Chapter 2; and see Chief Justice Wagner’s remarks at the Access to Justice: a Societal Imperative conference on the lucky few at A2J Societal Imperative, supra note 10.  220 See, for example, TLABC Notice of Claim, supra note 120, more fully discussed in Chapter 2. 50  A2J is hindered by layers of litigation and practical hurdles to undertaking appeal or review to superior courts.  In addition, while the Supreme Court of Canada discusses the relationship between the rule of law and section 96, it sidesteps the fact that – as noted in B.C.G.E.U. – the rule of law is also a free-standing postulate located in the preamble of the Charter that is not explicitly limited to the reach of superior courts.  It is uncertain how the court views the rule of law as affecting rights made effective in a venue other than superior courts. Ultimately, TLA (2014) does have the potential to advance the cause of A2J, though it is unclear to what extent the framework will take hold or be extended.  The main difficulties lie in (1) deciding what financial barriers might fall within the purview of the doctrine in the era of privatization and might be subject to the threshold of “undue hardship”, and (2) in determining what constitutes the “core jurisdiction” of s. 96 that warrants constitutional A2J protection.  It is possible that the doctrine will not be extended beyond hearing fees and other direct fees imposed by the courts, which represent only a small proportion of the litigation costs a claimant faces.  To a user of the civil justice system, the distinction between direct and indirect costs is arbitrary, and the rule of law suffers. 3.4 Evolution of s. 96 since TLA (2014)  An example of the limitations of the TLA (2014) framework are apparent in Trial Lawyers Association of British Columbia v. British Columbia, 2017 BCCA 324 (leave to appeal to SCC refused) [TLA (2017)].  That case challenged the civil jury fee regime.  In the judgment, the Court of Appeal highlighted the relationship between s. 92(14) and s. 96, thereby further delineating the respective roles of provincial legislatures and superior courts.  As in Trial Lawyers Association (2014), they reaffirmed that “authority over the administration of justice under s. 92(14) is broad but must be exercised harmoniously with the core jurisdiction of provincial superior courts protected by s. 96”.221    221 Trial Lawyers Association of British Columbia v. British Columbia, 2017 BCCA 324 (leave to appeal to SCC refused) [TLA (2017)] at para 47. 51  In describing the core jurisdiction protected by s. 96, the Court mentions that it has not been “definitively defined”, and includes the jurisdiction of superior courts to judicially review the jurisdiction of inferior tribunals.222  Furthermore, s. 94(12) powers must be “exercised in a manner that is consistent with the right of individuals to bring their cases to the superior courts and have them resolved there.”223  The non-exhaustive interpretation of s. 96 core jurisdiction leaves open the possibility of extending constitutional A2J to other aspects of the civil litigation system.  In the context of the civil jury fee regime, the Court of Appeal found that “…the Association has failed to demonstrate an interference with access to the courts of the significant degree contemplated by TLA, 2014” and that s. 96 did not protect the right to a civil jury trial, which was only one modality of trial.224   As to the argument that TLABC raised regarding the unfairness of a regime which allows “wealthy persons… a choice of how a civil case may be tried” but denies same to those who cannot afford it, the Court of Appeal takes a narrow stance, noting (citing Justice Major in British Columbia v. Imperial Tobacco Canada Ltd., 2005 SCC 49) that the legislature can enact strict laws that would pass s. 96 constitutional muster so long as they do not “fundamentally alter of interfere with the relationship between the courts and the other branches of government”,225 and that in a “constitutional democracy such as ours, protection from legislation that some might view as unjust or unfair properly lies not in the amorphous underlying principles of our Constitution, but in its text and the ballot box”.226   The Court of Appeal did not deny that the civil jury fee regime might disadvantage those who could not afford the fees, and instead stuck to a narrow interpretation of s. 96 core jurisdiction to dispose of TLABC’s challenge.  Constitutional A2J does not extend to a vision of Equitable A2J that would truly level the playing field in the litigation context.  Instead, it is limited to a conception that focuses on providing a minimum, threshold-level  222 Ibid at para 48. 223 Ibid at para 51. 224 Ibid at para 56. 225 Ibid at para 57. 226 Ibid at para 59. 52  of A2J to maintain the superior court’s place in relation to other branches of government.  This leaves out considerations of power imbalances and differential access to legal knowledge and resources that are also realities of the A2J landscape.  While there are limited gains to be made through constitutional arguments, given the recent efforts of the legislature to impose sweeping jurisdictional and procedural reforms argued to improve the efficiency of claims by imposing numerous barriers to adjudication in superior courts227, the protection of s. 96 A2J is not meaningless. Another effort to extend TLA (2014) was made in Cambie Surgeries Corporation v. British Columbia (Attorney General), which challenged the constitutionality of daily hearing fees as they were applied to constitutional challenges.228  The Supreme Court of Canada began its analysis by affirming that protecting the judiciary’s role in private and public law disputes is key to access to justice and s. 96, as determination of such issues is “central to what the superior courts do”.229  However, they found no reason to give special status to constitutional claims, as the state can be kept to account through various avenues, including constitutional challenges, judicial review, and civil claims against the state.230   Citing TLA (2014), the Court reiterated that taxes or fees that can be shown to pose a real obstacle to litigants are unconstitutional to extent that they obstruct access to the courts, while emphasizing that an economist’s evidence regarding the effect of hearing fees on a litigant is valuable.231  The argument was dismissed as there was no evidence that parties were actually deterred by the imposition of hearing fees.232  Cambie is another example of evidentiary hurdles that dilute the potential use of the “undue hardship” threshold to legally-unfamiliar litigants who have no access to funding for their constitutional A2J claims.  The reluctance to grant categorical constitutional A2J rights  227 See, for example, changes to the CRT’s jurisdiction in relation to motor vehicle claims. 228 2018 BCCA 385 [Cambie] at para 1. 229 Ibid at para 31. 230 Ibid at para 32. 231 Ibid at para 54. 232 Ibid at para 55. 53  based on category of case or claimant, in its effect, increases the burden on individuals seeking to assert such rights in constitutional cases or otherwise. There is one case in which a categorical exemption from hearing fees has been established.  In Yahey v British Columbia, Blueberry River First Nations made an argument that hearing fees ought to be constitutionally exempted for aboriginal rights claims made pursuant to s. 35(1) of the Constitution Act, 1982.233  The underlying claim related to alleged Treaty 8 infringements by the Crown, the hearing for which was set for 160 days at a hearing fee cost of $120,000.234 Blueberry River argued that the imposition of hearing fees for aboriginal rights claims was inconsistent with the Constitution, the Honour of the Crown, and the objective of reconciliation, and further, that hearing fees disproportionately affect Indigenous peoples given the lengthy and evidence-intensive nature of aboriginal rights litigation.235  They further argued that TLA (2014) and Cambie did not deal with the issue of hearing fees as it applies to s. 35(1) which grants a unique kind of constitutional right.236  In response, the Crown said that TLA (2014) and Cambie sufficiently dealt with hearing fees and that a different standard should not apply to s. 35(1), and cited jurisprudence that “cautions against use of a constitutional exemption as a stand-alone remedy and against making constitutional decisions without a proper factual foundation.”237 The trial judge surveyed the legal principles applying to s. 35(1), finding the primary underlying purpose to be reconciliation (characterized by the judge as a continual process)238, which requires “addressing the past and fostering positive long-term relationships” to prevent the re-occurrence of harm caused by a lengthy history of Crown “grievances and misunderstandings”.239    233 2020 BCSC 278 [Yahey] at para 8. 234 Ibid at paras 1 and 4. 235 Ibid at paras 9 and 58. 236 Ibid at para 26. 237 Ibid at para 35. 238 Ibid at para 53. 239 Ibid at para 39. 54  She acknowledged, citing Manitoba Metis Federation Inc. v. Canada (Attorney General), 2013 SCC 14, that courts have a role to play in reconciliation, which in practice means flexible application of statutes or rules that hinder Indigenous peoples’ legal claims.240  This, combined with the long line of cases holding that s. 35(1) rights are unique and serve a different function than other Charter rights241, grounded the trial judge’s determination that “hearing fees disproportionately and unfairly affects Indigenous peoples” in a way that was not consistent with the goal of reconciliation.242   The Court read down the hearing fee provisions, making the following order: “Item 10 of Schedule 1 in Appendix C is unconstitutional and of no force or effect insofar as it requires Indigenous peoples who are seeking to uphold or protect their s. 35(1) Aboriginal and/or treaty rights from alleged infringement, and who are required to so through trial, to pay daily hearing fees to the Crown as defendant in that action to access the BC Supreme Court”.243  The decision, made on February 27, 2020, is currently under appeal by the Crown.244 Yahey represents a significant advance for access to aboriginal rights litigation should the decision withstand appellate intervention.  Given the unique nature of the rights involved (aboriginal rights are designed by the courts as a unique class and sui generis in nature), however, the categorical exemption is unlikely to be a useful precedent in extending categorical exemptions to non-Indigenous contexts. Recently, in J. Cote & Son Excavating Ltd. V. Burnaby (City), 2019 BCCA 168 [J. Cote], another type of s. 96 argument was made: that the City of Burnaby’s clause excluding bids from contractors in active litigation against the City in the last two years infringed the constitutional right to access the courts.245  The case sheds light on how the Trial Lawyers Association (2014) framework fits into the s. 96 jurisprudence.  240 Ibid at para 41. 241 Ibid at para 44. 242 Ibid at paras 59 and 61. 243 Ibid at para 82. 244 See BC Court of Appeal court file CA46758. 245 J. Cote & Son Excavating Ltd. V. Burnaby (City), 2019 BCCA 168 [J. Cote] at para 1. 55  Citing British Columbia v. Imperial Tobacco Canada Ltd., 2005 SCC 49, the Court in J. Cote identified the rule of law as an “unwritten constitutional principle” and a “fundamental postulate of our constitutional structure”.246  The Court accepted that the rule of law, by being located in the preamble in the Charter, was connected to the judicial function of s. 96, and iwas not an independent means of challenging government decisions or in asserting A2J rights recognition.247  As the clause at issue was a provision in the City of Burnaby’s tender materials (a contractual document), and not a law of general application passed by a legislature, the Court of Appeal found that section 96 was not engaged at all and that the “undue hardship” test had no application.248  The decision also relied on B.C.G.E.U., Christie and TLA (2014) for the proposition that s. 96 allows the imposition of some conditions how and when people have a right to access the courts so long as the core of inherent jurisdiction remains intact.249  Lastly, the clause represented only a “speculative lost opportunity cost” regarding the trade-off of whether to pursue litigation against the City when it might later wish to bid on a contract, and was not a “direct barrier” such as was the case with hearing fees.250  It was compared to other contractual provisions that limit litigation such as mandatory arbitration clauses.251 The Court of Appeal goes further than previous constitutional A2J cases in spelling out why they consider that the rule of law and, by extension, A2J, are not, on their own, enforceable constitutional rights.  The Court cites jurisprudence on the preamble to the Constitution Act, 1867 (which unites Canada as a nation “with a Constitution similar in Principle to that of the United Kingdom”) finding that the preamble, while a part of the Constitution, “has no enacting force” and is “not a source of positive law”.  This logic is  246 Ibid at para 20. 247 Ibid at para 22. 248 Ibid at paras 47 and 60. 249 Ibid at paras 50 and 57. 250 Ibid at para 60. 251 Ibid at para 60. 56  applied by the Court of Appeal to the Charter’s own preamble to limit its reference to the rule of law to a constitutional principle but not an enforceable right.252   Flowing from this, the Court of Appeal confirmed that “rule of law concerns that support access to justice rights are properly addressed under a s. 96 analysis”.253  When section 96 is engaged, legislation that impedes access to the courts may run afoul of s. 96 inherent jurisdiction when it causes either (1) “undue hardship” in accessing superior courts, or when (2) “legislation that purports to transfer an aspect of the core jurisdiction of the superior court to another decision-making body or with privative clauses that would bar judicial review”.254  The threshold of “undue hardship” uses a financial means test to determine whether access to the superior courts has been denied.255    The two components of s. 96, combined together, theoretically operate to ensure that the superior courts’ “historic task… to resolve disputes between individuals and decide questions of private and public law”256 is protected such that litigants have a route to have their cases considered through superior court (through direct jurisdiction, appeal, or judicial review) and have some constitutional guarantee of being able to engage that superior court.   Of course, layers of litigation created by administrative boards, tribunals, and lower-level courts make the assessment of whether such access is practically meaningful a complicated task, and is an area where more research is required.  In an age where tribunals and Provincial Courts are increasingly being looked to simplify and streamline adjudicative processes257, this combination of rights has the potential to be argued in old and new ways to challenge aggressive legislative incursions into litigants’ superior court access rights.  252 Ibid at para 67. 253 Ibid at para 31. 254 Ibid at para 45. 255 Ibid at paras 54 and 63. 256 TLA (2014), supra note 148 at para 32. 257 See, for example, the expanding monetary jurisdiction of Small Claims court, and the rapidly increasing jurisdiction of the Civil Resolution Tribunal that was analyzed in Chapter 2. 57  Since core jurisdiction of superior courts is an open concept, s. 96 jurisprudence can continue to evolve, as has occurred in cases such as Crowder, considered below.  In particular, legislative incursions into the inherent, discretionary decision-making abilities of superior court judges are fertile ground for s. 96.  In addition, though the TLA (2014) undue hardship threshold is currently conceived of as a financial means test, it is arguable that the concept of undue hardship could be extended in other ways.   For example, recent changes to motor vehicle accident cases in British Columbia shift jurisdiction to the Civil Resolution Tribunal, create numerous barriers to accessing superior court, and place the procedural onus on claimants much of the time.258  There is a case to be made, and that is being made by the Trial Lawyers Association of British Columbia in a constitutional challenge,259 that these, taken together, create undue hardship (through time, effort, and expense) for claimants in accessing s. 96 courts – which, given the nature of their disputes, may be the appropriate forum for determining the many and often long term effects (some of which do not present immediately) a motor vehicle accident injury has on their lives.  While a shift to no-fault insurance has since been announced that will further change the motor vehicle accident landscape starting May 2021, the CRT will continue to play a significant role by adjudicating disputes that accident victims have with ICBC. These types of reform are an area where procedural and jurisdictional rules have the potential operate to dilute Substantive, Equitable A2J.  They can do this through various but overlapping means.  One avenue is by dissuading and confusing litigants – who are often unfamiliar with the multiple processes which they are trying to navigate – to pursue avenues such as appeal or judicial review.  Another is to make these mechanisms so  258 For context, see the Civil Resolution Tribunal’s online information about motor vehicle accident claims: https://civilresolutionbc.ca/resources/crt-jurisdiction/#what-kinds-of-motor-vehicle-injury-disputes-can-the-crt-resolve; https://civilresolutionbc.ca/wp-content/uploads/2019/03/CRT-Media-Release-March-29-2019.pdf; and see the statutory scheme under the Civil Resolution Tribunal Act, SBC 2012, c 25 and accompanying Accident Claims Regulation, BC Reg 233/2018. 259 See paras 40-48 of the Amended Notice of Civil Claim filed Mar 02/2020 in Supreme Court file S193931 (Vancouver Registry) [TLABC Amended Notice of Claim]. 58  limited in their possibility for changing an outcome such that there is no point in even trying.   While there may be types of claims where a simplified process and relaxed evidentiary rules do not undermine the truth-finding function of adjudication, forcing a factually-complex claim into a streamlined procedure based on external cost considerations risks seriously undermining justice where simplicity is manufactured by the shape of the system itself.  It is here where s. 96 protection can be useful, since superior courts have a range of robust fact-finding mechanisms that if properly and proportionately utilized contribute to meaningful A2J.    3.5 Procedure, Jurisdiction and A2J An example of the provincial government’s recent attempts to create efficiency and cost-saving was at issue in Crowder v British Columbia (Attorney General)260.  The decision touches on the relationship between s. 92(14) (the province’s power over the administration of justice), s. 96, inherent jurisdiction, and access to justice.  It concerned a motor vehicle accident (MVA) claimant named Mr. Crowder who, along with the Trial Lawyers Association of BC, challenged an order-in-council which sought to enact Supreme Court Civil Rule 11-8, which purported to limit the number of expert reports that could be used in MVA actions to three.261  Additional experts could be appointed by consent, to respond to opposing party experts, and could be appointed by the court.262  The intention of setting the cap on expert reports was to save litigation costs.263 The judgment, by Chief Justice Hinkson, details the procedural rule-making process.  While the Lieutenant Governor in Council is responsible for the creation of judicial rules, section 6 of the Court Rules Act, RSBC 1996, c 80, requires such rules only be made on the recommendation of the Attorney General after consultation with the Chief Justice of  260 2019 BCSC 1824 [Crowder]. 261 Ibid at para 24. 262 Ibid at para 25. 263 Aidan Macnab, “B.C. Attorney General won’t appeal court’s ruling on expert cap in motor vehicle accident cases” (21 Nov 2019), Canadian Lawyer Magazine. 59  the court at issue; in practice, a Rules Revision Committee facilitates this process.264  Rule 8-11 had not followed this process, and the Committee had not recommended the rule changes, though the Order-in-Council represented that it was made “after consultation with the Chief Justice of the Supreme Court”.265 Mr. Crowder’s counsel argued that the nature of the plaintiff’s injuries, which included brain injury, eye and face injuries, soft tissue injuries, cognitive impairments, PTSD and more, required multiple areas of specialized medical expertise making the limit of three expert reports insufficient to establish Mr. Crowder’s injuries and the effects on his life.266  The Court accepted that Rule would “oblige Mr. Crowder to make strategic litigation decisions about the manner by which he adduces evidence of certain facts.”267  The trial judge also took judicial notice that some MVA actions utilized more than three experts, and that typically, plaintiffs with the onus to prove damages call more evidence.268 The applicable test – and accompanying interpretive principles -- for determining the vires regulations such as Rule 11-8 was set out by Madam Justice Abella in Katz Group Canada Inc. v. Ontario (Health and Long-Term Care), 2013 SCC 64, and requires that the regulation be shown to be “inconsistent with the objective of the enabling statute or the scope of the statutory mandate”.269   The petitioners contended that the three report limit impermissibly crossed the line into affecting the substantive rights of plaintiffs rather than merely being a matter of process, and as such, was beyond the regulatory authority of the Lieutenant Governor in Council under the Court Rules Act (with substantive changes in law requiring the full legislative process).270  After reviewing the jurisprudence establishing that civil procedure rules that effect a change in substantive law are ultra vires,271 the trial judge found that  264 Crowder, supra note 260 at paras 18-19. 265 Ibid at paras 22 and 68. 266 Ibid at para 55. 267 Ibid at para 59. 268 Ibid at para 60. 269 Ibid at para 93. 270 Ibid at paras 95-96. 271 Ibid at paras 102-112. 60  the Rule did change the substantive law, and therefore was outside the statutory authority granted by the Court Rules Act.272  Another ground advanced by the petitioners was that Rule 11-8 infringed on s. 96 of the Constitution Act, 1867, by eliminating judicial discretion regarding the number of reports to allow.273  Their argument was grounded in the court’s inherent jurisdiction to control its own process, and impaired the court’s ability to ensure the integrity of the adjudicative process and protect access to justice by restricting the evidence upon which it could decide cases.274  The trial judge rejected the argument of the Attorney General that the provision for additional court-appointed or consent-based expert reports were an adequate alternative to judicial discretion, as such reports change the nature of the traditional common-law adversarial process and raise complicated issues about matters like litigation privilege.275  On this basis, the Chief Justice declared the Rule 11-8 Orders-in-Council contrary to s. 96 and unconstitutional.276 Finally, the petitioners argued that Rule 11-8 denied access to justice by creating undue hardship (as conceived in TLA (2014)) for litigants.277  Their argument was summarized by the trial judge in this way: “They submit the Rule 11-8 Orders create undue hardship in obtaining access to justice for plaintiffs by obliging plaintiffs, in absence of agreement with defendants, to undertake the additional financial and practical burdens of the court-appointed expert process and by adversely changing the rules applicable to proof of claims already commenced.”278   In response, the Attorney General cited TLA (2017) for the proposition that s. 96 access to justice does not protect particular modes or methods of adjudication.279  The Chief Justice declined to make a finding on whether the Rule infringed s. 96 access to  272 Ibid at paras 114-116. 273 Ibid at para 124. 274 Ibid at paras 125 and 135. 275 Ibid at paras 172-178. 276 Ibid at para 198. 277 Ibid at para 187. 278 Ibid at para 187. 279 Ibid at para 188. 61  justice given his earlier finding on the court’s core jurisdiction.280  Crowder, then, does not expand the applicability of “undue hardship” beyond the narrow financial means test, but its discussion of “financial and practical burdens” may help set the stage for such arguments to be made in future cases. The Attorney General chose not to appeal the decision, deciding instead to introduce legislative amendments to the Evidence Act which would limit adversarial expert reports but with “narrow judicial discretion” to allow additional experts.281 While recent legislative changes takes the position that superior court discretion contributes to excessive litigation costs, judicial discretion can also be a tool for tailoring processes in a way that is responsive to the specific needs of the case before a judge, which contributes to efficiency.  Hryniak v. Mauldin282 is a seminal case on the procedural elements of access to justice as it relates to the possibility of superior courts utilizing discretion to promote A2J through a flexible and nimble applicable of civil procedure rules.  It concerned the interpretation of Ontario’s summary judgment rules, which had been amended in 2010 along with a spate of other procedural changes intended to increase access to justice.283  Similar changes occurred throughout Canada, with British Columbia following the trend with the rewriting of the Supreme Court Civil Rules in 2010. The Supreme Court of Canada began its analysis with the recognition that access to a full trial is not a realistic option for large segments of the population, necessitating a “culture shift” towards other adjudicative mechanisms.284  The Court highlights the importance of public forms of adjudication in relation to the myriad forms of settlement and dispute resolution based on the concept of the shadow of the law (though this term is not used explicitly) and its connections to certainty and fairness, the rule of law, and development of the common law.285  280 Ibid at para 195. 281 Aidan Macnab, “B.C. Attorney General won’t appeal court’s ruling on expert cap in motor vehicle accident cases” (21 Nov 2019), Canadian Lawyer Magazine. 282 2014 SCC 7 [Hryniak]. 283 Ibid at para 3. 284 Ibid at para 24. 285 Ibid at paras 24-26. 62  The Court’s discussion of modified and simplified adjudicative procedures rests on the foundation of proportionality, which has been expressly incorporated into many civil procedure regimes, including in the Object of British Columbia’s Supreme Court Civil Rules.  On proportionality, the Court says: [29] There is, of course, always some tension between accessibility and the truth-seeking function but, much as one would not expect a jury trial over a contested parking ticket, the procedures used to adjudicate civil disputes must fit the nature of the claim.  If the process is disproportionate to the nature of the dispute and the interests involved, then it will not achieve a fair and just result.  Invoking proportionality allows discretion to consider “the appropriateness of the procedure, its cost and impact on the litigation, and its timeliness, given the nature and complexity of the litigation”.286  The Supreme Court of Canada uses the example in Hryniak of summary judgment procedures to flesh out this concept, providing guidance on how it ought to be applied in the pursuit of more tailored, efficient litigation. In particular, the Court notes that proportionality incorporates both efficiency and fairness, which means that a straightforward view of streamlining is not always appropriate.  They caution:287 While summary judgment motions can save time and resources, like most pre-trial procedures, they can also slow down the proceedings if used inappropriately.  While judges can and should play a role in controlling such risks, counsel must, in accordance with the traditions of their profession, act in a way that facilitates rather than frustrates access to justice…  …However, proportionality is inevitably comparative; even slow and expensive procedures can be proportionate when they are the fastest and most efficient alternative.  The question is whether the added expense and delay of fact finding at trial is necessary to a fair process and just adjudication.  This shows the Court’s understanding that proportionality, and the best path to justice in any particular case, is contextual.  According to Hryniak, proportionality and the flexible nature of summary judgment (and summary trial) rules mean that a judge has the tools to fairly resolve a dispute without resorting to evidentiary procedures that are equivalent  286 Ibid at para 31. 287 Ibid at paras 32-33. 63  to a full trial.  In the Court’s view, documentary records combined with the option to order oral testimony on certain issues are “often sufficient to resolve material issues fairly and justly”.288 There are certain drawbacks to the approach in Hryniak.  Judges may make mistakes and assumptions about how complex a claim is, particularly when self-represented litigants are involved who are not well-versed in how to present their arguments.  Power imbalances may also be used to have claims dismissed early on this process, as has been documented by the Self-Represented Litigants Project.289  Superior courts clearly function best when parties are well-resourced and represented by counsel; without robust legal aid funding for civil claims, this leaves superior court starved of the resources it needs to properly decide claims between parties with unequal bargaining power. One thing to be said about focusing A2J reform on making superior courts more accessible is that it allows for adjudication in a single forum that can adapt to a range of cases.  The inherent jurisdiction of superior court judges can also be a powerful tool in serving the ends of justice, as will be seen in the following section on costs.  By contrast, recent legislative attempts to stratify court procedures and impose jurisdictional changes may arbitrarily restrict the ability to communicate factual complexity, often without a valid rationale that claims subject to tribunal jurisdiction are appropriate to the venues in which they are being adjudicated.  The appearance of access is hollow if cases are not decided justly or correctly. In subsequent cases, the Court explicitly recognizes the role of procedure in furthering A2J.  For example, in Endean v. British Columbia290, the Supreme Court of Canada interpreted the Class Proceedings Act (of Ontario and British Columbia) as allowing for judges to sit outside their home provinces without the requirement to a video link to an open courtroom in the judge’s home jurisdiction.  The Court’s interpretation was based on judges’ inherent authority to control procedure and the underlying purposes of class actions (one of which is access to justice).    288 Hryniak at para 57. 289 Summary Judgment Against SRLP’s, supra note 79. 290 2016 SCC 42 [Endean]. 64  The Court highlighted the flexibility of inherent jurisdiction, noting that “procedural innovations that aid A2J should not be stymied by unduly technical or time-bound understandings of a class action judge’s authority”.291  In AIC Limited v Fischer292, an appeal concerning class action certification, Mr. Justice Cromwell broke down two interconnected components of A2J: process (access to fair process to resolve their claims) and substance (just and effective remedy to claims if established).  Importantly, the Supreme Court of Canada recognized that process defects may raise doubts as to substantive outcome, and vice versa.293   In Endean, the Supreme Court of Canada further acknowledged that meaningful procedural access goes beyond basic notions of simplicity, and that accessibility must be measured from the perspective of the user… including “careful attention to every decision-making step in the process of resolving a claim”.294  These types of cases show that superior courts have the potential to adapt and be responsive to A2J concerns, and are useful in illustrating that simplicity and efficiency are only two of many factors to be taken into account in furthering A2J.  In the area of costs, for example, the superior courts have tools available to them, though often used reluctantly, that help redress some of the major obstacles of pursuing claims in a traditional court: lack of funds and power imbalances between litigants.  These powers are reviewed next. 3.6 Costs & Inherent Jurisdiction British Columbia (Minister of Forests) v. Okanagan Indian Band295, involving an underlying claim to aboriginal title, deals with one of the court’s more powerful inherent jurisdiction tools to advance the cause of A2J: interim costs orders.  Such orders derive from broad equitable costs discretion, are made “in any event of the cause” (e.g., do not  291 Endean v. British Columbia, 2016 SCC 42 [Endean] at para 4. 292 Supra note 43. 293 AIC Limited v Fischer, 2013 SCC 69 [AIC] at para 24. 294 Endean at para 92; to this end, they cite R. A. Macdonald, “Access to Justice in Canada Today: Scope, Scale and Ambitions”, in J. Bass, W. A. Bogart and F. H. Zemans, eds., Access to Justice for a New Century ― The Way Forward (2005), 19, at p. 105.) (92) [“A process that is efficient and expeditious, but is “a mystery to those who participate in it . . . is not a process that enhances access to justice”]. 295 2003 SCC 71 [Okanagan]. 65  depend on the ultimate outcome, where normally costs are awarded to only a winning litigant) and facilitate a party’s ability to bring a claim to trial.296 The narrow availability of interim costs orders is discussed by the Supreme Court of Canada as an A2J measure which makes public interest litigation, such as Charter claims, more accessible to ordinary citizens with limited means.297  Such orders, made now on the basis of Rule 14-1(9)298 and inherent jurisdiction, are limited to “highly exceptional cases” on “matters of public importance” given that, if the party awarded interim costs loses, they both do not have to bear normal costs consequences and the other party may have to pay their costs.299 Such orders have also been used to redress extreme inequality between litigants.  As stated by the Court, in referring to jurisprudence out of England dating back to 1742300: [31] Concerns about access to justice and the desirability of mitigating severe inequality between litigants also feature prominently in the rare cases where interim costs are awarded.  An award of costs of this nature forestalls the danger that a meritorious legal argument will be prevented from going forward merely because a party lacks the financial resources to proceed.  They have been utilized in family law cases as well as in trust, bankruptcy and corporate cases where an impecunious litigant cannot otherwise pursue a valid claim.301  The Court sets out a three-part test for such cases302:  1. The party seeking the order must be impecunious to the extent that, without such an order, that party would be deprived of the opportunity to proceed with the case;  2. The claimant must establish a prima facie case of sufficient merit to warrant pursuit; and,  3. There must be special circumstances sufficient to satisfy the court that the case is within the narrow class of cases where this extraordinary exercise of its powers is appropriate.  296 Ibid at para 1. 297 Ibid at para 27. 298 SCCR Rule 14-1(9): “Subject to subrule (12), Costs of applications, costs of a proceeding must be awarded to the successful party unless the court otherwise orders” 299 Okanagan, supra note 295 at para 30. 300 Jones v. Coxeter (1742), 2 Atk. 400, 26 E.R. 642 (Ch.). 301 Okanagan, supra note 295 at para 34. 302 Ibid at para 36. 66   In the context of public interest litigation, as was at issue in Okanagan, “special circumstances” include a requirement that “the issues raised transcend the individual interests of the particular litigant, are of public importance, and have not been resolved in previous cases”.303  In Little Sisters Book and Art Emporium v Canada (Commissioner of Customs and Revenue)304, the Supreme Court of Canada clarified that the “special circumstances” test for public interest litigation sets a high but flexible bar, requires that interest in the case must extend beyond the individual litigant, and mandates that the litigant must exhaust all other possible funding options.305  There is less guidance on what “special circumstances” means in the context of private litigation (such as in family law cases), but large inequality between parties and a necessity to level the playing field appears to be a significant factor.306 Orders must also be reviewed throughout the proceeding in order to properly balance A2J and efficient litigation (one of the normal objectives of costs awards).  A final consideration is the position of the defendants, who should not be unfairly burdened by the order.307 The role of costs in the context of access to justice was expanded upon in Tanious v The Empire Life Insurance Company308.  Tanious was a test case that concerned a terminated employee who had multiple sclerosis and struggled with drug abuse related to attempting to manage her condition.309  During her employment, her disability insurer had denied her claim for long-term disability coverage, though Ms. Tanious did not argue they had acted in bad faith in so doing.310    303 Ibid at para 40. 304 2007 SCC 2 [Little Sisters]. 305 Ibid at paras 38-40. 306 See, for example, Lakhoo v Lakhoo, 2015 ABQB 357. 307 Okanagan, supra note 295 at para 41. 308 2019 BCCA 329 (leave to appeal to SCC dismissed) [Tanious]. 309 Tanious v The Empire Life Insurance Company, 2019 BCCA 329 (leave to appeal to SCC dismissed) [Tanious] at para 3. 310 Ibid at para 4. 67  With the help of counsel, who she had retained on a contingency fee basis, Ms. Tanious succeeded in her claim against the insurer and sought special costs (a more complete form of cost recovery than ordinary costs awards) on the basis that her, and disabled individuals in general, face numerous and multi-faceted barriers in settling disability insurance claims, leading to difficult and long cases.311 The Court of Appeal, in deciding whether the trial judge’s award of special costs should be upheld, describes the purposes of costs awards this way: …they may encourage settlement, deter frivolous actions or defences and sanction unreasonable conduct committed in the course of litigation.  In addition, on occasion costs may be awarded to enhance access to justice, mitigate severe inequality between litigants and encourage socially desirable conduct.  In other words, costs awards may be used as an instrument of policy to accomplish purposes and objectives the law seeks to foster and promote…312  While the Court of Appeal affirmed that ordinary costs awards will generally produce a just result, they disagreed with the insurer that personal and financial circumstances of a litigant can never be relevant to a costs determination.313  Such consideration may be possible in “exceptional cases” and that the “categories of exceptional cases” to which personal circumstances may be relevant are not closed.314  Examples have arisen in public interest litigation (though the Supreme Court of Canada has cautioned that this should not “bring an alternative… legal aid system into being”), and estate litigation, when a person’s very livelihood was at issue, and where a litigation victory on substantive issues would only “amount to a strictly pyrrhic victory”; thus the Court has at times considered the real social context that a litigant is in.315  The Court of Appeal found that the trial judge had properly exercised his discretion to award special costs based on the “interests of justice in all the circumstances”.316  In particular, the decision was grounded in the “unique challenges, complexities and costs  311 Ibid at paras 7 and 9. 312 Ibid at para 36. 313 Ibid at para 60. 314 Ibid at para 61. 315 Ibid at paras 63-65. 316 Ibid at para 79. 68  inherent in disability insurance litigation” that make pursuit of same by an impoverished and disabled litigant impractical without more fulsome cost recovery.317  The Court of Appeal characterized this as providing “meaningful access to justice” to Ms. Tanious as a policy objective, though it declined to find that special costs awards should categorically apply to all disability insurance claims318.  Since, in general, disability insurers are well-resourced and are likely familiar with a litigants’ circumstances, the Court of Appeal commented that such a development in the law might encourage earlier settlement of such claims and would not hinder disability insurers in pursuing valid defences.319  3.7 Conclusion There have been significant developments in the case law on A2J over the last two decades relating to access to counsel, court costs, superior courts, and inherent jurisdiction.  The jurisprudence showcases that the judiciary has powerful tools available to it to level the A2J playing field, particularly in individual cases that come before the superior courts.  However, decisions fall short of mandating systemic changes: they do not obligate the legislature to take significant positive action. The irony of these A2J advances is that these judicially-mandated requirements suffer from the same practical impediments as traditional rights adjudication that stymie rights being made effective for the large segments of potential litigants who face various forms of undue hardship in bringing claims through the Civil justice system.  While the rights have been recognized, and have the potential for growth given the open-ended nature of the legal tests that relate to A2J (such as for access to counsel, s. 96 core jurisdiction, and interim costs doctrines), legally disadvantaged litigants still have not been provided the tools to facilitate the bringing of such claims.  So far, success is largely tied to the ability to be identified as a test case with the assistance of legally sophisticated intervenors, which is out of reach of most.  This is ironic – the very litigants who most  317 Ibid at para 79. 318 Ibid at para 80. 319 Ibid at para 83. 69  need legal representation suffer from not having the legal assistance required to make claims to that assistance.  Individual litigants face barriers in the forms of high evidentiary burdens and have little guidance from the courts on which specific circumstances warrant judicial intervention to ensure A2J. The legislature could do much more in the way of funding (for counsel or disbursement costs) and assistance to enable litigants to pursue claims related to access rights in particular; they could also legislate and regulate further to formalize and spell out access rights in a more predicable fashion.  Courts could also use their inherent jurisdiction and control over process to develop streamlined ways to bring applications for A2J-related rights, as they have begun to do in a limited way with evidentiary packages for fee exemption applications.    Targeted investment in this area has flow-through benefits for civil A2J in general, as it helps to identify what claimants require A2J protection – either through cost exemptions or mechanisms that redress large inequalities between litigants – to meaningfully pursue all manner of civil claims.  This redistributive process is a necessary step in improving civil A2J and promoting Equitable A2J.   It is also well within superior courts’ equitable and inherent jurisdiction to make redistributive orders such as interim costs orders, and, given the reluctance of the legislature to invest in what is needed to make the civil justice system function as it should, the judiciary should take a more active role in addressing clear inequities that undermine their ability to vindicate claimants with meritorious legal claims.  The next chapter will consider a new conceptual approach that is useful in guiding the courts’ thinking on the kind of judicial action that would further Equitable A2J, and outlines the necessity of expanding judicial acknowledgement of the actual barriers litigants face.  70  Chapter 4: Towards Equitable A2J – An Expanded Approach 4.1 Introduction In this chapter, a new analytical framework for discussing and evaluating civil A2J will be presented.  Building on earlier chapters, it will be argued that contemporary civil A2J reforms have failed to tear down civil A2J barriers in part because of conceptual limitations of the current approach, which are piecemeal and based on conventional but often untested wisdom that may unintentionally feed into existing structural inequities embedded in the civil justice system.   To create meaningful and lasting change, it is necessary to evaluate civil A2J within a broader systemic and socioeconomic context, and to measure civil A2J through the metric of whether it contributes to existing and growing processes of inequality; in other words, whether it promotes Equitable A2J through equalizing or redistributive changes that level the rule of law playing field within the civil justice system.  The existing sociological theory of Cumulative Advantage and Disadvantage (“Cumulative Advantage” or “CA”) provides a useful framework that can be adapted to analyze, research, evaluate and design responsive civil justice system reform. This chapter begins by reviewing the literature on the state of societal level inequality in Canada, which defines the uneven ground upon which users enter the civil justice system.  This chapter will then describe the sociological theory of Cumulative Advantage, which documents how our social worlds (in domains such as work, education and health) create and reproduce structural inequality.  This review will illustrate that structural inequality is embedded in society at large and will lend support to the idea that this acknowledgement is necessary to address Canada’s A2J crisis.  It then presents a new analytical civil A2J framework that turns the focus to creating Equitable A2J through a more contextual and relational approach that draws on and extends CA theory.  This Equitable A2J framework, it will be argued, enables inquiry into the ways in which the civil justice system’s creates, reinforces or replicates structural inequalities using British Columbia’s procedural and jurisdictional structure as an 71  example.  Finally, possible interventions theorized to increase Equitable A2J will be outlined. 4.2 The Playing Field: Inequality in Canada Before theorizing about how the civil justice system might fit within the broader socioeconomic context, a brief high-level review of recent findings on inequality in Canada is warranted to ground the discussion.  As will be shown, inequality is alive and well in Canada, and in some cases, is thriving.  Though certain measures of inequality have narrowed over the past two to three decades (such as the gender wage gap), more have stagnated or worsened, including general income and wealth inequality (though by less than in the US) and health outcomes.  Across multiple measures, BIPOC people from historically disadvantaged groups and immigrants are disproportionately impacted by growing inequality.  This playing field has implications for how differential users experience the civil justice system, and in many cases, prevents them from accessing it at all.  4.2.1 Income and Wage Inequality Brzozowski, Gervais, et al. (2010) provide a broad economic picture of inequality in Canada by reviewing consumption, income and wealth inequality320.  Through analysis of Statistics Canada Research Data Centre datasets, they found that, before taking into account transfers and taxes (including social assistance, unemployment benefits, and child benefit programs), income inequality has risen substantially in Canada, doubling from 1977 to 2005.321  This was tempered by government transfers and taxes (termed “disposable income inequality” by the authors), resulting in an after-tax rate of inequality that was fairly flat from 1977 to 1990, but then which experiences “fairly mild, but noticeable” increases after 1990.322  Separately, Statistics Canada calculates the rise in  320 Matthew Brzozowski, Martin Gervais, Paul Klein, and Michio Suzuki, "Consumption, Income, and Wealth Inequality in Canada” (2010) 13:1 Review of Economic Dynamics 52 [Consumption, Income and Wealth Inequality]. 321 Ibid at 53. 322 Ibid at 53 and 71. 72  the Gini coefficient (the most common statistical measure of inequality) for after-tax income from 1990 to 2000 to be 6%, described as a “moderate” increase.323   For greater context and an idea of the income inequality gap that remains, Statistics Canada reported that “adjusted after-tax” income (after-tax income adjusted for household size) in 2018 for Canadians in the top 10% accounted for 23% of total income while the lowest 40% accounted for 20.8%.324  While government transfers have historically helped to suppress the rise in income inequality since the 70’s, the 2018 income gap remained large even after government transfers.  In addition, the rise in income inequality before government transfers provides an indirect illustration that Canada is affected by trends in the private sector that generate income inequality to begin with, such as higher incidences of low-wage and precarious employment and reduction in labour protections.   Other measures of broad, population-level income inequality are measured in many different ways.  One common example is the wage gap.  In Canada, the gender wage gap narrowed between 1998 and 2018, though on average, female employees from 25-54 earned $4.13 (or 13.3%, down from 18.8% in 1998) less per hour on average than their male counterparts.325  The reduction was primarily attributed to “change in the distribution of men and women across occupations; women’s increased educational attainment; and the decline in the share of men in unionized employment (men covered by a union or collective agreement decreased by 8.6% in this period).326  The remaining gap was due, in part, to the overrepresentation of women in part-time work and underrepresentation in growing well-paid industrial work like construction, though much  323 Garnett Picot and John Myles, “Income Inequality and Low Income in Canada: An International Perspective” (February 2005), Statistics Canada Analytical Studies Branch Research Paper Series at 9, online: https://www150.statcan.gc.ca/n1/en/pub/11f0019m/11f0019m2005240-eng.pdf?st=WKTH4hiM 324 Statistics Canada, “Canadian Income Survey” (2018) at Income Inequality subsection, online: https://www150.statcan.gc.ca/n1/daily-quotidien/200224/dq200224a-eng.htm 325 Rachelle Pelletier, “Gender Wage Gap in Canada: 1998 to 2018” (2019) Statistics Canada at highlights and 5, online: https://www150.statcan.gc.ca/n1/pub/75-004-m/75-004-m2019004-eng.htm  326 Ibid at 8, highlights. 73  of the gap was unexplained within the scope of the study (which, for example, could not analyze work experience or discrimination).327   The wage gap between Indigenous and non-Indigenous peoples in Canada is well documented and persistent.328  Lamb, Yap and Turk (2018) estimate the Aboriginal/non-Aboriginal (including First Nations, Inuit and Metis, and those terms are used in the National Household Survey) wage gap over time, finding that disparities generally narrowed from 1996-2006, but remained significant, and is most sizeable for those living on reserve.329  The authors analyze the wage gap using the 2011 NHS, finding that “Aboriginal identity males and females living on-reserve experience by far the largest earnings penalty [for full-time work, relative to non-Aboriginal counterparts]… at roughly 62% and 37% respectively; only 8% and 14% of these respective disparities were attributable to observable characteristics such as education.330  Though discrimination is not measurable in such wage-differential studies, the authors acknowledge that discrimination is a reality Indigenous peoples face and infer the potential role of labour market discrimination in the un-explained portion of the wage gap.331 Livingstone and Morton (2015) analyzed the trajectory of inequality for black families (acknowledged to be internally diverse, with 44% percent native born as of 2006) in Canada, focusing on family structure due to the fact that “studies have repeatedly shown that the socio-economic status of the family is the most significant determinant of a child’s educational attainment and his or her long-term employment and earnings in adulthood”.332  They first note that empirical evidence has consistently shown than blacks and other visible minorities earn significantly less than white Canadians, even with similar background factors, and that black families and children in Canada are more at risk than others of facing difficulties with income inequality and poverty, immigration, and racial  327 Ibid at highlights, conclusions. 328 Danielle Lamb, Margaret Yap, and Michael Turk, "Aboriginal/Non-Aboriginal Wage Gaps in Canada: Evidence from the 2011 National Household Survey" (2018) 73:2 Relations Industrielles 225. 329 Ibid at 230. 330 Ibid at 243. 331 Ibid at 245. 332 Morton Weinfeld, "Black Families and Socio-Economic Inequality in Canada" (2015) 47:3 Canadian Ethnic Studies 1 at 2 and 10. 74  discrimination, though these trends may be reversing more recently, at least for second-generation blacks.333   The authors compare the 1986 census to the 2006 census, finding that the overall socioeconomic status of most black families with children has deteriorated relative to others during this period.334  The economic gap between black households with children and other Canadian households with children grew from 1986 to 2006, even when controlling for family structure (divorced, single parent, etc.).335  Furthermore, poverty rates for recent immigrants (including new immigrant blacks) have increased since the 1970s.336 Clearly, high costs are a well-recognized and well-documented barrier to civil A2J,337 and low incomes make accessing justice more difficult.  Income inequality may also drive increasingly unequal spending on cases where parties come from disparate socioeconomic backgrounds and exacerbate existing power imbalances.  Knowing which groups are disadvantaged most by wage gaps and income inequality, such as women, Indigenous peoples, and blacks, can also help guide how the design and location of civil justice system services such as community legal clinics.  4.2.2 Wealth Inequality Meanwhile, wealth inequality remained relatively stable between 1999 and 2005, though Gini coefficients (the most common statistical measure of inequality) are approximately twice as large for wealth levels than income, indicating that wealth has been persistently concentrated (with the top 5% holding 35% of the wealth), though much less concentrated than in the US.338  Though data and methods used would differ to some  333 Ibid at 2 and 6. 334 Ibid at 18. 335 Ibid at 18. 336 Ibid at 18. 337 See, for example, Canadian Forum on Civil Justice, “What does it cost to access justice in Canada? Literature Review” (February 2010) online: http://cfcj-fcjc.org/sites/default/files/docs/2010/cost-litreview-en.pdf; Everyday Legal Problems, supra note 1; Costs of Charter Litigation, supra note 194. 338 Consumption, Income and Wealth Inequality, supra note 320 at 66-67. 75  degree, Statistics Canada found that between 1999 and 2012, average wealth increased by 80% for families in the top 20% of income-earners (holding 47% of total wealth, compared to 45% in 1999), while increasing by 38% for those in the bottom 20% (holding 4% of total wealth, down from 5% in 1999).339  This suggests that since 2005, the ending point of Brzozowski et al.’s analysis, overall wealth inequality has worsened, and remains highly concentrated among top income earners. Describing wealth inequality as an area of limited research in Canada, Maroto (2016) analyzes it through net worth and home ownership using three waves of the Canadian Survey of Financial Security (CSFS 1999, 2005, 2012).340  Maroto (2016) notes that wealth is important to economic security, as it “provides occupational and entrepreneurial opportunities within the labour market, helps to fund schooling, and confers additional advantages that include better neighbourhoods, social and cultural capital, and added protection in time of financial distress”.341  Statistics Canada notes that wealth is important to economic wellbeing, as it can be converted to cash (e.g. through a home-equity backed line of credit), and can help insulate from other economic shocks such as job loss.342   Maroto’s (2016) analysis delves deeper into who wealth inequality most affects by considering key demographic, credit and employment variables, with a particular focus on variation by Aboriginal identity, immigrant status, education level, and disability status.343  Maroto notes that, in general, Canadians have faced greater economic insecurity and less employment protections during the time period studied (1999-2012).  From 1999-2012, Maroto found that net worth distributions changed little, with the top 20% of households holding 67% of total net worth on average, while the poorest 20% controlled -0.1%.344  Furthermore, the bottom 60% saw little improvement in average  339 Sharanjit Uppal and Sebastien LaRochelle-Cote, “Changes in wealth across the income distribution, 1999 to 2012” (2015) Statistics Canada at 1, online: https://www150.statcan.gc.ca/n1/pub/75-006-x/2015001/article/14194-eng.htm [Changes in Wealth]. 340 Michelle Maroto, "Fifteen Years of Wealth Disparities in Canada: New Trends Or Simply the Status Quo?" (2016) 42:2 Canadian Public Policy 152 at 156 [Wealth Disparities]. 341 Ibid at 156. 342 Changes in Wealth, supra note 339 at 1. 343 Wealth Disparities, supra note 340 at 153. 344 Ibid at 156. 76  wealth levels (adjusted to 2012 Dollars).345  Though Maroto (2016) and Statistics Canada both use CSFS data in calculating wealth inequality, statistical analysis methods and definitions of net worth likely differed, resulting in different distributions.346 As for disadvantaged groups, Maroto found that “certain family households, particularly those with less education, those with persons with disabilities present, and those who immigrated to Canada, have seen net worth disparities increase in comparison to other more advantaged groups, even though group disparities in home ownership… have declined over time”.347 Aboriginal and immigrant families, and those with disabilities, were also less likely to be homeowners, with income being a strong predictor of home ownership.348  As of 2012, immigrant families had a median net worth of $34,000 less than non-immigrant families, while for families with a member reporting a disability the disparity was $24,000 compared to non-disabled households, and a $153,000 disparity for those with less than a BA as compared to higher education levels.349    These gaps had all widened over the 15 years studied, even after accounting for multiple demographic, employment and credit market factors;350 essentially, these groups have suffered disproportionately from rising wealth inequality, leaving them in a more precarious financial position.  This has implications where an individual with low savings (or high debt) who wishes to pursue or is required to defend litigation.  Lawyers often require clients to pay retainers up front (often in the thousands of dollars), which is an exceedingly difficult task for someone with no savings.  By contrast, a wealthier person either has savings or access to credit and is more likely to be able to make such a lump sum payment and go to court with legal assistance.  The very fact that a large segment of the Canadian population has low savings can also inform legal service provision and  345 Ibid at 157. 346 Ibid at 154-155 and Changes in Wealth, supra note 339 (which does not provide detailed methodology information). 347 Wealth Disparities, supra note 339 at 153. 348 Ibid at 159. 349 Ibid at 159. 350 Ibid at 159. 77  provides a rationale for solutions such as subsidized legal services or accessible litigation insurance.  4.2.3 Health Outcome Inequalities Health outcome inequalities provide an example of a non-economic barrier to entering and navigating the civil justice system that is disproportionately borne by certain groups.  Hajizadeh, Mitnitski and Rockwood (2016) examined socioeconomic inequalities in health in Canada.351  Reviewing a number of recent findings in the literature, subjective and objective health indicators showed that “significant inequalities in health favour the higher income groups… [and] was considerably higher than in most European countries” and that this is the case across all Canadian provinces.352  According to a recent report by the Canadian Institute for Health Information, little progress has been made in reducing income-related inequalities in health.353   Using the longitudinal National Population Health Survey (NPHS, with waves from 1994/5 to 2010/11, which excludes Indian reserves and army bases), and ‘objective’ health indicators often used in health research, the authors analyzed their relationship with educational and income related variables.354  Over the entire period, education and income-related inequalities “suggested a consistent inequality in the FI [health measure] favouring the well-educated and the rich in Canada for men and women and in all five regions of Canada”, with education-related inequalities higher for women than men over the study period.355   The authors conclude that though there has been “overall improvement in general health over the past four decades as well as substantial increases in real per capita health spending, our findings suggested that socioeconomic inequalities in health widened in  351 Mohammad Hajizadeh, Arnold Mitnitski, and Kenneth Rockwood "Socioeconomic Gradient in Health in Canada: Is the Gap Widening Or Narrowing?" (2016) 120:9 Health Policy (Amsterdam) 1040. 352 Ibid at 1040. 353 Ibid. 354 Ibid at 1041. 355 Ibid at 1043-1048. 78  Canada, especially among women”.356  Similarly, Hajizadeh, Hu, Bombay and Asada (2018) found that the health status of Indigenous adults worsened from 2001-2012, and that socioeconomic inequalities within Indigenous groups widened during this period.357  They note that Indigenous peoples in Canada experience health status that is often similar to developing countries, and are “pervasive for a range of health measures, including life expectancy, incidence of chronic diseases, rates of infectious diseases, and prevalence of substance abuse, suicide and addiction”.358  The association between health outcomes and socioeconomic status lends support to the idea that socioeconomically disadvantaged groups face multi-faceted barriers to accessing and navigating the civil justice system that may combine and interact in unique ways.  This suggests that funding or subsidized legal services, on their own, are not sufficient to address barriers; other accommodations must be considered.  In particular, health status may persist as a barrier even where a civil justice system process reduces costs, for example through streamlined and simplified procedures intended to allow a user to navigate the system on their own.  4.2.4 Consequences of Rising Inequality on Institutions Stabile and Isabelle (2018)359 provide a general overview of rising inequality in Canada and its consequences, highlighting that income held by the top 1% of Canadians has doubled since the late 1970s from 8% to 16%.  They and other researchers have raised concerns about  associations between rising income inequality and economic growth, social mobility, crime and social cohesion.360  Drawing from existing research, the authors theorized that rising inequality and specifically concentration in top level earners harms public institutions by weakening support for public programs (particularly where  356 Ibid at 1043-1049. 357 Mohammad Hajizadeh, Min Hu, Amy Bombay, and Yukiko Asada, "Socioeconomic Inequalities in Health among Indigenous Peoples Living Off-Reserve in Canada: Trends and Determinants" (2018) 122:8 Health Policy 854. 358 Ibid at 854. 359 Mark Stabile and Maripier Isabelle, "Rising Inequality and the Implications for the Future of Private Insurance in Canada" (2018) 13:3-4 Health Economics, Policy and Law 406 [Rising Inequality]. 360 Ibid at 406. 79  private alternatives exist in markets), based on high income concentration at the top driving preferences for health care services beyond what the public system aims to provide for the “median” user.361   After considering income inequality and testing results against alternative measures of inequality (such as Gini coefficients after taxes and transfers), Stabile and Isabelle found that rising income concentration between 1997 and 2009 contributed to the demand for private health services among the highest income earners at a faster rate than if income growth were distributed equally throughout the population.362  They caution that such a trend contributes to stratify healthcare into a two-tier system, with the potential to undermine the public system and increase publicly financed costs.363  Though the nature of the justice system differs (with more costs being borne by the user across the board), this raises questions about whether similar phenomenon occur within the civil justice system, which, for general civil disputes, is organized into a two-or-more tiered system (in British Columbia, monetary limits define whether a civil disputes proceeds to the CRT, Provincial Small Claims court, or Supreme Court).  An important question is whether monetary jurisdictional limits are associated with the socioeconomic backgrounds of its users; if so, does greater overall spending at higher tiers (e.g. more spending on lawyers or expert reports) have implications for how each level functions, how much time and money is invested in it, and its corresponding perceived legitimacy? Similarly, if well-resourced parties make extensive use of private civil justice system options (such as arbitration or other ADR mechanisms), what does this mean for users who cannot effectively use or afford these services364, and instead must go through tribunals and courts to vindicate their rights?   361 Ibid at 407. 362 Ibid at 430. 363 Ibid at 431. 364 On the ability of ‘everyday’ users to negotiate and settle disputes, see the Everyday Legal Problems report, supra note 1. 80  4.2.5 Conclusion The foregoing review showcases that different dimensions of inequality in Canada have persisted or worsened over the last two to three decades, though government policies have tempered some of the inequities generated by the private sphere.  Notably, race, immigration-status and gender-based inequalities are clear, and often worsening, realities in Canada. This summary provides support for the idea that the civil justice system and existing inequality have the potential to interact, with focus needed on groups who experience disproportionate effects of growing inequality.  Existing intersectional work suggests that groups that face multiple, intersectional barriers (for example, minority women, where gender and race discrimination, low wages, lack of savings, and chronic health issues might all be at play) likely experience unique and multiplicative difficulties in accessing the civil justice system beyond mere high cost.365  These considerations must inform civil A2J reform, where a one-size-fits-all approach can have unintended implications for these groups compared to the “median” and/or historically advantaged user.  A reform approach that focuses on the socioeconomic context experienced by users is more likely to design tailored solutions that are more effective in neutralizing inequality and its relationship to power imbalances.  Looking at trends in inequality over time also helps to inform how the civil justice system fits within broader societal processes – for example, does civil justice system stratification follow similar trends occurring in other public institutions and social processes that drive inequality and are argued to increase social polarization?  More specifically, rather than creating a more efficient system that is tailored to a user’s needs and the complexity of their legal problem, is it instead engaged in structural changes that feed into and reinforce civil justice system inequities?  To begin to answer this question, it is necessary to examine what drives increases in inequality and social stratification  365 For an overview of intersectionality, see Sumi Cho, Kimberlé Williams Crenshaw, and Leslie McCall, "Toward a Field of Intersectionality Studies: Theory, Applications, and Praxis" (2013) 38:4 Signs: Journal of Women in Culture and Society 785 starting at 787. 81  within systems, and to ask whether this is applicable to civil justice system.  The next sections in this chapter do this by (1) reviewing and explaining how the theory of Cumulative Advantage seeks to explain the causes of growing inequality, and by (2) developing a new framework for evaluating Equitable A2J by utilizing and adapting existing sociological research on Cumulative Advantage.  4.3 Cumulative Advantage and Disadvantage as a Broad Sociological Theory The theory of Cumulative Advantage and Disadvantage (called here “Cumulative Advantage” or “CA”) posits that social control and labeling generally causes societal advantage or disadvantage to persist, replicate and multiply, respectively, for a given individual over the life course.366  It looks for answers to the old adage that the rich get richer while the poor get poorer.367  What follows is a high-level literature review chosen to illustrate, in broad strokes, the most salient principles.  It is nowhere near exhaustive.  Its limited purpose is to provide sufficient overview to allow for a provisional consideration of how to conceptualize the civil justice system within the theory of CA.  The main purpose of this inquiry is to set the stage for answering the following question: Does the procedural and jurisdictional structure of the civil justice system operate to worsen, ameliorate or neutralize existing inequities in society, and how does it do so?  4.3.1 Types of CA Studies: Status-based & strict, exponential CA DiPrete and Eirich (2006) detail the evolution of CA theory, describing it as the process by “which favorable relative position becomes a resource that produces further relative  366 Robert J. Sampson and John H Laub, “A Life-Course Theory of Cumulative Disadvantage and the Stability of Delinquency” (1997) 7:1 Developmental Theories of Crime and Delinquency. 367 Dale Dannefer, "Systemic and Reflexive: Foundations of Cumulative Dis/Advantage and Life-Course Processes" (2018) 75:6 The Journals of Gerontology. Series B, Psychological Sciences and Social Sciences 1249 [Foundations of CA]. 82  gain” in society.368  It does this by increasing and reinforcing social stratification – the idea that people are sorted into groups or classes without much mobility between them – through feedback loops of advantage or disadvantage, making being born in socioeconomically advantaged position a key component to life-long wellbeing.  Advantages that accumulate over time are typically “key resources or reward[s]” such as cognitive development, career position, income, wealth, or health, and are those which directly influence future levels of accumulation.369   The research shows that even small initial advantages in such resources can become magnified over time.370  It has been applied in social science studies on social mobility, poverty, race, crime, education, and human development.371   The first study on CA is traced by DiPrete and Eirich to Blau & Duncan’s (1967) The American Occupation Structure, where occupational data showed that African American males suffered from cumulative disadvantage (e.g., widening disadvantage) relative to white males throughout their working lives.372  That study focused on group/status differences – in that case the interaction between racial differences and career success – rather than other broad, population-level measures of socioeconomic inequality, which is the focus of another major branch of CA theory (“strict CA”).373  The version of CA theory in The American Occupation Structure is called “path or status dependent CA” by DiPrete and Eirich, which evaluates accumulating advantage or disadvantage based on the cumulative effects of the interaction between status differences and outcomes (“interaction effects” in the literature) over time in a given social realm (e.g. jobs or health outcomes).374  Importantly, many path or status dependent CA studies have found that interactions between status (such as race or gender) and outcomes persist over time or  368 Thomas A. DiPrete and Gregory M. Eiric,. "Cumulative Advantage as a Mechanism for Inequality: A Review of Theoretical and Empirical Developments" (2006) 32:1 Annual Review of Sociology 271 at 271, online: https://www-jstor-org.ezproxy.library.ubc.ca/stable/pdf/29737740.pdf [CA and Inequality]. 369 Ibid at 271. 370 Ibid at 272. 371 Ibid at 271. 372 Ibid at 273. 373 Ibid at 273. 374 Ibid at 273. 83  across multiple stages of the life course.375  At minimum, relative advantage and disadvantage becomes cumulative because interaction events (for example, not getting a job because of discrimination) add up over time; however, such events can also have multiplicative effects over time. The other major branch, called strict CA by DiPrete and Eirich, requires observation of a process of growing and compounding cumulative advantage at the population level.  For example, studies about the growing wealth of rich people have been analyzed and found to follow statistical power law distributions, such as the Yule process, Zipf’s law, or the Pareto distribution.376  Essential characteristics of a CA process that fits into the strict model include that “exogenous chance events” have long-term consequences, and that the impact of past events grow over time.377  This goes back to the idea that small external events or circumstances can lead to exponential increases in relative advantage over time by kicking off a feedback loop whereby initial advantages provide greater opportunities and advantages which then lead to even more opportunities and advantages. Once CA is observed to occur in a given social realm (for example, the job market, educational attainment, or health outcomes), many CA academics attempt to theorize and test the underlying mechanisms that drive disparate outcomes.378  For Cole & Cole (1973) and Cole & Singer (1991), these can be social psychological, cultural or structural in origin.379  Underlying mechanisms theorized or observed in studies vary widely depending on the context.  For example, the “theory of limited difference” has been applied in career-oriented CA studies.  There, repeated negative career “kicks” in early career trajectories – even where the “kick” is initially outside the control of the individual (for example, losing a job as the result of discrimination) – negatively impacts motivation over time and has growing long-term effects;380 this could be described as a psychological factor that feeds  375 Ibid at 280. 376 Ibid at 274. 377 Ibid at 276-277. 378 Ibid at 281. 379 Ibid at 282. 380 Ibid at 283. 84  into relative disadvantage.  A similar but broader explanation for disparate outcomes in labor economics is discussion about how the growth of human capital operates, where being provided an opportunity early on can disproportionately affect ongoing investment and returns for a labor market participants.381   In the area of studying cognitive ability and development and its relationship to life outcomes, “social-multiplier” effects (for example, neighbourhood or network effects, which deal with social and geographic connections and corresponding resource advantages) is one driver discussed in the literature.382  There, the rationale for compounding advantage or disadvantage is explained through genetic and environmental factors interacting.  For example, going to a good elementary school in a nice neighbourhood might enable greater cognitive development, which in turn increases the probability of getting better grades and better opportunities down the road.  Essentially, social-multiplier effects show that being surrounded by the socially advantaged is a structural position and a major component to succeeding in the domains our society rewards and deems valuable.   DiPrete and Eirich then detail the evidence of CA found in specific life course domains, which covers: schooling, family and neighbourhood, work and careers, criminal careers, health outcomes, and, at a broader level, analysis focused on cumulative discrimination as a mechanism for racial inequality.383   4.3.2 Breadth and Dimensions of CA Theory: Inequality as Process and Outcome More recently, Dannefer (2018) traced developments in CA, describing it as a “general sociological construct with broad relevance”.384  Dannefer (2018) points out that CA theory encompasses both (1) observed patterns of increasing inequality (divergent outcomes) and (2) the underlying processes that produce diverging life trajectories, with  381 Ibid at 283. 382 Ibid at 284. 383 Ibid at 284-291. 384 Foundations of CA, supra note 367 at 1249. 85  the latter being more difficult to observe and grasp.385  According to Dannefer (2018), these engines of inequality can be thought of as “socially constituted rules and exclusionary practices [that] regulate the access that individuals have to key resources (whether education, safe working conditions, or health care), thereby affecting not only opportunities but also health, psychosocial processes and gene expression”.386  Returning to the elementary school example above, those better grades and better opportunities are also linked to better health outcomes and higher incomes.  Being born into the club (i.e., being well-positioned in social systems) early on has many linked and inter-related advantages that cluster and feed on each other, leading to higher probabilities of socioeconomic wellbeing throughout life.     It is also defined by Dannefer (2018) on a more technical level as a “systemic tendency for individual divergence in a given characteristic (e.g. money, health or status) with the passage of time”.387  These processes are “embedded in everyday social life” and can operate at multiple levels of social organization.388  Once embedded and in motion, they require conscious effort to stem and reverse – to this end, Dannefer (2018) provides examples in the literature of attempts to externally ameliorate CA processes such as progressive tax regimes (macro level), or employing a therapist to break negative family patterns such as scapegoating one sibling (micro level).389 Dannefer (2018) then reviews the various ways CA has been studied and considered.  Dannefer (2018) deems the micro level fundamental but underappreciated as it contains the foundational social process that shape an individual’s “skills, strengths, sense of identity, and potentials for action in the world”.390  One example provided is labeling theory in educational and career settings, such as the “cycle of induced incompetence” (where group dynamics reinforce whether a student or worker, for instance, is considered to be worthy of investment or a lost cause) and how it contributes to structurally imbalanced  385 Ibid at 1250. 386 Ibid at 1250. 387 Ibid at 1250. 388 Ibid at 1250. 389 Ibid at 1251. 390 Ibid at 1252. 86  flows of resources.391  At the meso level, Dannefer (2018) lists social structures that include movement through ‘role sequences’, such as the pyramidal shape of work organizations, career ladders and stratifications, and norms of upward mobility.392  Finally, the macro level concerns population-level patterns of life-course trajectories, such as the degree to which financial, health or other inequalities vary by societal conditions.393   Dannefer distills understanding sociological CA to two key underlying principles.  The first is endogenous system dynamics, where systemic social processes constitute independent forces that impact individuals yet are not reducible to the individual level; in other words, they are relational and dependent on social contexts394.  The second is life course reflexivity, which includes (1) consideration of the relative importance of social-contextual effects on individual outcomes during early life and throughout life, (2)  viewing life course ‘pathways’ as a cumulative effect of life effects, and (3) the reinforcing effect of psychosocial and socioeconomic circumstances throughout the life cycle.395  Lastly, Dannefer considers the above principles in the context of recent CA research, typifying which studies fall under a 4-cell categorization of whether one, both, or neither of the key underlying principles are present.396  These two principles cover both the temporal (growth over time) and structural/systemic (beyond individual difference) aspects of CA theory.  4.3.3 CA in Practice: Health Outcomes In a concrete illustration of CA from both an outcome and process perspective – and one that this thesis argues can inform how users of different backgrounds might experience and engage with the civil justice system – Seabrook and Avison (2012) provide a conceptual overview of the theory in the context of health outcomes.  In  391 Ibid at 1253. 392 Ibid at 1253. 393 Ibid at 1252-1253. 394 Ibid at 1254-1255. 395 Ibid. 396 Ibid at 1256-1258 87  Socioeconomic Status and Cumulative Disadvantage Processes across the Life Course: Implications for Health Outcomes397, they note that while socioeconomic status is one of the most reliable predictors of health disparities, public debate continues to focus on ‘lifestyle approaches’ as solutions to improve health.398  Seabrook and Avison then delve into common explanations in the literature evaluating why socioeconomic status is a health predictor,  which include that: (1) individuals in lower socioeconomic groups usually experience greater levels of chronic stress (related to poor living conditions, low job security, financial difficulties), which itself is detrimental to health; and (2) that those of lower socioeconomic status tend to engage in riskier health behaviours.399   In the authors’ view, and drawing from principles in life course research, these explanations are limiting and tend to place too much emphasis on ‘blam[ing] the victim’, advocating instead for an analysis based on “fundamental social causes” theory.400  Here, it is socioeconomic status itself that shapes exposure to psychosocial and biomedical risk factors, which in turn shapes behaviour.401  Such fundamental social causes “involve resources such as knowledge, money, power, prestige, and beneficial social connection that determine the extent to which people are able to avoid risks and adopt protective strategies”.402  For example, high socioeconomic status groups are better able to take advantage of new knowledge that decrease morbidity and mortality.403  These fundamental social causes shape health outcomes in a similar way, it is argued, that different users are able to leverage socioeconomic resources to meaningfully engage the Civil justice system.  This also ties into Diprete and Eirich’s (2006) discussion of social-multipler effects, where such benefits accrue and grow over time.    397 Jamie A. Seabrook and William R. Avison, "Socioeconomic Status and Cumulative Disadvantage Processes Across the Life Course: Implications for Health Outcomes" (2012) 49:1 The Canadian Review of Sociology 50. 398 Ibid at 51. 399 Ibid at 51. 400 Ibid at 51. 401 Ibid at 51-52 402 Ibid at 52. 403 Ibid. 88  Importantly, the inequalities that result and persist over the life course are often rooted in early life circumstances given its important role in brain development.404  Though individual difference operates throughout life, structural social surroundings help to shape these very things (through things like gene expression and psychological effects) and/or impose external barriers to positive life outcomes and social mobility.  In social realms where CA operates, the idea that merit or personal choice alone determines outcomes is seriously undermined. Turning back to Seabrook and Avison (2012), CA means that health disparities grow over time, “mostly because of differential exposure to risk factors as well as access to protective resources” and “exposure clustering” where risk factors combine for those with worse outcomes.405   Seabrook and Avison (2012) then detail the four principles underlying the life course research that have enabled the discovery of growing CA in health outcomes throughout life: (1) Long-term temporal patterns (examining longer periods of time, through, for example, longitudinal studies); (2) the intersection of biography and history (historical and social context influences individual outcomes); (3) linked lives (social networks matter), and (4) human agency (individuals make their own decisions, but sociocultural factors may limit the extent of agency activated).406  These four principles, with some adaptation, are useful parameters for evaluating civil justice system outcomes.  4.3.4 Conclusion The foregoing review raises a number of key and overlapping themes that are relevant to how users experience the civil justice system.  Given that CA theory is broad sociological theory covering multiple dimensions and magnitudes of inequality, there is no end to the potential applications to the civil justice system.  However, for the purposes  404 Ibid. 405 Ibid. 406 Ibid at 52-63. 89  of this thesis, which emphasizes procedural and jurisdictional structure and how those are treated in civil A2J reform, the following points are most relevant: (1) The idea that group and status differences can lead to cumulative advantages or disadvantages through a combination of interdependent factors, many of which are outside the control of the individual; (2) That social-network effects and structural access to resources (i.e., access is shaped by social position) affects outcomes and have compounding benefits, with those in better social positions better able to leverage resources; and (3)  That CA processes are patterns that become embedded in social systems and may require external interventions to interrupt or neutralize (for example, the tax regime in Canada operating to suppress widening inequality driven by the private sphere).  The following section will theorize how these points can be adapted to study, evaluate and reform the civil justice system to increase Equitable A2J.  4.4 Equitable A2J and CA Theory: An Expanded Approach 4.4.1 Meagre Gains in Civil A2J In earlier chapters, contemporary understandings and aims of civil A2J in Canada and British Columbia were examined.  What is clear from that analysis is that major participants – including reform groups, courts, and the legal academy – have a relatively robust view of the aims of civil A2J and, on occasion, an understanding that significant and multi-faceted barriers exist.  In reform reports and more recent seminal A2J decisions, the Supreme Court of Canada has recognized that these obstacles exist for the disadvantaged, marginalized, low income and even middle-income Civil justice system users (and would-be users).407  It is properly recognized as a crisis.  However, in multiple ways and at multiple levels, the normative goals espoused by justice  407 For example, see Everyday Legal Problems, supra note 1 and TLA (2014), supra note 198.  90  stakeholders are undermined, not consistently applied, or are otherwise lost in translation, leading to expansive visions but meagre gains in civil A2J. But, as Cappelletti and Garth’s (1978)408 decades-old summary of A2J efforts attest to, these ideas are not new – if anything, they are cyclical, mirroring our broader political narratives and ideologies about public and private concerns409 and the role of government, as can be seen by the rise and fall (and rise again?410) of legal aid in British Columbia.411  The legitimacy problem this raises is that the justice system is viewed in legal mythology as independent, rising above political whims through fealty to fairness, the Constitution, and the rule of law412.  Extending beyond the internal logic of formalistic legal analysis of such principles, the law in action413 continues to uncover how far the civil justice system falls below these weighty goals, but much work remains to be done to fully understand the extent of the problem.  Trends over the past two to three decades in the civil justice system – from defunding of legal aid in British Columbia (austerity measures aid were originally introduced in 1997414), to jurisdictional stratification and streamlining (including increasing the monetary jurisdiction of Small Claims courts and the creation of the CRT), to privatization (such as  408 M. Cappalletti and Bryant Garth, “Access to justice: The newest wave in the worldwide movement to make rights effective” (1978) 27 Buffalo Law Review 181.; at 185-223 Cappalleti and Garth describe three waves of A2J as of their time of writing in the late 70s that attempt to address costs, relative party capability, and so on: (1) legal aid, judicature or public salaried attorneys; (2) representation of diffuse interests through developments such as private attorneys general, class actions, and public interest actions and counsel; and (3) includes but is not limited to advocacy with a focus on all institutions, devices, personnel and procedures used to process and prevent modern disputes. 409 Ibid; for a review of Legal Aid in BC, see Roads to Revival, supra note 76 at 18-22. 410 BC Legal Clinics News Release, supra note 77. 411 See generally, Roads to Revival, supra note 76. 412 Preamble to Charter, supra note 12: “Whereas Canada is founded upon principles that recognize the supremacy of God and the rule of law” 413 For some examples of persisting barriers and the status of A2J, see: Everyday Legal Problems, supra note 1; 2018 Rule of Law Index, supra note 8; Julie Macfarlane, Katrina Trask, and Erin Chesney, “The Use of Summary Judgment Procedures Against Self-Represented Litigants: Efficient Case Management or Denial of Access to Justice?” (November 2015). National Self-Represented Litigants Project. online: https://representingyourselfcanada.com/wp-content/uploads/2016/12/NSRLP-The-Use-of-Summary-Judgment-Procedures-Against-SRLs.pdf [Summary Judgment against SRLs]. 414 Roads to Revival, supra note 76 at 20. 91  greater use of arbitration)415 have occurred alongside broad patterns in Canada that have seen worsening or stagnating inequality that have hit historically marginalized groups particularly hard.  At the same time, it is becoming increasingly clear that formidable civil A2J barriers persist.  Though there is little doubt that many stakeholders are committed to the cause of A2J, and that some reforms have made the civil justice system easier to access and navigate, the difficulty in evaluating the net effects of reform leaves open many questions about the impact and efficacy of modern A2J reform. A major obstacle to evaluating advances in A2J and whether it promotes Substantive A2J416 is the complicated nature of a successful outcome; for a given case in an adversarial legal setting, the fact that there is usually one winner and one loser says little about whether an adjudicative process is functioning properly.  Given the complexity of our modern system of laws, the legal academy, lawyers and the judiciary can argue ad nauseum whether a given legal decision is decided correctly without tangibly undermining the legitimacy of the judicial process.  Determining who does not even get to engage the system is a  another major challenge (and a clearer A2J issue), and the topic of much A2J attention, though the Everday Legal Problems report advances our understanding of the broad scope of exclusion from the civil justice system.417 Access to Justice BC’s A2J Triple Aim goes some way in defining the goals of A2J and has been endorsed by a number of important justice sector organizations in the province.  It breaks down A2J aims into three broad categories, which are useful for discussion in this chapter: (1) Improving population access to justice, (2) Improving user experience, and (3) Improving costs.418  A2JBC, among others, also advocates for the importance of shifting to an evidence-based A2J measurement framework and provides  415 See Privatization, supra note 79, in particular Farrow’s account of Modern National Initiatives starting at page 89; as outlined in Chapter 2, reforms beginning with the 1996 CBA Task Force Report, supra note 72, sought efficiency (often accompanied by privatization) in civil courts.  416 Described in various ways by stakeholders, but to A2JBC, it “encompasses all the elements needed to enable people to identify and manage their everyday legal needs and address their legal problems, seek redress for their grievances, and demand that their rights be upheld.” 417 Everyday Legal Problems, supra note 1. 418 Access to Justice BC, “The A2J Triple Aim”, online: https://accesstojusticebc.ca/the-a2j-triple-aim/  92  guidance on how to measure each of the components of the Triple Aim.419  Similarly, the Chief Justice of the Supreme Court of Canada Richard Wagner’s remarks at the October 2018 Access to Justice: A Societal Imperative at the 7th Annual Pro Bono Conference in Vancouver captures the holistic nature of Substantive A2J: “Access to justice” can mean many things. Having the financial ability to get legal assistance when you need it. Being informed of your right to counsel when your liberty is at stake. Having courts that can resolve your problem on time. But it also means knowing what tools and services are available, and how to get to them. It means knowing your rights and knowing how our legal systems work. It can even mean seeing people like yourself represented in all parts of the legal system. And it means having confidence that the system will come to a just result – knowing you can respect it, and accept it, even if you don’t agree with it. Ultimately, it is about getting good justice for everyone, not perfect justice for a lucky few. It’s a democratic issue. It’s a human rights issue. It’s even an economic issue…420  These are all important and necessary goals that encompass what it means to have Substantive A2J and a meaningful civil justice system outcome (whether successful on legal arguments or not).  However, a limitation to our current approach and frameworks such as A2JBC’s or The Action Committee’s JDGs is that it does not undertake a systemic overview of the civil justice system; instead, these initiatives focus on discrete actions intended to increase A2J.  The primary drawback of this is that it under-appreciates or ignores an important and foundational question: is inequitable Substantive A2J embedded within the structure of the civil justice system itself?   If this is the case, it is argued, piecemeal A2J initiatives – even with efforts to measure their impact – are unlikely to turn the tide and break the dominant mold of the civil justice system.  For instance, even if more population-level access is created, but those individuals enter a system that is becoming ever-more stacked against them due to other private or public actions, then it cannot be said that the A2J problem has been meaningfully improved.  The review of modern A2J reform literature done earlier in this thesis showcases that focus is predominately on the disadvantaged legal user without a corresponding discussion of the degree to which the legally advantaged benefit from the  419 A2J Measurement, supra note 2. 420 A2J Societal Imperative, supra note 10.  93  existing civil justice system.  The accounting of A2J reflects only one side of the balance sheet, enabling the illusion of progress to remain.   One reason a more contextual approach is needed stems from the nature of the civil justice system itself: to decide (through negotiation, settlement, mediation, or adjudication) legal disputes between two or more users; more broadly, it plays an important role in shaping and allocating legal rights and privileges throughout society.  A legal dispute is an inherently social and relational task: the rights of one depend on the rights of the other(s), and, if a dispute proceeds to adjudication, yet another actor becomes involved with the power and authority to decide who is entitled to what.   And yet we focus the bulk of our energy in the A2J discourse on those who do not succeed within the civil justice system (either through denial of entry or through barriers in meaningful engagement) without equal attention on those who best leverage what the civil justice system has to offer.  If those privileged users – the “lucky few” alluded to by Chief Justice Wagner421 – continue to reap disproportionate (and, if CA theory applies, potentially compounding) benefits, has the civil justice system become more substantively fair and accessible?  Equitable A2J is a moving target that depends on both ends of the spectrum, for reasons that will be more fully explained in the next section.  4.4.2 Cumulative Advantage Theory and the Civil Justice System This is where our earlier review of Cumulative Advantage theory becomes relevant to discussion of the civil justice system.  A major foundational question that has not been directly addressed or studied in Canada is the degree to which civil justice outcomes (encompassing actual outcome and nature of experience) vary by socioeconomic position in society, except to the extent that we know that cost is a large barrier to entry.422  While it is clear that the external playing field in Canada is unequal because of persisting and/or  421 Ibid. 422 Some research and studies look at this question indirectly, such as Summary Judgment and SRLP’s, supra note 289. 94  worsening societal inequality described earlier in this chapter, we have limited insight into how this interacts with the civil justice system as an inherently social institution.423   For example, are the benefits gained by the legally advantaged (those with the resources, knowledge, and money to navigate the informal and formal aspects of the civil justice system) also increasing disproportionately compared to A2J gains for low income and/or “median” users due to phenomenon like social stratification and social network effects?  What are the cumulative effects of repeat interactions for the legally advantaged compared to the effects for the legally disadvantaged, who might get little opportunity to leverage the system at all, or be alienated by it on the occasions they do attempt to engage?  Are historically disadvantaged groups, like BIPOC individuals, women and Indigenous peoples affected in intersectional ways? It is important to remember that all these questions concern factors that are external to the actual merit of a legal dispute; similarly, as CA research shows, the socioeconomic resources an individual litigant can bring to a claim is hardly a reflection of individual ability or effort in life.  If established, each goes show that adjudicative decision-making is arbitrary in the sense that it does not conform to notions of the rule of law424 upon which our very system of constitutional governance is founded.  This makes remedying these externalities important priorities in ensuring the legitimacy of the civil justice system. CA theory – in all its various applications at the micro, meso and macro levels – can assist in conceptualizing, evaluating, and studying civil justice system processes to provide the evidence needed to answer these questions.  This evidence can then guide responsive and tailored reform aimed at equalizing CA outcomes through a combination of system change or ‘external’ intervention, thereby moving the needle closer to Equitable A2J and the normative goal of the rule of law.  423 In the context of legal systems more generally, Julia Black (1997) has advocated for considering legal systems through a ‘social paradigm’, which may have interesting linkages to the CA literature on social network effects, as both discuss the effects of social, cultural, symbolic and economic capital.  See: Julia Black, "New Institutionalism and Naturalism in Socio‐Legal Analysis: Institutionalist Approaches to Regulatory Decision Making” (1997) 19:1 Law & Policy 51. 424 Particularly, one component of the rule of law discussed in Christie, supra note 161, is that “law is supreme over officials of the government as well as private individuals, and thereby preclusive of the influence of arbitrary power” 95  This thesis has focused on the procedural and jurisdictional structure of British Columbia’s civil justice system and in particular on general civil adjudicative bodies that deal with a range of socioeconomic issues (the CRT, Small Claims, and BC Supreme Court).  This choice is based on the general premise that such courts deal with issues that are a reflection of our broader socioeconomic realities, and in that way, provides an fruitful site of inquiry to compare broader patterns of inequality (often driven by CA processes) with civil justice system outcomes.  While the applications of CA theory are not limited to this context, it is a good place to start in developing a better theory of what is needed to promote Equitable A2J. It was also chosen because of continuing trends in stratification, where the jurisdiction of superior courts is narrowing and general civil claims are sorted by the monetary value of claims.425  The ostensible rationale for stratification is more efficient use of court resources and tailoring venues to the simplicity of claims; in other words, they are intended to increase A2J.426  Analyzing this structure through a CA lens raises a number of questions about whether court stratification actually achieves these goals, such as: 1. Does the division by monetary jurisdiction have the effect of sorting users based on socioeconomic status?  Otherwise stated, is there a statistical association between level of civil adjudication body and socioeconomic status? 2. If yes, does this create a lopsided system of precedent, whereby more advantaged users at superior courts derive disproportionate benefit from the common law system and the shadow of the law (e.g. greater certainty in transactions and settlement negotiations).  Similarly, is this worsened by layers of litigation such as procedural barriers like restrictive statutory standards of review set for the Civil Resolution Tribunal? 3. If it can be shown that legal representation acts as an equalizing force in the courts (where both parties are represented), does disallowing lawyers or other legal assistance at the Civil Resolution Tribunal serve to advantage users who otherwise  425 For a review of recent changes in general civil claim jurisdiction, see Chapter 2.  426 See Chapter 2 for a more on these assumptions. 96  have more social capital (e.g. benefit from social-network effects, have more resources, or are repeat users), thereby actually exacerbating power imbalances? These are but a few of the ways that the structure of the civil justice system is hypothesized to act as a CA reinforcing or generating process that may unintentionally feed into inequitable civil justice outcomes.  Even if surface-level accessibility is increased by creating simplified procedures and forums, there may be deeper structural implications for civil justice, A2J and the rule of law that are more difficult to observe and remedy once embedded in the fabric of the system. As noted in the foregoing review of CA theory literature, these embedded processes require intervention to ameliorate, particularly as societal-level inequality in Canada appears to be here to stay.  This can occur either through system change (for example, designing procedures that help to level the playing field) or external redistributive efforts to suppress CA processes (in the context of civil adjudicative mechanisms, providing quality legal representation to all, if it can be shown that this flattens power imbalances)427.    4.5 Conclusion Ultimately, if Equitable A2J is our aim – which is no less than what is required for robust rule of law that allows an equal opportunity to vindicate legal rights in Canada428 – then systemic review and study of the civil justice system is necessary.  Despite A2J initiatives by a range of justice system stakeholders, the socioeconomic context of stagnating or worsening inequality is a powerful and pervasive driver of societal advantage.  The purpose of an expanded Equitable A2J framework that uses CA theory is to uncover just how immune – or not – the civil justice system is to these forces that have been found to operate in social realms as far-reaching as education, careers, and our public health system.  Study in this area will help to inform tailored reform efforts and  427 Some research is underway to seek to answer this question, where the Action Committee is undertaking a longitudinal study to study the impact of representation on civil justice outcomes; see Legal Service Interventions, supra note 111. 428 For commentary on this, see then Chief Justice McEachern’s dissent in John Carten, supra note 150. 97  will bring to light the level of public investment required to make the civil justice system function in accordance with its mandate in society. The next chapter operationalizes this framework by undertaking a mixed methodology study of British Columbia’s civil justice system that draws on existing CA theory in both its rationale and design.  98  Chapter 5: Mixed Methodology Research – Evaluating Equitable A2J 5.1 Introduction The preceding chapter sets out the argument for evaluating and studying A2J within the civil justice system through the lens of CA theory in sociology, which is concerned with systemic inequalities and the processes that create and reinforce them.  Mixed methodology research – the combination of qualitative and quantitative research – is a good candidate for this type of inquiry as it has the flexibility to observe both processes and outcomes and the linkages between them.429   Understanding what level and type of systemic change is required to meaningfully promote Equitable A2J in the civil justice system requires a better understanding of the current status of all elements of A2JBC’s Triple Aim framework, which captures both process and outcome.  These elements are: (1) Population access to justice, (2) User experience, and (3) Costs.430 Using British Columbia as the site of inquiry, the mixed methodology study conducted in this chapter touches on some aspect of all these, and provides evidence that will help to guide future research and in designing responsive reforms that promote Equitable A2J.   In addition, understanding the interactions between socioeconomic status and the civil justice system is an integral part of the A2J cause.  This understanding works to ensure that reforms do not do unintentional harm to those who face the greatest barriers.431 The study in this chapter has been designed with the importance of this factor in mind.  It does this by drawing from existing work in CA, with a focus on testing whether these key tenets of CA theory432 apply to the civil justice system: (1) The idea that group and status differences can lead to cumulative advantages or disadvantages through a combination of interdependent factors, many of which are outside the control of the individual;  429 M Fetters, L Curry and J Creswell, “Achieving integration in mixed methods Designs—Principles and Practices” (2013) 48:6pt2 Health Services Research at 2134-2135. 430 Access to Justice BC, “The A2J Triple Aim”, online: https://accesstojusticebc.ca/the-a2j-triple-aim/. 431 As has been more fully theorized throughout this thesis. 432 These were more fully outlined in the previous chapter. 99  (2) That social-network effects and structural access to resources (i.e., access is shaped by social position) affects outcomes and have compounding benefits, with those in better social positions better able to leverage resources; and (3)  That CA processes are patterns that become embedded in social systems and may require external interventions to interrupt or neutralize (for example, the tax regime in Canada operating to suppress widening inequality driven by the private sphere).   This chapter is organized into four parts.  It first outlines the methodology employed in the study.  The second  part describes results of a quantitative case outcome analysis of a selection of cases from the British Columbia Supreme Court, Provincial Court and Civil Resolution Tribunal levels in 2018, which was undertaken to (1) uncover the relationship between user outcomes and inter- and intra-forum differences in procedural and jurisdictional structure433, including the impact of factors such as gender, user type, and whether a party is represented.  The third section summarizes and analyzes qualitative interview data of low income service providers operating out of the Greater Vancouver Area, in order to understand the impact of procedure, jurisdiction, forum and legal representation on legal experiences and outcomes for low income and other disadvantaged groups.  Focus on low income groups was chosen because, based on existing CA theory, they are hypothesized to face the greater number of interrelated barriers to success (in experience and legal outcome), and because there is little systemic data on these populations.434  Lastly, in part four, the results of the quantitative and qualitative analysis are integrated, and implications of the study are outlined.   433 As outlined in Chapter 2, procedural and jurisdictional change, in particular widening jurisdiction of tribunals and small claims court, has been a major trend in modern A2J reform in British Columbia.  434 The Everyday Legal Problems report, supra note 1, discusses legal needs, but focuses on the ‘median’ user, and does not directly investigate the impact of socioeconomic status. 100  5.2 Methodology 5.2.1 Introduction Research methodology choices are informed by how a researcher sees the world.435  The decision to conduct a mixed methodology study, which combines quantitative (statistical analysis of 2018 civil case outcomes in British Columbia) and qualitative (interviews of low income legal service providers) research, reflects the author’s perspective that the civil justice system does not provide the necessary data and accountability mechanisms to evaluate its own aim to provide effective and affordable access to justice.  To determine the degree to which Equitable and Substantive civil A2J exists, or is responsive to ongoing reform, this researcher argues that data and analysis analogous to the research on the social determinants of health (careful adaptation would have to be made to reflect the differences between the nature of legal decision-making and health outcomes) would have to exist and be possible, which would require the collection of demographic data of those who engage the formal civil justice system.  As this kind of data is not presently collected by the government or other researchers, and is an undertaking too wide in scope for this master’s level thesis project, the choice of methodology and data source selection described in this section is based on pragmatism, a school of thought interested in finding the best ways to gain understanding based on the information, resources, time and inter-subjectivities available to the researcher.436  Data collection decisions were guided by relevant legal theory and existing research, documentary review of civil A2J Reform literature, and experiences working as a civil litigation lawyer in British Columbia. As mentioned, the civil justice system does not collect data that would enable direct analysis of the relationship between socioeconomic status and participation in the civil justice system.  In order to elucidate the connections between socioeconomic status and substantive access to justice, it is necessary to collect and analyze different forms of  435 David Morgan, “Paradigms Lost and Pragmatism Regained: Methodological Implications of Combining Qualitative and Quantitative Methods” (2007) 1:1 Journal of mixed methods research 48 at 49. 436 See generally, Lisa D. Pearce, "Mixed Methods Inquiry in Sociology," (2012) 56:6 The American Behavioral 829. 101  accessible data that capture multiple aspects of navigating through the Civil justice system.   Through integration of these various pieces, we can begin to comprehend if, how and how much successfully navigating the civil justice system differs across users of different socioeconomic status, and between jurisdictions and procedures.  Mixed methods research is well-suited to the “investigation of complex, multilevel processes” and can answer questions about the causality and magnitude of observed effects (quantitative analysis) as well as how and why such effects occur (qualitative analysis).437  These findings can then be linked to dominant civil A2J narratives (for example, the implicit idea that simplified procedures will increase A2J across all groups) and used to evaluate whether such claims hold water.   Using the typologies proposed by Leech and Onwuegbuzie (2009), the study can be categorized as a partially mixed concurrent equal status design.438  It is partially mixed as the quantitative and qualitative analyses are designed to both complement each other (e.g. mutually reinforce and confirm findings) and to access different angles of the access to justice problem.  Between the qualitative and quantitative components of the study, neither takes precedence, and the aim is to use the findings of each to evaluate the promises of civil A2J as fully as possible. Statistical analysis of reported case outcomes serves to achieve greater understanding of how and to what extent different types of users (individuals, businesses, government, other institutions) engage with and benefit from the civil justice system, but does not allow differentiation between low income, middle income and high income individuals.  Because of this, and guided by the hypothesis that civil A2J reforms have not achieved salient improvements for low income and marginalized populations, qualitative interviews of low income providers are utilized to answer elements of access to justice that cannot be studied through accessible quantitative information, such as the reasons  437 Fetters, M., Curry, L., and Creswell, J., (2013) Achieving integration in mixed methods Designs—Principles and practices, Health Services Research 48 (6pt2) at 2134-2135 [Integration in Mixed Methods]. 438 "An Inclusive Framework for Conceptualizing Mixed Methods Design Typologies: Moving Toward Fully Integrated Synergistic Research Models" (Thousand Oaks: SAGE Publications, Inc, 2010.) SAGE Handbook of Mixed Methods in Social & Behavioural Research, edited by Abbas Tashakkori and Charles Teddlie. 2nd ed., at 14-15.  102  why outcomes might differ, and on the affective experience of engagement with the civil justice system, which, this researcher argues, is a component of Substantive A2J. The study has features of both exploratory and explanatory research.  It seeks to explore and uncover new questions and issues that will guide theory development, future research, and more responsive A2J reforms, while the methods of analysis and decisions about data collection are guided by existing hypotheses about how and why British Columbia, and Canada as a whole, struggles to provide substantive civil A2J despite ongoing efforts at reform.  5.2.2 Quantitative Approach439 A major element of Modern A2J Reform has focused on attempts to streamline and simplify formal adjudicative processes.440  Broadly speaking, this includes but is not limited to the creation or expansion of specialized tribunals, Small Claims court, the Civil Resolution Tribunal (CRT), and the re-writing of the Supreme Court Civil Rules (SCCR) in 2010.  From there, procedural rules and jurisdictional limits have been tweaked and modified, often to guide more and more claims towards tribunals and small claims jurisdictions and to limit appeals and review of first-instance decisions.  The rationale for these changes include increasing civil A2J and promoting judicial economy. This research posits that the intersections of procedure and jurisdiction is an under-appreciated area of law reform that has structural and systemic implications for substantive legal rules and the search for A2J.  Analyzing cases on a larger scale, in order to escape the narrow confines of the internal logic of a judicial decision, is the best strategy for understanding, illuminating and uncovering the importance of procedural and jurisdictional reforms.  Given the primacy of these changes in modern A2J reform, understanding the impact of these structural changes is important to understand past structural changes and to guide the direction of future reforms.  439 See Appendix B for a list of cases used to build the case outcome database. 440 See Chapter 2 for an overview of modern A2J reforms. 103  What are the implications for substantive justice of splintering, ever-changing, and proliferating civil adjudicative bodies, each with a distinct set of rules?  If pursuing a claim in one forum versus another results in a different substantive outcome, is the rule of law (the idea that the law applies equally to all) compromised?  These are but a few of the questions that remain unanswered and unaddressed by the judicial system, which justifies court reform by offering rationales for the benefits of creating simplified and/or specialized adjudicative bodies without explicitly considering the broader context of the justice system and without developing accompanying accountability mechanisms.  The first step in answering these questions is to determine whether engaging separate adjudicative bodies results in disparate outcomes, and whether particular patterns exist on an intra or inter-forum basis that are not explained by substantive legal rules (the traditional metric by which court decisions are meant to be decided).  Outcome analysis studies have been undertaken in multiple areas of legal research, including immigration decisions in Canada.441  Some of the questions asked in these studies include whether outcomes statistically vary by gender or by whether a party is represented or not.442  In addition, statistical case analysis has been used in the US to study whether litigation-promoting or litigation-stifling reforms do in fact change litigation rates.443 For this study, the selected year was 2018, and the selected forums were the BC Civil Resolution Tribunal, BC Provincial Court (Small Claims) and Civil decisions of the BC Supreme Court.  The rationale for choosing these bodies (compared to, say, a specialized tribunal like the Residential Tenancy Branch) is based on the fact that monetary limit is the primary mechanism that determines jurisdiction ($5,000 and under for the CRT, excepting strata disputes; $5,001-35,000 for Small Claims court; $35,001 and above for  441 For a few examples in Canada, see Sean Rehaag, "The Role of Counsel in Canada's Refugee Determinations System: An Empirical Assessment," (2011) 49:1 Osgoode Hall Law Journal 71-116. Online: http://digitalcommons.osgoode.yorku.ca/ohlj/vol49/iss1/3; Jon B. Gould, Colleen Sheppard, and Johannes Wheeldon, “A Refugee from Justice?  Disparate Treatment in the Federal Court of Canada,” (October 2010) 32:4 Law & Policy 454486 online: http://oppenheimer.mcgill.ca/IMG/pdf/Gould_Sheppard_Wheeldon_article.pdf 442 Ibid. 443 Stephen Burbank and Sean Farhang, "Litigation Reform: An Institutional Approach" (2014) 162:7 University of Pennsylvania Law Review 1543, online: https://www-jstor-org.ezproxy.library.ubc.ca/stable/pdf/24248343.pdf?refreqid=excelsior%3Afe03c34da95691af2a78ab4426461215 104  Supreme Court) rather than area of law.  This makes for a comparatively direct inter-jurisdictional comparison of a variety of civil claims.  Each forum still does have notable differences in the make-up of claims that come before it, and in the selection of cases that get reported publicly.  These differences, which make a 1:1 comparison between forums impractical, are factored in when interpreting, analyzing and qualifying results.  Given the fact-specific nature of judicial outcomes, and the differences between forums, it would be fraught with subjectivity to attempt to decide whether individual cases are correctly or similarly decided across forums.  However, analyzing a sample of cases can be used to determine whether any patterns emerge at each jurisdictional level, and whether patterns between jurisdictions differ to a significant enough degree to warrant further investigation. The approach taken to the quantitative study was exploratory in nature.  A random sample of publicly reported decisions [200 cases from BC Supreme Court, 46 cases from Provincial Court, and 224 cases from the Civil Resolution Tribunal] was collected.  Each decision was reviewed, coded and entered into a database.  The variables selected for each forum reflect the differences in structure and complexity of each (the British Columbia Supreme Court, for example, has many more options for types of proceeding than Small Claims or the CRT) and the level of detail provided in the published decisions. Completed excel databases were then uploaded to Stata.  Associations between variables were analyzed to explore whether outcomes had significant correlations to any of the recorded independent variables (or a combination of variables, such as combining type of user with legal representation).  When an association was found, magnitude and importance was assessed by considering the statistical relationship in the context of the findings that surfaced from qualitative interviews, documentary review, and theory research.  Inter-forum differences and similarities were assessed from a statistical perspective, but then considered within the broader context of the modern civil justice system and civil A2J reform.  Statistical relationships between independent variables and outcome alone serve to provide inflection points for consideration, analysis, and, much of the time, recommendations for further research.  105   5.2.3 Qualitative Approach444 Lawyers who work with low income populations in Vancouver were chosen as participants for a variety of reasons.  Given the focus on procedural and jurisdictional reform, civil litigation lawyers, with their specialized training and repeat use of the civil justice system, are best positioned to understand and observe systemic and patterned effects of procedure and jurisdiction on legal outcomes.  They are the mediating factor between low income users and the civil justice system who hold the knowledge and experience to communicate systemic trends.  Lastly, they are the most accessible participants, as contact information is often readily found online. The decision to choose Vancouver, rather than British Columbia as a whole, reflects the exploratory and preliminary nature of the mixed methods study.  Lawyers who primarily serve low income populations are concentrated in Vancouver, with such services few and far between in other jurisdictions (although this is now changing with the 2019 announcement of new funding for poverty law clinics in BC, which have begun opening up445).  Furthermore, using a more targeted sample is more likely to yield clear patterns in the interview data.  From there, it can be confirmed through further research (either by triangulating existing secondary source data or through conducting expanded qualitative studies) whether such patterns are confined to the civil justice system in Vancouver or whether they may be illustrative of broader experiences across British Columbia. The primary drawback of selecting lawyers as participants rather than low income users of the civil justice system are that the experiences of low-income users are filtered and interpreted rather than being studied and told directly.  In addition, claims where lawyers are never contacted or involved are missed in the analysis, although there already exists a body of research discussing A2J barriers that preclude any involvement in the civil justice system.446   444 See Appendix A for a list of interview questions used to guide questioning. 445 BC Legal Clinic News Release, supra note 77. 446 See Everyday Legal Problems, supra note 1; Ab Currie, “A National Survey of the Civil Justice Problems of Low and Moderate Income Canadians: Incidence and Patterns,” (April 2005) Department of Justice, Canada online: 106  The study also necessarily generalizes the experience of low-income people accessing the civil justice system in an attempt to discover broader structural barriers, though it is recognized that such a population is diverse in its experiences, backgrounds, and needs.  Further qualitative study that includes low-income civil justice system participants would be required to understand phenomenon like intersectional effects and the true affective experience of navigating the civil justice system as a member of a marginalized population.  The researcher hopes to engage in such case studies in future research to complement and build upon the findings of this mixed methods study. A list of potential participants was developed by compiling a list of organizations that describe serving low-income and marginalized populations’ legal needs.  From there, contact information was gathered from the organization’s website, which often provided direct contact information for staff lawyers.  E-mail invitations for a one-hour interview describing the nature of the research were sent to individual lawyers.  Where the website provided only a general contact e-mail inbox, the e-mail invitation was prefaced by a request to forward the invitation onto the staff lawyers of the organization.  If no response was received, one additional follow-up request was sent approximately two weeks later. The research plan originally contemplated in-person interviews, however, COVID-19 restrictions mandated by the UBC Office of Research Ethics limited interviews to telephone or videoconference at the time interviews occurred.  Telephone interviews were arranged with participants who indicated their interest in participating. Interviews were guided by a series of pre-planned topics but conducted in an open-ended and conversational fashion.447  The intention of this strategy was to build rapport with participants and allow them to guide the conversation and questions based on their experiences and what stuck out to them as important.  In areas where participants had a  http://www.cfcj-fcjc.org/sites/default/files/docs/2006/currie-en.pdf; Tracy Tan for Ipsos Reid, “Legal Services Society of BC Problems of Everyday Life (2013),” (May 2013), Legal Services Society BC online:  https://www.lss.bc.ca/assets/aboutUs/reports/legalAid/lssEverydayProblems07_13.pdf; Denice Barrie, Karima Budhwani, and Wayne Robertson, “Poverty Law Needs Assessment and Gap/Overlap Analysis Report,” (November 2005) The Law Foundation of British Columbia online: http://www.lawfoundationbc.org/wpcontent/uploads/PovertyLawNeedsAssessment_NOV05.pdf. 447 The interview script can be found in Appendix A. 107  lot to say, follow up questions were asked beyond pre-planned topics.  Participants were allowed to speak at length during anecdotes or tangents, which often provided the most valuable and insightful data.  Where participants worked in specialized areas or only in specific adjudicative forums, topics listed in the interview guide that were not relevant to the participant’s professional work were skipped. The approximately 1-hour phone interview with each participant was tape-recorded using an external recording device.  The recordings were then uploaded, transcribed, then analyzed and coded using NVivo software.  Further analysis was done by contextualizing the interview data within the quantitative case outcome analysis, documentary reviews, theory research, and the researcher’s own experiences working as a lawyer within British Columbia’s civil justice system. In writing up, summarizing, and analyzing the interview data, findings were anonymized using a variety of techniques.448  Different strategies had to be employed to ensure anonymity, as the pool of potential participants was small and operates within a specific and identifiable professional community.  Because of this, certain anecdotes have been generalized, though attempts to preserve the integrity of the data (as it relates to the purposes of conducting the qualitative study, including consideration of the implications for reform) have been made.   Where possible and relevant, longer narrative passages were selected to communicate the perspectives of lawyers serving low income populations in their own voices.  5.2.4 Integration449 Integration was achieved by analyzing and listing the subjects that came up in qualitative interviews.  Those topics, and the data within each, were then considered in  448 For an overview of anonymizing techniques that were drawn from, see B Saunders, Kitzinger J, and Kitzinger C, “Anonymizing interview data: challenges and compromise in practice” (2015) 15:5 Qualitative Research 616. 449 For a general overview of integration principles, see: Fetters, Michael D., Leslie A. Curry, and John W. Creswell. "Achieving Integration in Mixed Methods Designs—Principles and Practices." Health Services Research 48, no. 6pt2 (2013): 2134-2156. 108  light of the findings of the statistical case analysis (for example, in comparing interview data on Judicial Review with the statistical information on choosing that form of proceeding in BC Supreme Court) and of the broader documentary review of Civil A2J Reform literature to determine whether findings were consistent, complementary, or contradictory. In certain areas, the topic covered during qualitative interviews, or, of a variable analyzed in the quantitative analysis, did not have a counterpart for integration.  The approach in this case was to have the quantitative or qualitative analysis, as applicable, fill the data gap of what the alternative method did not provide in order to get as complete a picture of the effective of procedural and jurisdiction civil A2J reform as possible.  5.2.5 Validity, Reliability & Methodological Integrity As discussed earlier in this thesis, civil A2J is an amorphous and difficult to pin down concept.  At a basic level, it includes the ability to enter and meaningfully engage with the civil justice system and to achieve fair outcomes.  What goes into these components and how to meaningfully measure them is an under-developed area in the civil A2J reform literature.  Studies like Tribunals for Diverse Users (Australia)450 and the Everyday Legal Needs Survey (Canada, 2018)451 have scratched the surface of these questions.  Within the law itself, concepts like the rule of law and procedural fairness touch on these issues, but are tangential and limited to a myopic view of individual cases and reliance on established precedents, without the ability to consider the broader context required to understand whether equitable and substantive civil A2J exists population-wide. This mixed methods study attempts to ensure the validity, reliability and methodological integrity of the quantitative and qualitative data by utilizing accepted data collection techniques, such as random sampling (with a large enough sample size to confidently generalize findings), sound statistical techniques, coding interviews for  450 Genn, H. et al. “Tribunals for Diverse Users.” (2006) DCA Research Series 1/06, London, Department for Constitutional Affairs. 451 supra note 1. 109  patterns and themes, and checking results against existing research and other forms of data.  However, the mixed methods study is limited in size and scope both in the breadth of civil justice issues it touches on and in its geographic reach; for this reason, it is considered exploratory in nature Findings of this study should be considered preliminary findings that point to issues for further study and reform, and which provide indicators of structural issues that should not be ignored.  Its ultimate aim is to begin to develop base-level data and analysis on how to develop accountability mechanisms for civil A2J reforms.  Direct and well-resourced study of formal engagement with the civil justice system, administered with the backing of the Civil justice system itself (for an example of one administered in the UK, see Tribunals for Diverse Users452) would be the ideal strategy for validating the findings of this mixed methods study.  5.3 Quantitative Analysis 5.3.1 Introduction Three separate case outcome databases were prepared to explore the relationship between procedure, forum and jurisdiction within British Columbia’s civil justice system.  The primary goal of inter- and intra-forum comparison is to gain a greater appreciation of the impact of streamlining and efficiency – either through the creation of adjudicative bodies like Small Claims courts and the Civil Resolution Tribunal or through procedures like Summary Trials – on outcomes and A2J.  Other A2J concerns can be investigated as well, such as the effects of legal representation, gender453 (considered to be a dimension of socioeconomic status) and user type on success in litigation. Outcome analysis allows for the identification of systemic patterns that otherwise go unnoticed and can help foster accountability by uncovering who formally benefits from civil justice system reforms sold  452 Tribunals for Diverse Users, supra note 49. 453 Note that gender was determined by looking at the names of parties, the traditional gender assignment of names, and whether the parties were referred to as a particular gender within the text of the decision.  This approach has a small potential margin of error and is also limited in its ability to recognize and acknowledge non-gender-conforming users. 110  as broad A2J initiatives.  It is one small piece in answering a big question: who is served by the civil justice system in British Columbia? Caution is required in interpreting correlations between external variables and reported legal outcomes.  A strong association is not a conclusive indicator that the civil justice system is failing to decide cases on their legal merits, though this is one potential explanation.  Litigation behaviour is complex and there are many factors that might influence the strength of cases that come before courts and tribunals, and which of those decisions are reported454. However, A2J is not only about the courts’ ability to decide cases based on legal merit.  It is also about the intelligibility and perceived legitimacy of civil justice system processes.  If “everyday” users, or specific classes of users, enter the civil justice system only to face failure that falls short of their expectations of justice and fairness, there are implications for civil justice institutions even where such cases as decided correctly according to the law on the books.  Outcome analysis can help point to groups likely to be disaffected by the civil justice system.  In addition, the body of reported judicial decisions – and whose interests those serve and represent – impacts the shadow of the law and the evolution of the common law. The British Columbia Supreme Court (BCSC) database contains a random sample of 200 (of an estimated 700-800 total reported civil cases that year455) reported decisions from the Vancouver and New Westminster court registries in 2018.  These registries were chosen as they most directly cover litigation arising in the Greater Vancouver Area (GVA) and to complement qualitative interviews conducted of legal service providers based in the Vancouver area.  This was chosen as the dominant site of inquiry as inequality is most prevalent in large urban centres, and as such, systemic patterns associated with discrepancies in a user’s legal resources are hypothesized to be most pronounced.456  454 All Civil Resolution Tribunal determinations are reported, but not all BCSC or BCPC decisions are. 455 The estimation is roughly based on the level of non-civil cases (family, criminal, etc.) that were encountered while selecting the random sample. 456 Mahem Abedi, “Rise of income inequality in Canada ‘almost exclusive’ to major cities: study” (14 July 2017) https://globalnews.ca/news/3599083/income-inequality-canada-cities/; Francis Fong, “Income Inequality in Canada: The Urban Gap” (2017) CPA Canada, online: https://www.cpacanada.ca/en/the-cpa-profession/about-111  The British Columbia Provincial Court – Small Claims (BCPC) database contains a sample of 46 reported decisions from 2018, which represents all reported decisions from the study year.  Limiting the database to GVA registries was not practicable given the already small sample size. The British Columbia Civil Resolution Tribunal (BCCRT) database contains a 224 case sample size (out of an estimated 500-700 reported decisions that year) of Small Claims jurisdiction decisions.  The BCCRT operates exclusively online and is not based on a registry system, and so decisions come from British Columbia as a whole.  5.3.2 Users of General Civil Tribunals & Courts: General Characteristics of the Data Table 1: Users of General Civil Tribunals and Courts BCSC Success Rates Plaintiff Party Types Defendant Party Types Plaintiff Win 46.5% Corporation (1 or more) 21.5% Corporation (1 or more) 23.5% Mixed Result 19.5% Individual(s) 62%  [23% F | 28.5% M |10.5% multiple ind.] Individual(s) 32.5%  [9% F | 10.5% M | 17.5% multiple ind.] Defendant Win 34.0% Government 3.0% Government 19.5%     First Nations 2.0% First Nations - 70% decided by male judges, 30% by female       Non-Profit, Society, Other Institution 5.5% Non-Profit, Society, Other Institution 2.6% Other Multi-Party 6.0% Other Multi-Party 22.0% Total Cases in Sample: 200 BCPC Success Rates Claimant Party Types Defendant Party Types Claimant Win 41.3% Corporation 30.4% Corporation 30.4%  cpa-canada/key-activities/public-policy-government-relations/economic-policy-research/income-inequality-canada  112  Mixed Result 23.9% Individual Female 19.6% Individual Female 15.2% Defendant Win 34.8% Individual Male 30.4% Individual Male 19.6% 63.04% decided by male judges, 36.96% by female Multi-Party Ind. 15.2% Multi-Party Ind. 10.9% Strata Corp. 4.3% Multi-Party Gov. 4.4%   Other/Multi-Party 19.6% Total Cases in Sample: 46 BCCRT Success Rates Applicant Party Types Respondent Party Types Applicant Win 51.4% Corporation 31.7% Corporation 30.4% Mixed Result 10.3% Individual Female 21.0% Individual Female 22.3% Respondent Win 38.4% Individual Male 40.2% Individual Male 30.8% 85.71% of cases decided by female adjudicators, 14.29% males Other 7.1% Multi-Party Ind. 6.3%   Government 0.9% Other/Multi-Party 9.4% Total Cases in Sample: 224 Table 1: Users of General Civil Tribunals and Courts  5.3.2.1 BCSC In the BCSC sample, plaintiffs (or equivalent457) had a success rate of 46.5%, defendants (or equivalent) succeeded 34% of the time, and 19.5% of decisions were of a mixed result458.  Success rates varied some by type of proceeding459, but not to significant  457 Such as petitioners or appellants. 458 A mixed result was determined by taking into account various factors, such as the judge’s costs determination (e.g. no costs to either party is one indicator of a mixed result); a rough guide of a plaintiff being granted 25%-75% of quantum or orders sought was used as a starting point.  Professional legal judgment along with the judge’s comments on the nature of success was applied in determining whether success was mixed in complex cases, such as those seeking a mixture of types of relief or involving counterclaims. 459 Proceeding types were: applications (86, 43%), 7 appeals from master/registrar/CRT/small claims (3.5%), 28 petition hearings (14%), 5 summary judgment applications (2.5%), 15 summary trials (7.5%), and 59 trials (29.50%) 113  degrees.  For example, trials having a plaintiff success rate of 44.07%, defendant success rate of 27.12%, and a mixed result rate of 28.81%.  Summary trial success rates were fairly evenly split at 46.67% for plaintiffs and 40% for defendants.  For the five summary judgment decisions in the sample, defendants were successful in having claims dismissed 4 out of 5 (85%) occurrences, with the remaining decision being of a mixed result. Plaintiffs (or equivalent) were 21.5% corporations460, 2% Indigenous groups, 3% government, 62% individuals461, 5.5% non-profits/societies/other institutions, and 6% mixed multi-party plaintiffs.  Defendants (or equivalent) were 23.5% corporations, 32.5% individuals462, 19.5% government(s), 2.55% non-profits/societies/other institutions, and 22% mixed multi-party defendants.  70% of all cases were decided by male judges and 30% were decided by female judges.   In 86% of cases, both parties were represented by counsel.  In 6.5% of cases, only the defendant had counsel, and in 7.5% of cases, only the plaintiff had counsel.  Individual plaintiffs were most likely to be unrepresented at 8.70% of the time for individual female plaintiffs (4 cases) and 12.28% of the time for individual male plaintiffs (7 cases).  For all individual-type (single or multi party) plaintiffs, the unrepresented rate was a total of 9.73% (11 cases), compared to an unrepresented rate of 6.25% for corporate plaintiffs (2 cases). The same general trend holds for defendants, with individual defendant females unrepresented in 2 cases (22.22%), individual males in 2 cases (10.52%), a mixture of individual defendants in 4 cases (13.79%), and in 2 out of 4 cases where multiple individual males were defendants (50%).  In total, individual-type (single or multi-party) defendants went unrepresented at a rate of 18.18% (10 cases), compared to corporate defendants who were unrepresented only 6.90% of the time (2 cases).     460 Includes single corporate plaintiffs or cases involving multiple corporate plaintiffs. 461 Broken down as follows: 23% individual female, 28.50% individual male, 10.5% multi-party composed of individuals. 462 Broken down as follows: 9% individual female, 10.5% individual male, 17.5%. 114  5.3.2.2 BCPC In the BCPC sample, claimants had an overall success rate of 41.3%, defendants had a 34.78% success rate, and cases were of a mixed result in 23.91% of cases.  For trials, the success rates were 46.88% (Claimant), 34.38% (Defendants), and 18.75% (Mixed result), while for applications they were 28.57%, 34.38% and 35.71%, respectively. Claimants were broken down into the following categories: corporations (30.43%), individual females (19.57%), individual males (30.43%), multi-party individuals (15.22%), and strata councils (2 occasions, 4.34%).  Defendant categories were: corporations (30.43%), individual females (15.22%), individual males (19.57%), multi-party government (2 occasions, 4.35%), multi-party individual (10.87%), and multi party mixed (19.6%).  Cases mostly fell into the following categories: contract (43.48%), negligence (19.57%), and personal injury (10.87%).  36.96% of cases were decided by female judges, and 63.04% of cases were decided by male judges. Both parties had counsel in 17.39% of cases, while neither party had a lawyer 30.43% of the time.  Only the defendant had counsel 41.30% of cases, while in 10.87% of cases only the plaintiff was represented.  44.44% of individual female claimants were represented (4/9 total cases) and 28.57% of corporate claimants had counsel (4/14), while individual male claimants only had representation in 1 case out of 14 cases (7.14%).  Corporate defendants were most often represented (in 71.43% of cases), with individual male defendants represented 44.44% of the time (4/9), and female defendants represented in 57.14% of cases (4/7).   5.3.2.3 BCCRT In the BCCRT sample, applicants had an overall success rate of 51.35%, respondents won 38.39% of the time, and decision results were mixed 10.27% of the time.  The vast majority of cases involved no lawyers (96.88% of all cases), while in 2.68% of cases the defendant had a lawyer, and in one decision only the plaintiff had a lawyer. 31.7% of all applicants were corporations, 20.98% were individual females, and individual males were 40.18%.  Respondents fell into the following categories: 115  corporations (30.36%), individual females (22.32%), individual males (30.80%), multi-party corporate (1.34%), multiple individuals (6.25%), multi-party mixed (5.80%), strata corporations (4 cases, 1.79%), government (2 cases, 0.89%), and other (1 case, .45%). 85.71% of cases were decided by female adjudicators with the remaining 14.29% decided by males.  21 cases (9.38%) proceeded despite the non-compliance of the respondent with the CRT process (e.g. they failed to respond, participate, or otherwise comply), and in such cases, the applicant was successful in their claim 90.48% of the time (19/21 occurrences).  5.3.2.4 Discussion There are some notable patterns across the three samples.  Corporations are consistently players at all three levels of general civil justice adjudication mechanisms in British Columbia, making up approximately a third of claimant-type and defendant-type users.  Participation falls below a quarter at the BCSC level, likely given the broader mandate of the superior court and the wider variety of claims and matters that it adjudicates (where, for example, government decisions are more frequently challenged).  Another possible explanation is that more powerful corporations (those more likely to be in superior court with claims involving larger sums of money) make greater use of out-of-court dispute resolution or adjudication processes such as mediations or arbitration and end up in court less often.463 Individual males are consistently more litigious than females and make up an increasing share of overall claimants at lower-level civil adjudication bodies: from 28.50% at BCSC to 30.43% at BCPC to 40.18% at BCCRT (vs. females at 23%, 18.57% and 22.32%, respectively).  For greater context, in both Vancouver and British Columbia, females make up slightly more than 50% of the population.464  Individual males in the BCSC and BCPC sample also participate in civil justice processes without representation  463 e.g., they are able to take advantage of the “Multi-Option” Civil justice system described in Chapter 2. 464 As of 2016 Census, Statistics Canada, online: https://www12.statcan.gc.ca/census-recensement/2016/dp-pd/prof/details/page.cfm?Lang=E&Geo1=CMACA&Code1=933&Geo2=PR&Code2=59&Data=Count&SearchText=vancouver&SearchType=Begins&SearchPR=01&B1=All&TABID=1  116  more often than females, with this finding more apparent at the BCPC as more participants are unrepresented.  Financial-resource considerations are an unlikely explanation for this divergence in representation as women in British Columbia experience greater levels of poverty and make less money than their male counterparts.465 The reasons why a party is or is not represented are varied, and may include available financial resources, the strength of  their claim (e.g. whether a lawyer is willing to take on their case), and confidence in navigating civil justice processes without a lawyer.  The balance of these factors are likely to be different for claimants and defendants, with more trade-offs and strategy involved in deciding whether to bother pursuing a claim in court as compared to a defendant who is forced into the litigation process.  This could help to explain why representation levels vary more by gender for claimants compared to defendant-types (where resources may play a greater role in whether to get counsel to defend against a claim), particularly at the BCPC level where overall variability of representation is highest.   The low BCPC representation rate of only 1 out of 14 individual male claimants (7.14%, compared to 44.44% or 4/9 individual female claimants), combined with the disproportionate share of individual males (40.18%) proceeding to adjudication at the BCCRT (compared to 22.32% of females) suggests that males are more willing or able to utilize these simplified civil justice system adjudication processes that are designed with the unrepresented litigant in mind (and, in the case of the BCCRT, disallows counsel by default).  Pre-trial settlement behaviour might also explain this phenomenon; however, without knowing gender-based rates of who files claims and who proceeds all the way to adjudication, the full picture is missing. These findings have implications for the design of simplified processes and the trend toward expanding the jurisdiction of Small Claims court and the Civil Resolution Tribunal.  They raise the question of whether individual male claimants benefit disproportionately  465 For general context, see BC CEDAW Group, “Women’s Rights in British Columbia” (2016), online: http://www.westcoastleaf.org/wp-content/uploads/2016/10/BC-CEDAW-FINAL-2016.pdf; Gender Wage Gap, supra note 325. 117  these procedural and jurisdictional changes that are intended to increase A2J for all.  Studying multiple years of cases and/or expanding sample sizes would help to confirm whether these patterns hold consistently over time. 5.3.3 The Effects of Representation on Civil Justice Outcomes Table 2: Representation and Outcomes BCSC   Both Represented Only Plaintiff Only Defendant Neither Represented Plaintiff Win 44.77% 93.33% (14/15) 15.38% (2/13) 0 Mixed Result 21.51% 6.67% (1/15) 7.69% (1/13) 0 Defendant Win 33.72% 0% 76.92% (10/13) 0 Total Cases in Sample 172/200 cases 15/200 cases 13/200 cases 0/200 cases BCPC   Both Represented Only Claimant Only Defendant Neither Represented Claimant Win 50% (4/8) 60% (2/5) 26.32% (5/19) 50% (7/14) Mixed Result 25% (2/8) 40% (3/5) 10.53% (2/19) 35.71% (5/14) Defendant Win 25% (2/8) 0% 63.16% (12/19) 14.29% (2/14) Total Cases in Sample 8/46 cases 5/46 cases 19/46 cases 14/46 cases     BCCRT   Both Represented Only Applicant Only Respondent Neither Represented Applicant Win 0 0 0% 53% (115/217) Mixed Result 0 0 16.67% (1/6) 10.14% (22/217) Respondent Win 0 <.01% (1/224) 83.33% (5/6) 36.87% (80/217) Total Cases in Sample 0/224 1/224 cases 6/224 cases 217/224 cases Table 2: Representation and Outcomes  118  5.3.3.1 BCSC Most parties in the BCSC sample were represented, making the unrepresented sub-sample small.  Where both parties had counsel (172/200 cases sampled), plaintiffs (or equivalent) were successful in 44.77% of cases, defendants won 33.72% of the time, and 21.51% of cases had mixed results.  When only the plaintiff (or equivalent) had counsel, they were successful 93.33% of the time, or in 14/15 cases (the remaining case was a mixed result).  When only the defendant had a lawyer, they won in 76.92% of cases (10/13), with one mixed result and two losses.  Proportions were similar whether a female judge or a male judge decided the case. For Summary Judgment procedures, where both parties had a lawyer (3 cases total), the defendant was successful in having the claim dismissed on 2/3 occasions, with one mixed result.  When only the defendant had a lawyer (in 2 cases), the claim was dismissed both times.  No unrepresented defendants brought a Summary Judgment application in the sample.  A total of 15 Summary Trials in the sample all involved cases where both parties were represented, and the distribution of success was similar to the overall sample (7 plaintiff wins, 6 defendant wins, and 2 mixed results).  5.3.3.2 BCPC Unlike the BCSC, it is uncommon for both parties to be represented by counsel in Small Claims court.  In the 8/46 cases where both were, the claimant won on 4 occasions (50%), the defendant twice, and a mixed result occurred in the remaining 2 cases.  Where only the defendant was represented (19/46 cases), they won 63.16% of the time (12 cases), while the claimant had success 26.32% of the time (5 cases), as a mixed result occurred 10.53% of the time (2 cases).  Where only the claimant was represented (5 cases), they won on 3 occasions and lost the remaining 2 cases.  Cases with no lawyers involved (14 cases) followed this distribution: 7 claimant wins (50%), 2 defendant wins (14.29%), and 5 mixed results (35.71%).  119  5.3.3.3 BCCRT 217 out of 224 cases at the BCCRT involved no lawyers (96.88%), as leave is required to have representation.466  In one case, the applicant had representation, but lost their case.  On six occasions, respondents had representation, and of these, they succeeded 5/6 times (83.33%), and had partial success in the remaining case.  5.3.3.4 Discussion In cases where only one party is represented by counsel, there is a clear positive association between success and representation across all three sampled civil justice forums.  The association is most pronounced at the BCSC, where being against an unrepresented litigant means an outright win in 85.71% (24/28) of sampled cases.  The association tempers at the BCPC, with an outright win in 62.5% of cases (15/24), though outright losses were low at 20.83% (5/24).  Outright wins against unrepresented parties at BCCRT were 71.43%, but given the small sub-sample of such cases, this number is less likely to be representative of all BCCRT cases. Similar to the findings of the Self-Represented Litigants Project (which found a 96% success rate against SRL’s on Summary Judgment applications brought in Ontario in 2014)467, defendants with lawyers were successful against SRL’s in 2/2 cases in the sample.  A subsequent search of all 2018 BCSC summary judgment decisions468 identified 22 cases involving summary judgment applications.469  Of these, 6 applications were made against self-represented litigants, with a success rate of 5/6 (83.33%).  In contrast, where both parties had lawyers, such applications were successful on 2/22  466 With the exclusion of motor vehicle accident cases, which did not come under the jurisdiction of the CRT until 2019 (after the study year). 467 Summary Judgment against SRLP’s, supra note 289 a 8. 468 Using search parameters of “summary judgment” and limited to Vancouver/New Westminster registries, then manually reviewed to determine whether the case involved a summary judgment application, whether the parties were represented, and whether the application was successful. 469See the following neutral citations for the cases identified: 2018 BCSC 281, 613, 209, 236, 354, 356, 393, 816, 679, 981, 1108, 1649, 1418, 1518, 1787, 1709, 1921, 1725, 1891, 1903, 2048, and 2310   120  occasions (9.09%), with a mixed result in 4 cases, and the remaining 10 summary judgment applications resulting in dismissal. Analysis about self-represented litigants is challenging because the population includes both those who cannot afford lawyers, those who choose not to have lawyers, and those where a lawyer in unwilling to take their case.  As such, the association between representation and success may be the result of many potential factors, including that unrepresented litigants might: (1) bring claims with less legal merit (either because they do not have access to good legal advice or ignore advice that they do receive), (2) are less effective at presenting their claims, or (3) that there may be bias against unrepresented litigants.   Regardless of the cause(s), the power imbalances that result are troubling for a civil justice system that has prioritized and communicated attempts to make the system more friendly for self-represented litigants while simultaneously failing to provide a robust system of legal aid (or otherwise ensuring affordable legal representation) for those who would choose to have counsel.  If retaining counsel was more accessible, the population of self-represented litigants would be more limited to classes of frivolous or vexatious litigants, which would simplify identification and management of SRL-related issues.  In addition, the more self-represented litigants have confusing, harsh, or unsatisfying experiences within the civil justice system, the more likely they are to question the system’s legitimacy. While it should come as no surprise that lawyers are more adept at navigating the civil justice system, and contribute to a user’s success, these findings highlight that this advantage is persistent and occurs across forums.  A2J initiatives and narratives that gloss over the complexity of our civil justice system and that underplay the role of counsel should be carefully scrutinized.  5.3.4 The Effects of User Types on Civil Justice Outcomes    121  Table 3: Users and Success BCSC Plaintiff Success % by User Type Defendant Success % by User Type Plaintiff Success % by Judge Gender Avg. Success 46.5% (93/200) Avg. Success 34% (68/200) Male Judge Avg: 44.29% Single Corp. 62.5% (20/32) Single Corp. 24.14% (7/29) Ind. Female 36.36% (12/33) Ind. Male 45.61% (26/57) Ind. Male 35% (7/21) Ind. Male 51.16% (22/43) Ind. Female 47.83% (22/46) Ind. Female 44.44% (4/9) Female Judge Avg: 51.67% *success = outright win Government 41.67% (10/15) Ind. Female 76.92% (10/13) Multi-Party Gov. 53.33% (8/15) Ind. Male 28.57% (4/14) Total Cases in Sample: 200 BCPC Claimant Success % by User Type Defendant Success % by User Type Claimant Success % by Judge Gender Avg. Success 41.3% (19/46) Avg. Success 34.78% (16/46) Male Judge Avg: 44.83% Single Corp. 50% (7/14) Single Corp. 50% (7/14) Ind. Female 0% (0/4) Ind. Male 42.86% (6/14) Ind. Male 22.22% (2/9) Ind. Male 55.56% (5/9) Ind. Female 22.22% (2/9) Ind. Female 28.57% (2/7) Female Judge Avg: 35.29% *success = outright win Ind. Female 40% (2/5) Ind. Male 20% (1/5) Total Cases in Sample: 46 BCCRT Applicant Success % by User Type Respondent Success % by User Type Applicant Success % by Adj. Gender Avg. Success 51.34% (115/224) Avg. Success 38.4% Male Adjudicator 43.75% (14/32) Single Corp. 66.67% (48/72) Single Corp. 45.59% (31/68) Ind. Female 33.33% (1/3) Ind. Male 42.22% (38/90) Ind. Male 28.99% (20/69) Ind. Male 30.77% (4/13) 122  Ind. Female 48.94% (23/47) Ind. Female 36% (18/50) Female Adjudicator 52.6% (101/192) *success = outright win Government 100% (2/2) Ind. Female 50% (22/44)   Ind. Male 44.16% (34/77) Total Cases in Sample: 224 Table 3: Users and Success  5.3.4.1 BCSC The average outcome rates at the BCSC are: plaintiff success at 46.50% (44.07% for full trials and 51.16% for applications), mixed results at 19.50%, and defendant success at 34%.  The following observations indicate which user categories under- or over- performed this average by a notable margin (and where user sub-sample sizes were larger than only a few cases).   Individual corporate plaintiffs outperformed the overall average and were successful in 62.50% of cases (20/32), unsuccessful in 34.38% of cases (11/32), and achieved a mixed result on one occasion.  The success rates drops to 52.38% (11/21) when not against other corporate-type defendants, with most of these cases being made against multi-party government, multi-party institutional, or multi-party mixed categories.  Against other corporate-type defendants, individual corporate plaintiffs succeeded in 81.82% of cases (9/11). Multi-party corporate plaintiffs underperformed this average, winning 36.36% of the time (4/11 cases), and losing 63.64% of the time (7/11 cases).  However, 5 of such cases were against other corporate parties, with the remaining broken down as follows: 1 against an individual male, 3 against multi-party mixed, 1 against multi-party institutional, and 1 against society/non-profit/other institution.   In defending claims, corporate defendants win 24.14% of the time (underperforming the overall average of 34%), with cases against them being brought primarily by other corporate entities (10/29) and individual plaintiffs (12/29).  Government and multi-party government defendants outperform average defendant success rates at 41.67% (10 cases) and 53.33% (8 cases) respectively. 123  Individual male and female plaintiffs fall close to the overall average at 45.61% (26/57 cases) and 47.83% (22/46 cases) success rates respectively.  Against corporate-type defendants, success rates go up to 53.85% (7 cases) and 40% (4 cases).  Against other individual-type defendants, individual females were successful 60% (12/20) of the time, with males successful in 47.62% of cases (10/21). In general, male judges pronounce judgment in the following proportions: 44.29% plaintiff success, 20.71% mixed result, and 35% defendant success.  For cases decided by male judges, individual female plaintiff success dropped to 36.36% (12/33), with a mixed result in 24.24% of cases (8/33) (with one case against an individual male), and a loss 39.39% of the time (13/33) (with two cases against an individual male and one case against another female).  Individual male plaintiffs fared better, winning 51.16% of cases (22/43) (with 1 of these cases against being against other individual males and two against an individual female), achieving a mixed result 27.91% of the time (12/43) (with one of these being against an individual male and one against an individual female), and losing only 20.93% of cases (9/43) (with 3 of these being against another individual male).   By contrast, female judges pronounce judgment at these rates: 51.67% for plaintiffs, 16.67% mixed results, and 31.67% defendant success.  Female judges decided in favour of individual female plaintiffs in 76.92% (10/13) of sampled cases (with two of these against individual males and one against an individual female), with losses for the remaining three cases.  They decided in favour of male plaintiffs 28.57% (4/14) of the time, arrived at a mixed result 21.43% (3/14) of cases (with two of these against other individual males), and found against them 50% of cases (7/14) (with one of these against an individual female).  5.3.4.2 BCPC Average BCPC outcome rates in the sample were: 41.30% claimant win (19/46, 46.88% at trial and 28.57% on applications), 23.91% mixed result (11/46), and 34.78% defendant win (16/46).  Individual males won 42.86% of the time (6/14, with five of these decided by a male judge) with mixed results and losses split at 4 cases each (28.57%).  In only one mixed result case the individual male claimant was represented.  As 124  defendants, individual males won 2 cases (22.22%, 1 represented case), lost 3 (33.33%, 1 represented case, 2 cases claimant represented), and achieved a mixed result in 4 (44.44%, 2 represented cases, 3 claimant represented).  Individual female claimants won only 22.22% of cases (2/9, with one of these against another female), lost 66.66% of the time (6/9, with one of these against another female, and all four decisions made by male judges in individual female claimant cases falling in this category), and achieved a mixed result on one occasion.  When represented by counsel, individual female claimants won one case (25%), lost two cases (50%), and achieved a mixed result in one case (25%).  Both female claimant wins were determined by a female judge.  Female defendants won 2 cases (both when represented), lost 4 (2 when represented, though 3 of these involved a represented claimant), and achieved a mixed result in 1. Corporate claimants had the highest success rate at 50% (7/14, 4 represented), losing in 28.57% of cases (4/14), and achieving a mixed result 21.43% of the time (3/14).  When not against a corporate defendant, success rates increase for corporate claimants (to 54.55%, 6 cases), individual females (40%, 2 cases), and individual males (50%, 5 cases).  Corporate defendants also enjoy the highest rate of success compared to the overall average of 34.78% relative to individual males and females470 at 50% of cases (7/14), which decreases to 45.45% (5/11) when corporate claimants are removed from the analysis.  Government defendants (both multi-party government) lost one case and won one case.  5.3.4.3 BCCRT Average BCCRT outcome rates in the sample where: 51.34% (115/224) applicant win, 10.27% (23/224) mixed result, and 38.39% (86/224) respondent success.  Corporate applicants outperformed at a 66.67% (48/72) win rate, losing 22.22% of the time (16/72), and achieving a mixed result in 11.11% of cases (8/72).  Individual male applicants won  470 The remaining claimant/defendant categories contain only a small number of cases relative to the total sample size. 125  in 42.22% of cases (38/90), lost in 51.11% of cases (46/90), and achieved a mixed result in only 6.67% of decisions (6/90).  Individual female applicants won 48.94% (23/47), lost 34.04% (16/47), and achieved a mixed result in 17.02% (8/47) of cases.  Given that male adjudicators decided only 32/224 of cases in the sample, gender-based outcome analysis is of limited value.  However, male adjudicators were less likely to find in favour of an applicant (at 43.75% vs. 52.60% for female adjudicators) and more likely to make a mixed result determination (18.75% vs. 8.85%). Against individual female respondents (50 cases total), corporations were successful less often (53.85%, 7/12), while individual male applicants were more successful (61.11%, 11/18).  Against individual male respondents (69 cases total), corporate success increased to 63.64% (21/33), and individual female success shot up to 72.73% (8/11).  Against corporate respondents (68 total cases), corporate applicants were successful 72.68% of the time (14/19), female applicants won in 53.85% of cases (7/133), while individual males fared poorly, winning 27.27% of cases (9/33) and losing 60.61% of cases (20/33). Government respondents were successful in both cases in which they were involved.  Corporate respondents also outperformed other groups, winning 45.59% of the time (compared to a 38.39% average).  Individual male respondents succeeded in 28.99% of cases (20/69) and individual female respondents in 36% of cases (18/50).  Individual male respondent success rates drop against individual female claimants to 18.18% (2/11 cases), losing 72.73% of the time (8/11 cases).  A similar but tempered phenomenon occurs with individual female respondents, who win 33.33% of the time against individual male claimants (6/18 cases) and outright lose 61.11% of the time (11/18).  Corporate respondents succeed against individual male claimants 60.61% of the time, compared to 38.46% (13/47) of the time against individual female claimants.  5.3.4.4 Discussion Outcome-based analysis based on user type is an indirect way to assess if and how socioeconomic power imbalances might play out in different forums (each with different procedures and representation levels).  It may also be a reflection of how substantive 126  laws themselves benefit different groups (e.g. a user-type may win more often because the law favours their interests), further complicating the analysis.   The user categories that are available for analysis are rudimentary but may provide some indicator of a party’s legal capital (including access to resources/legal advice, familiarity with the civil justice system, and social network-based advantages), with large corporate, government and institutional entities hypothesized to be best positioned.  Gender-based and representation-based interactions can also be evaluated, for example, by asking whether having representation mediates user-based power imbalances.  However, given the indirect nature of the analysis, and the limited size of sub-samples when multiple interactions are taken into account (particularly at BCPC level), trends and results should be treated with some caution and considered as preliminary findings for further study or investigation.  Larger sample sizes and investigating multiple study years would help confirm patterns in the data. A few patterns did arise.  In general, corporate claimants and defendants do better than average in the samples.  This advantage is most tempered in the BCSC sample, with a few possible explanations.  Corporate entities are more often engaged in multi-party litigation at BCSC, which complicates any question of power imbalances at play and likely involves more complex underlying legal claims.  Individual claimants did well against corporate defendants in the BCSC sample, though sub-sample sizes were relatively small.  However, given that the majority of parties at the BCSC have the resources to retain legal representation, a plausible explanation is that the average BCSC user has sufficient legal capital to effectively navigate the courts regardless of user-type and/or having a lawyer might mediate existing power imbalances.  Of course, it is well documented that A2J barriers mean that many legally disadvantaged people do not make it to courts at all.471 Corporate advantage is clearer at the BCPC and BCCRT levels, where relative advantage persists when multiple types of interactions are taken into account.  Corporate parties do particularly well against individual males at the BCCRT level, which may be a  471 See, for example, Everyday Legal Problems, supra note 1. 127  reflection of underlying case types or the litigation behaviour of individual male BCCRT users (who, as noted earlier in this chapter, are overrepresented and appear to be more willing or able to utilize civil justice systems without representation of counsel).  Government users are most often defendants in the samples and were very successful in resisting claims made against them at all levels. A number of gender-based patterns also arose in the data.  In both the BCSC and BCPC samples, individual applicants fared better than average when before a judge of their own gender, and worse than average in front of a judge of the other gender.  As male adjudicators only decided 14.29% of BCCRT cases (32 total), and only three of these involved individual female applicants, the same analysis could not be undertaken at the BCCRT level.  However, in that forum, individual male applicants outperform their average against individual female respondents, but female applicants also outperform against male respondents.  Some of these cases involve contentious personal issues as, through the analysis, some CRT cases were noted to involve claims for return of property after relationship breakdown.  The reason for high applicant success rates in this context may be that parties are unwilling to settle before adjudication, even where their defences are not strong. There is a long list of potential explanations for gender-based interactions between claimants and judges, where claimants of one gender have lower than average success rates when decided by a judge of the opposite gender.  The make-up of case types brought by different genders requires further analysis, as does the make-up of cases (and proceeding types) assigned to judges of different genders.  Litigation behaviour must also be taken into account, where it has already been noted that male claimants are overrepresented as litigants (across all forums) and appear unrepresented more often (at the BCPC level).  On the whole, females pursued litigation less often in the samples, but experienced higher success rates.  Judge bias against the opposite gender is a final potential explanation.  More research on gender-based litigation behaviour and a larger sample size (to effectively control for variables like case types and representation) would help to identify whether judge bias is a factor in outcomes.   128  5.4 Qualitative Analysis: The Playing Field for Low Income Users 5.4.1 Introduction While statistical case outcome analysis enables system-wide analysis that is difficult to otherwise observe, the approach has limitations.  It can identify trends worth investigating but does not, on its own, explain causative mechanisms.  Similarly, reported judicial decisions contain only a fraction of information about the litigation process and the people that engage in it.  For instance, while a decision can provide information about whether a party is an individual, corporation, government, or other entity, this provides only a rough marker of power, status, and resources.  An individual litigant might be poor or rich, have no or multiple prior experiences with the legal system, or may not be represented on the record but still engage legal services behind the scenes.  Most litigation settles and never reaches a final hearing on the merits. In the context of A2J, a significant limitation of outcome analysis is that it does not provide detail on how those who are excluded from the system fare when they have justiciable issues, though it does provide some indirect information about exclusion through who and what is not present (or is underrepresented) in reported legal decisions.  While existing studies and reform reports provide increasing information about the extent of justiciable problems in Canadian society472, most analysis does not narrow in on socioeconomic status and instead is concerned with getting a handle on the general magnitude of the A2J problem.   While this information is useful, greater attention to socioeconomic status and how it interacts with the legal system is required to develop reforms that are tailored and responsive.  A2J solutions for middle-income Canadians might be different than for low-income populations and a one-size-fits-all approach risks unintended or ignored consequences.  One topical example that comes to mind is the push to make adjudication accessible through the creation of online tribunals such as the CRT, which, without proper  472 See note 1 for some of this work. 129  accommodations, may increase barriers compared to in-person services for those without access to technology. Since the bulk of contemporary A2J reform is not explicitly concerned with addressing specific socioeconomic barriers or historically marginalized populations473, four qualitative interviews of legal professionals serving low income populations operating in the Greater Vancouver Area were conducted to gain insight into how jurisdictional and procedural systems intended to encourage A2J are serving those who face the greatest barriers.  This fills a gap in the information available through the preceding case outcome analysis by providing data on groups that are underrepresented in the courts about their legal outcomes and the justice processes that do and do not work for them.  In particular, interviewing legal professionals allows for a wider systemic view of how technical adjudication processes play out, and adds to the existing statistical data about the role of lawyers in achieving success in the Civil justice system.  5.4.2 Interview Data There are a handful of non-profit legal service providers in the Greater Vancouver Area that provide representation to low income or otherwise disadvantaged populations.  These include: (1) UBC-affiliated LSLAP, Rise Women’s Legal Centre, and the Indigenous Community Legal Clinic474, which are law-student run but supervised by practising lawyers; (2) service and advocacy oriented organizations that serve clients while also attempting to tackle systemic legal issues, such as the BC Public Interest Advocacy Centre, Access Pro Bono, the Community Legal Assistance Society of BC and Pivot Legal Centre475; and, (3) most recently, eight new regional and specialty low income legal clinics funded by the Attorney General of BC (with grants of up to $250,000 each  473 With the exclusion of recent funding announced for low-income legal clinics in British Columbia which have recently begun operating (BC Legal Clinics News Release, supra note 77). 474 See information about these services online: https://www.lslap.bc.ca/; https://allard.ubc.ca/community-clinics/indigenous-community-legal-clinic; https://womenslegalcentre.ca/  475 See information about these services online: http://bcpiac.com/; https://accessprobono.ca/; https://clasbc.net/; https://www.pivotlegal.org/  130  administered by the Law Foundation), such as one housed in the Tenant Resource and Advisory Centre476.   While not all these organizations are represented in the participants who were interviewed, the sample includes at least one lawyer from each of the three categories of service providers listed above.  The interviewed sample all had significant experience working in the non-profit, social justice, and low-income legal service sectors; some had experience exclusively in British Columbia while others had previously worked in other Canadians jurisdictions.  In addition, the organizations the lawyers worked for had formal or informal relationships with community advocates who they trained, worked with, referred cases to, or received referrals from.  Advocates are not usually trained lawyers but can provide a more limited or specific form of assistance for those navigating the civil justice system, such as helping to fill out government, tribunal or court documents, and in providing support at hearings.477    5.4.3 Client Population and Legal Issues at Stake The interviewed sample included lawyers working for legal service providers that employed a variety of eligibility mechanisms.  Some had specific income thresholds while others used a more flexible framework.  Law-student run clinics have restrictions on the venues in which they will represent clients (in general, limited to tribunal and provincial court work) largely because of the expertise level of the law students that provide direct service, while other organizations generally focus on specific areas of law or adjudicative mechanisms based on a combination of strategic considerations and their external grant-based mandate. Limited resources were a recurring theme that informed the level of service provided (ranging from information/referral, referral to legal advocate services, summary advice, assistance to self rep, and full representation), the specialization of work and the decision- 476 See BC Legal Clinic News Release, supra note 77. 477 For a list of community advocacy services in British Columbia, see online: https://www.povnet.org/find-an-advocate  131  making process employed in determining what cases to take on.  For example, when one participant was asked whether they had or were planning to take on cases involving the Civil Resolution Tribunal, their response made clear the important stakes faced by their clientele and how that informs their services: With the CRT, unless you’re getting into issues of procedural fairness – of which there are many – and that’s why maybe we do look at it… the law around the contract on a $5000 claim may not have that much meaning to our constituents so yeah it just… makes you prioritize.  And generally we’re going to prioritize the things that are going to pose an immediate threat to the person’s most basic needs like income, housing, basic human dignity in terms of human rights… these more immediate things.  But if the community tells us the CRT is where we should be focusing we can always listen and adjust there.  As with all legal services, the legal merit of a case was a significant consideration.  However, even where cases had little chance of success (or where eligibility for services was unclear), all participants highlighted that they strove to provide some form of information, referral, or summary advice rather than turning people away.  Some participants spoke about the multi-faceted life challenges faced by their clientele and how referrals to external agencies or supports might be made to help address these. Beyond legal merit, organizations involved in systemic work attempted to balance the importance of the case to the individual’s life (for example, in the housing context, with those facing eviction with the prospect of homelessness were described as having the highest stakes) with the systemic value in taking a case to hearing.  The impact of precedent on communities served was a key consideration, but one which could be at odds with what was subjectively best for a given client.  As far as what is best for the client, one participant described why settlement if often preferred, particularly if the underlying nature of the claim related to a difficult life experience: We are… actually pretty often successful at the Human Rights Tribunal.  By successful I mean we achieve what our client wants be it settlement or full trial.  The Human Rights Tribunal is where we almost always settle, we very rarely run a trial… but that’s what I consider a success, I kind of actually consider it a failure if a Human Rights Tribunal case goes to a trial, because that’s usually traumatizing, victimizing for the client.  To that end a strategy we use to achieve settlement is putting a lot of effort into settlement offers and negotiations.  132  On the whole, most low income legal service providers in the sample focused on tribunal work (either at the tribunal, tribunal appeal, or on judicial review depending on the organization) given the relative importance of the issues at stake to a client’s livelihood and the incidence of immediate legal issues in the communities served – such as housing or ongoing income supports -- compared to more general forums such as the CRT or Small Claims court.  As a result, little attention has been paid to the CRT by these organizations, in part because lawyer or even community advocate involvement in discouraged: I think that’s discouraged by the CRT to actually have representation and the whole process is supposed to be very informal, I think often just an exchange of submissions so I don’t know if folks know that they can appeal their CRT decisions to the BC Supreme Court.  I’m not sure why we’re not getting any inquiries – it kind of actually seems like this blind spot not only for lawyers but advocates working in the area of anti-poverty… …I know that advocates do have a lot of questions about [the CRT].  I don’t think they’re helping folks because that seems to be discouraged by the CRT… that you don’t need representation, that it’s set up for a layperson to navigate on their own which is problematic…    Another participant remarked that, anecdotally, “I’ve not heard good things about what happens with people at the CRT when they’re on their own…. [Q: So that’s not necessarily not being successful, it’s more the nature of the experience they had going through it, is that fair to say?  A: Yep. Yep.]”.  Given the CRT’s online-only nature and the restrictions on providing assistance, much about the CRT’s processes and whether and how they interact with low-income or otherwise disadvantaged populations that seek to utilize its services remains unknown and opaque.  On the whole, there appear to be few non-profit organizations offering generalized low-income civil law services, with the exception of law student legal clinics and one-off pro bono cases that might be taken on through the Access Pro Bono roster program.  The opening of new regional and specialty legal clinics throughout the province may provide some of these services, or enable additional insight into the full legal needs of these populations, though it was mentioned by one participant that a handful of clinics staffed by one lawyer each was not a full solution to the issue of underserved communities.  133  5.4.4 Barriers and Challenges Interview participants identified a number of specific challenges that were faced by them and their clients in navigating through British Columbia’s civil justice system. In the area of administrative and tribunal work (a significant portion of low-income legal services), some organizations prioritize providing representation for judicial reviews, which have greater systemic and precedential value for the communities they serve, and require greater expertise to undertake.  Alternatively, clients may only seek help after already having received a negative tribunal outcome or other government decision.  Inherent to the nature of judicial review is its focus on the record, deference to decision-makers, and strict limitations on introducing new evidence.478  Participants doing judicial review work observed that deficiencies in the record were a notable challenge and that self-represented clients can miss legally important and relevant evidence when unassisted: Sometimes we find that [the tribunal made an error] because we get some additional evidence from the client after the fact but when we ask if that was raised in the hearing often times we are told that it wasn’t… which means we can’t now bring it on judicial review because judicial review is concerned with the decision and decision maker’s analysis and if they didn’t have that information then [the tribunal] can’t be expected to include in their analysis… that definitely comes up often.  Though participants stressed that community advocates do important and valuable work, and are often very good at what they do (one participant remarked that in some specific areas relating to government benefits, they had no doubt that an experienced advocate in that area was more knowledgeable than they were), they can also make errors.  Participants attributed this to a couple factors: that there is no licensing or minimum training requirements for advocates (which one participant indicated would be beneficial to introduce) and that many advocates are “overworked and underpaid”.  In the words of one participant: …there’s no oversight or licensing of advocates.  There are a ton of just amazing community advocates who have been doing this for years… and there’s so much we  478 For the latest guidance from the courts on the purpose and scope of Judicial Review, see Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65. 134  could learn from them as lawyers.  But I’ve also encountered situations where people were thrown into that advocacy role… without any legal training whatsoever… I’ve seen a lot of really concerning errors made by advocates and I don’t think it’s the advocates fault I think it’s the lack of training.   If we’re going to have laypeople represent and provide assistance to people on often complicated legal matters (Housing can be very complicated and the income security system can be really complicated.  There’s a lot there.) we can’t just throw them in and give them two opportunities for training in a year that’s not fair to them and that’s not fair to the client.  I think the whole advocate set up… needs… there needs to be more resources and more training for advocates to be able to access training online or through other avenues… I’ve seen far too many mistakes being made by advocates that have actually cost someone their housing and has resulted in that person being homeless… and again, not the advocates fault it’s the lack of training.  I’m not going to put that on the individual advocate, I think it’s the entire system.  They need to be better supported and better funded… they’re overworked and underpaid and the government will often push a lot of their responsibilities onto advocates too.  When the record is incomplete or other errors are made at first instance, there is very little recourse available on a judicial review, which negatively impacts the chances of success.  There are also limitations in remedies on judicial review, where the result is normally that a decision is remitted back to the decision-maker for redetermination, with no guarantee of success the second time around.  Where administrative decisions or the term of benefits at issue are cyclical or periodic, there may be very little practical utility for a client to undertake a judicial review.  In these cases, participants noted that it was often easier for the client to simply wait for a new hearing rather than review a decision.  As highlighted by some participants, the main drawback to this is that it curtails the development of the law in this area; as a result, some tribunals have very few useful precedents.   This comes back to the tension between individual needs in a given case and the systemic aspects of low-income legal work, where the layers of litigation in the system itself helps to shape the nature of the trade-off between pursuing a valuable precedent and providing a client with the best outcome available to them in the circumstances.  Given the limited nature of judicial review, this trade-off is more stark than traditional appeal mechanisms from superior courts, where appeals are generally subject to a lower standard of review and allows for substantive remedies rather than re-determinations. 135  In Vancouver, the practical impediments to pursuing judicial review described in the interview data were compounded by notable difficulty and competition in scheduling hearings longer than two hours (which require specific dates rather than the ability to be heard during regular chambers days).  One Tuesday morning a month is designated as a call time to book hearings over 2 hours for the following month, and slots fill up quickly.  The consequence is that it can take months to secure a judicial review date.  As described by one participant: It will take months and months before we can get dates… there was a period where it was a little better where we would be able to book our booking date and it was no problem.  But there definitely have been periods, and we’re in one right now, where you try to book a date, you can’t get your date, so you call the next month you can’t get that date and it takes about 4 months before you’re even able to get a date and that’s because you’re competing with larger firms who have entire teams of people all calling in to get dates too...  we always tell our clients well this is a long process and a lot of it is out of our control sometimes it’s going to take months to secure dates for hearings … … we’re competing against big firms that have huge teams of people that are just calling in to book dates for all of their lawyers… and we know that that sometimes they’re just booking dates to have them.  It’s not for a specific matter it’s just – we’ve secured this date we’ll find something to put into that date – so there’s some larger firms that I think monopolize that system.  More specifically, in the housing context, one participant detailed the real harm created by the interaction of Residential Tenancy Branch (“RTB”) and BC Supreme Court procedures when a client is faced with an eviction and wishes to pursue judicial review: A: …The transition from RTB to the court process is mayhem.  Someone gets evicted [by the RTB’s decision], they’re told to get out in 48 hours479, and they come screeching into our office with the landlord saying bailiffs are coming tomorrow… and you just try to do the best you can to get the person into court to see if they can get an order [for a stay]… …You draft up the paperwork as quickly as possible and send the client running down to the registry… procedurally it’s a nightmare because the process to waive fees in Supreme Court is way harder than it has to be… one thing the CRT has done reasonably well I believe is dealing with fee waivers… to get a stay the person [first] has to go waive their fees, and that requires a requisition, supporting affidavit, and  479 This was described as a regular practice of the RTB.  Note that the Residential Tenancy Act, SBC 2002, ch 78, does not mandate that RTB eviction orders provide a 48 hour, or any, notice period: see section 68(1) [Director’s orders: notice to end tenancy]. 136  draft order… go in [to court] to get fees waived… come back down [to the registry] to file their petition and supporting affidavit…then file a notice of application (and possibly another supporting affidavit) [for a stay], go back upstairs to sit and wait to get a stay now that their case is filed… then come back down… then at some point try to have their Judicial Review heard. Q: That sounds very stressful for the person involved… A: --Yeah, it’s awful-- Q: Who is already under quite overwhelming stress because of the housing situation? A: Yep. Yep. And to be fair to the registry at least in Vancouver have made some efforts to streamline the process… …all of it is happening so fast it’s like a train coming down the tracks… if the… RTB would just not kick people out on 48 hours [notice] it would be amazing… not only the benefits at a base human level of people losing their housing but to the justice system as well.  If they just slowed this down a little bit in non-urgent cases… I mean if the person is actively committing mass damage to the unit or posing a serious risk to other tenants okay maybe we gotta move quick but for your more minor cause stuff or non payment of rent do we really need this?  The requirement placing the onus on the tenant to get a stay to stop the eviction process while pursuing a judicial review contrasts with the system in Ontario, where a stay is automatically granted when a review to the Divisional Court of Ontario is sought.480 Other concerns with the RTB were raised by participants, including prioritization of speed over the quality of legal decisions, a tendency to focus more on facts than law (making the large number of RTB decisions of little value for use as legal precedent), procedures that “don’t lend themselves to fair hearings” and that “a lot of arbitrators still come up very short in terms of the level of respect people would expect in adjudication about something as fundamental as housing rights”.  One participant felt that though the RTB had made some headway in improving its processes, significant concerns remained. On the topics of tribunals and administrative decision-making processes in BC generally, one participant remarked on the presumed ease of navigating these bodies and described them as becoming “the monster they were designed to fix” (the courts), and that many administrative processes were complex and confusing.  They also  480 See Residential Tenancies Act, 2006, ON and “Review of an Order: Interpretation Guideline 8 – Stay of the Order,” online: https://tribunalsontario.ca/documents/ltb/Interpretation%20Guidelines/08%20-%20Review%20of%20an%20Order.html  137  commented that expertise and institutional think can have a negative impact on accessibility because the system begins to “speaks it’s own language” without appreciating that the language is not known or obvious to outsiders.  While such bodies were in some ways easier to access than courts, one participant felt that most administrative systems were complex enough that users could not navigate them properly without assistance. Another identified barrier was providing services outside the Lower Mainland.  A few participants noted that, though their organizations had no official limitation on where they provided services within the province, in practice most clientele originated from the Lower Mainland.  A few participants described the difficulty in scheduling and attending hearings based on scheduling practices outside the Lower Mainland (the assize system, which does not guarantee dates and instead provides a window of possible dates for longer hearings) and limitations on time and travel budgets.  These participants were interested to see whether the introduction of new regionally-based poverty law clinics funded by the Attorney General would ameliorate service levels throughout the province and create opportunities for new partnerships and referrals among legal clinics.  Lastly, one participant mentioned the turn to online-based tribunals as a probable barrier for some members of the communities that participants served, unless reasonable accommodations were put into place.  Another participant noted that a lot of their clientele did not have access to technology – either do not have computers or did not know how to use them – at a time when we are seeing a greater turn to online processes.  This lawyer was interviewed during the COVID-19 pandemic and noted that working remotely had been a challenge with clients, some of which had no access to phone or computer and so were reliant on in person services.  The participant felt that the this was a procedural issue that is underappreciated.  5.4.5 The Nature of Success All interviewed lawyers touched on the complicated nature of success for the client.  A positive legal outcome was only one goal, with settlement described as often preferred or better from the perspective of the client and the lawyer (though one identified downside 138  of this was that it could limit the development of useful precedent that might benefit the broader community served in the future).  One participant noted that early and thorough settlement offers (containing research on applicable legal cases and statutes) was often a successful strategy in creating opportunity for negotiation, and found that many opposing litigants were hesitant to sink resources into a legal claim, including paying a lawyer to provide a meaningful response to detailed settlement offers.  The experience of the client going through the system was seen as important, and participants highlighted that the communities they served often had a complicated relationship with them and with the system, which for most interactions throughout their lives had been negative or oppressive in nature.  Here is how one participant described it: I think individual lawyers should really consider their responsibility towards not only low income individuals but BIPOC communities, any disadvantaged community.  [For them] accessing the system isn’t just about having the resources to access the system it’s also about engaging in a system of oppression… for a lot of people the system represents oppression and they’ve only been repressed by the system.  Colonial law is directly responsible for a lot of the suffering of Indigenous people and to ask them to engage in the system directly and to abide by the system and follow the system’s rules is a lot, especially when they’re expected to do that without any help so I think lawyers should -- lawyers who aren’t already doing this work – should do more pro bono work to assist individuals in these circumstances…  Based on this, success might be any combination of a positive legal outcome, settlement or other practical resolution, identification of other referrals that could help clients with broader or underlying life concerns, or easing the experience of the client in navigating justice processes.  Most participants mentioned that community advocates were valuable in assisting clients with these forms of success, though they noted that whether a lawyer or community advocate was most appropriate depended on the type and complexity of a claim.  However, while it was noted that advocates do have a useful place in the broader system, there was increasing overreliance on them due to government action.  One participant provided a tangible example: For example, when someone is applying for income security the Ministry of Social Development and Poverty Reduction used to help people with the applications.  They had kiosks in their office and someone would go and sit with somebody who wasn’t familiar with the computer and the system and would help them.  At some point the 139  ministry said ‘oh no, advocates can do that’ and then they downloaded that responsibility onto advocates.  It takes hours to complete an income security application.  Advocate[s’ responsibilities] continue to increase because the government continues to download…  …When people are not getting appropriate legal services there are consequences, great consequences.  People are losing housing and their source of income – that’s not small, that has a huge, devastating impact on someone’s life…  5.4.6 Role of the Legal Professional & Direction of A2J481 All participants agreed that much of their clientele would be unable to effectively navigate the civil justice system without some form of assistance.  It was clear that each had thought carefully about their role working within low income or otherwise marginalized communities, that a number of tensions existed when doing their work, and that the simple provision of expert legal assistance was only one part of the larger whole of the client’s needs.  As put by one lawyer: Obviously the best case scenario is you can do both… you can both make them feel like they’ve been heard and had a better experience and also win... but I do get the sense sometimes that clients are okay with just having their hand held and having the whole experience be less stressful than it otherwise would have been.  That is one issue that I’ve thought a lot about… …The other tension for me is helping a client… if I try to help a client to what extent am I removing their agency from them?  It’s very easy sometimes to get a case on your desk and to do all the work and ‘here’s what I think is best’ without too much regard for what the client thinks… and the fact is I know a lot better than them in almost every case what is most likely to change the outcome for them… but at the same time I sometimes feel like I need to be more mindful of… doing everything for them.  Even if they win in some cases they may feel like they didn’t have any control over the process and a lot of the clients we’re dealing with are people who have felt that way their whole life, who have been in the system in one way or another for their whole life.  Even if I help them or think I’ve helped them sometimes they don’t come away with a positive experience of that…  …I would love for my role to be both helping people change their outcome and making sure they feel good about it… but sometimes you can’t do both and I struggle with trying to make sure that I’m finding a balance between them. I feel like sometimes it’s a sisyphian task in two ways: maybe I’ve helped this client but as soon as I’m done  481 For a well known discussion of the role of the legal professional in serving poor people, see Stephen Wexler, “Practicing Law for Poor People” (1970) 79:5 Yale law journal 1049; for recent commentary on the application of Wexler’s ideas now, see Allan C. Hutchinson, “Practising law for rich and poor people: towards a more progressive approach” (2020) Legal Ethics, DOI: 10.1080/1460728x.2020.1799302 140  with this case they’re going to go and have the same problem again… or even if I’ve fixed it for them a million other people have the same problem... it can feel like just a tiny drop in the ocean…  Multiple participants felt that the legal community as a whole did not do enough to promote A2J or to provide services to low income populations.  One lawyer, who had an extensive list of volunteer engagements, remarked that status as a lawyer makes you part of a powerful segment of society that garners respect and admiration; and that those advantages should come with the obligation to empower, support, educate and lift others up in pursuit of creating more A2J.  Incentives created by the system to pursue private firm work were raised by another participant, who described the problem in British Columbia concerning the dearth of low-income legal clinics in this way: …So there’s no real incentive for law students to want to get into this work because there aren’t any opportunities and the opportunities that are available are poorly paid so in terms of who’s actually able to provide the services there still a lot of underserved areas… In Vancouver we have a ton of advocates and a ton of really really good advocates but I also know in some remote places you have one advocate who is responsible for an entire city of people and they’re just not able to do that.  More resources absolutely need to be provided to anti-poverty law so that there are more people doing this work but also more people attracted to doing this work and for many people it’s not even an option.  I mean, people cannot afford to work in this area because it’s so incredibly underpaid… [and] that’s just at the service provider level… …and as I said earlier there’s no incentive for lawyers to get into this work either, especially as they’re graduating law school with a ton of debt.  I don’t think there’s a shortage of interest in public interest law or social justice or anti-poverty.  I think students are keen and hungry to do that but it’s just not sustainable – it’s not possible, they can’t afford it.  I’m fortunate I’m in a two income household, I have a partner and I’m actually able to do it but that’s not the case for a lot of people that want to do this area of law…  And on current levels of service provision:  I think all lawyers should assist low income individuals… for us, it’s our work, this is the work that we do, we focus on providing services to low income individuals to no cost to them… and now we have more clinics that are going to be doing that as well… but that’s still not enough.  It’s not enough.  If the government’s not going to fund more clinics that will provide these services to low income individuals then I think individual lawyers should take that responsibility on and do more pro bono work.  Again that’s not the solution, the solution is we just need more government funding and resources to properly staff and sustain poverty law legal clinics…  141  Ultimately, legal professionals were viewed as a necessary but not sufficient component in achieving justice for communities served within the Civil justice system as it now stands.  Lack of funding, unjust substantive laws, onerous procedural rules (at both the tribunal and court level), and the failure to provide legal aid funding or a robust pro bono system were viewed by participants as major and persisting A2J barriers that had particular impacts on their clientele.  5.5 Integration, Implications & Conclusion The findings of the quantitative and qualitative aspects of this study lend support to the idea that the civil justice system in British Columbia has structural imbalances embedded within it and is not immune to the power imbalances that operate in broader society despite A2J efforts.  For example, the finding of persistent corporate advantage at all levels of civil dispute adjudicative bodies coupled with the qualitative data of daunting procedural barriers faced by low income users of the civil justice system indicates that procedural and jurisdictional reform alone has limitations in increasing accessibility for disadvantaged users.  This persists even for forums designed with ease of use for laypeople in mind. Another key finding at both the quantitative and qualitative level was the importance of lawyers – or some other form of appropriate legal assistance – to outcomes and litigation experience across the board.  Again, there are major limitations to a do-it-yourself approach to justice, particularly where users have a combination of socioeconomic barriers that limit their ability to meaningfully engage civil justice processes.  Lawyers or legal advocates have an important role to play in helping people find justice given the administrative and legal complexity that is pervasive in the system.  Discussion of the nature of this role should continue to determine how legal professionals can best fulfill this task without contributing to undue complexity in resolving legal disputes. It is also clear that greater government investment is needed to truly effect changes that would increase Equitable A2J, and that current service provision levels for low income populations across the province remains inadequate.  Efficiency, streamlining, 142  stratification and privatization may have some initial uptake for ‘median’ users (though the extent to which this is the case is still a large question mark that itself requires further examination), but there are indications that these trends leave low income or otherwise disadvantaged users behind and may, in some cases, actually exacerbate inequities in the civil justice system by disproportionately benefitting those with existing legal advantage.  Greater attention and study is needed to understand the nature and scope of this phenomenon. The primary implication of this study is that it showcases the complexity of the Equitable A2J project, and that we cannot attempt to manufacture and impose greater simplicity without more searching examination of the systemic and structural inequities embedded in our civil justice system institutions.  The following section, which concludes this project, will outline the direction needed to advance this important inquiry. 143  Chapter 6: Conclusion 6.1 Findings and Recommendations This project has taken on the task of analyzing the current status of Equitable A2J within the civil justice system.  It has done this by taking a systemic and contextual approach to the problem that focuses on the interface between users, socioeconomic status, and structural elements of the civil justice system.  What that analysis has revealed includes that: (1) Much work has been done in the past two to three decades on the civil A2J project, focusing heavily on procedural and jurisdictional change, but the impact on Equitable A2J has been limited -- the civil A2J crisis continues; (2) Courts have a limited but important role in furthering Equitable A2J, and could do more in this regard; (3) Though there are recent indications of a potential shift in dominant A2J reform narratives and associated actions towards a more contextual understanding of A2J barriers, the dominant trend in A2J reform continues to focus on concepts of efficiency, simplicity, stratification and privatization without corresponding regard for implications on the rule of law and Equitable A2J; (4) These dominant trends have occurred alongside broader social processes of social stratification that have fed stagnating or worsening inequality in Canada that have had disproportionate effects on historically disadvantaged BIPOC groups and immigrant populations; (5) There is a strong argument to be made that trends in modern A2J reform combined with the status of inequality in Canada have exacerbated structural inequalities within the civil justice system, particularly for low income users; a shift in thinking towards an Equitable A2J paradigm is urgently needed to fully understand and uncover this potential issue, as it has important implicates for the legitimacy of the civil justice system; and (6) More study and government investment in the civil justice system is required to ameliorate inequities that play out in the experiences and outcomes of users. 144  Though more study and exploration is required to tackle the Equitable A2J project, there are some clear actions that the government and judiciary could take to improve the civil A2J crisis.  Opportunities for reform that arose in this project include:  (1) Greater direct investment in subsidized legal services, including lawyer and community advocate services and funding for disbursements such as transcripts for appeals or the preparation of expert reports for lower income individuals;  (2) Providing more in-person service opportunities for those with engagement and accessibility challenges in navigating complex, technical or digital administrative and adjudicative processes; (3) Developing more standardized legal training opportunities for community advocates;  (4) Developing guidelines for automatic court fee waivers (on submission of appropriate documentation) that will reduce the burden on socioeconomically disadvantaged applicants (with a residual discretion for a judge or master to consider other conditions of undue hardship that may arise); (5) Granting automatic stays for a tenant seeking a review of an RTB eviction, with a possible exception for urgent evictions required to safeguard from immediate threats of extensive damage or harm to people;  (6) Gathering more socioeconomic and demographic information about users that formally engage the civil justice system with appropriate protection for privacy concerns; and (7) Reconsidering layers of litigation and placing the onus on claimants within a broader socioeconomic context and removing these barriers when they are likely to cause undue hardship to users seeking to assert their constitutionally protected A2J rights. In addition to these recommendations, the self-regulating legal profession should examine its own role in furthering Equitable A2J, particularly if government inaction persists.  Changing incentive structures to promote public interest work and coordinated action to increase pro bono work are two important steps in increasing trust in the legal profession. 145  6.2 Limitations of Research The main limitations of this research are that direct socioeconomic data on Civil justice system users was not available and the reality of limited resources of a researcher conducting a master’s level project.  Because of this, the results of the mixed methodology study undertaken in Chapter 5 should be considered preliminary and exploratory.  Larger sample sizes, government collaboration on data collection, and more resources to conduct sophisticated statistical outcome analysis and large-scale surveys or interviews would validate and extend initial findings.  6.3 Areas for Future Research The direction of future research is introduced and explained in Chapter 4, which advocates for study of the Civil justice system within the broader socioeconomic context, and in particular, by drawing from and adapting the theory of Cumulative Advantage in sociology to design research and evaluation methods to test the status of Equitable A2J.  The potential applications to the Civil justice system are varied and many.  Such research should seek to understand the relationship between inequalities in society and the Civil justice system, with a particular focus on understanding what system changes or external interventions will protect legal systems from the incursions of societal injustices.  Research from other jurisdictions can be drawn upon for inspiration; as mentioned earlier in this project, Tribunals for Diverse Users482 is one study that showcases public investment in understanding the links between socioeconomic status and civil justice experiences and outcomes.  6.4 Contributions to the Literature This project makes three significant contributions to the literature by: (1) Providing a systemic overview and critique of the overall direction of modern A2J reform in Canada  482 Tribunals for Diverse Users, supra note 449. 146  (with an emphasis on British Columbia); (2) Expanding our understanding of Civil A2J by contextualizing it within larger societal patterns of social stratification and inequality, and the role that this plays in Equitable A2J and the rule of law; and (3) Developing a greater understanding, through theoretical development and mixed methodology study data, of the links between socioeconomic status, procedural and jurisdictional structure, and civil justice outcomes and experiences in British Columbia.  6.5 Conclusion The importance of restoring faith in the civil justice system extends beyond the confines of one system itself – dwindling faith in institutions can have broad societal and democratic implications.483 Courts are an important, symbolic barometer of a functioning civil society. It is also a forum in which important rights do have the capacity to be recognized when a case can be effectively brought and argued: recent decisions recognizing the right to assisted dying, advancing the cause of harm reduction for drug users, and TLA (2014)’s analysis of the effects of the economic barriers of litigation show the capacity for thoughtful evolution of the law484. Normative goals of impartial decision making, meaningful engagement, and promoting the rule of law should not be discarded at a time when the world is facing growing inequality, social polarization, and seemingly endless political and institutional crises. Much work is needed to align the current civil justice system with its weighty ideals. 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Morgan, D.L. “Paradigms lost and pragmatism regained: Methodological implications of combining qualitative and quantitative methods” (2007). 1:1 Journal of Mixed Methods Research 48.  Mulgrew, Ian. “Legal tax is the elephant in legal aid debate” (Nov 9, 2018). Vancouver Sun. online: https://vancouversun.com/news/politics/ian-mulgrew-legal-tax-is-the-elephant-in-legal-aid-debate (Date last retrieved: November 28 2020).  Parkinson, Patrick. Family Law and the Indissolubility of Parenthood (2011, New York: Cambridge University Press). doi:10.1017/CBO9780511921063  156  Pavlis v. HSBC Bank Canada, 2009 BCCA 450.  Payne, Julien D. and Payne, Marilyn A. Canadian Family Law 8/e (2020, Toronto, CA: Irwin Law Inc).  Pelletier, Rachelle. “Gender Wage Gap in Canada: 1998 to 2018.” (2019) Statistics Canada. online: https://www150.statcan.gc.ca/n1/pub/75-004-m/75-004-m2019004-eng.htm (Date last retrieved: November 28 2020).  Picot, Garnett and Myles, John. “Income Inequality and Low Income in Canada: An International Perspective” (February 2005), Statistics Canada Analytical Studies Branch Research Paper Series, online: https://www150.statcan.gc.ca/n1/en/pub/11f0019m/11f0019m2005240-eng.pdf?st=WKTH4hiM (Date last retrieved: November 28 2020).  Price Waterhouse Coopers, “Operational Review of ICBC” (January 2018), online: https://www2.gov.bc.ca/assets/gov/british-columbians-our-governments/organizational-structure/crown-corporations/pwc-review-icbc-jan-2018.pdf   Provincial Court of British Columbia. “2017/2018 Annual Report”. online: http://www.provincialcourt.bc.ca/downloads/pdf/AnnualReport2017-2018.pdf (Date last retrieved: November 28 2020).  Provincial Court of British Columbia. “Important changes to Small Claims Court” (2017). online: http://provincialcourt.bc.ca/enews/enews-20-03-2017 (Date last retrieved: November 28 2020).  Rehaag, Sean. 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(2015) 47:3 Canadian Ethnic Studies 1.  Wexler, Stephen. “Practicing Law for Poor People.” (1970) 79:5 Yale Law Journal 1049.  Windsor Yearbook of Access to Justice.  “About.”  online: Windsor Yearbook of Access to Justice since 1979.  online: https://www.uwindsor.ca/law/wyaj/ (Date last retrieved: November 28 2020).    159  Appendix A: Open-Ended Interview Questions for Qualitative Interviews  Open-Ended Interview Questions (1) Please provide a general overview of your educational and professional experience (2) What do you think your role should be representing, assisting, or advocating for low-income individuals with civil disputes?  Do you feel able to fulfill this role with the resources you have?  If no, what are the primary limitations? (3) What patterns, trends, challenges do your clientele face regarding the following topics: a. Limited retainer vs. full retainer services; b. Pros and cons of different venues: tribunals, small claims court, supreme court, etc.; c. Experiences with different types of proceedings: applications, summary trial, fast-track trial, full trial, etc.; d. Common challenges and complaints of clients re: the legal process; e. Distinct challenges and/or complaints of sub-populations, if any (e.g. low-income women); and f. Challenges of assisting, representing, or advocating low-income populations within the legal system. (4) What is the role of the legal professional serving low income clients in advancing the cause of civil access to justice? (5) What is your sense of the status and direction of civil access to justice reforms in British Columbia? (6) Are there any other topics of interest that are relevant to this discussion?   160  Appendix B: Case Citations used in Case Databases  BCSC CASE CITATIONS  BCPC CASE CITATIONS  BCCRT CASE CITATIONS 2018 BCSC 8  2018 BCPC 343  2018 BCCRT 926 2018 BCSC 9  2018 BCPC 345  2018 BCCRT 914 2018 BCSC 13  2018 BCPC 330  2018 BCCRT 911 2018 BCSC 16  2018 BCPC 297  2018 BCCRT 908 2018 BCSC 21  2018 BCPC 310  2018 BCCRT 906 2018 BCSC 22  2018 BCPC 277  2018 BCCRT 903 2018 BCSC 26  2018 BCPC 276  2018 BCCRT 900 2018 BCSC 31  2018 BCPC 279  2018 BCCRT 889 2018 BCSC 32  2018 BCPC 262  2018 BCCRT 892 2018 BCSC 36  2018 BCPC 361  2018 BCCRT 887 2018 BCSC 41  2018 BCPC 258  2018 BCCRT 884 2018 BCSC 46  2018 BCPC 251  2018 BCCRT 874 2018 BCSC 47  2018 BCPC 241  2018 BCCRT 869 2018 BCSC 52  2018 BCPC 236  2018 BCCRT 866 2018 BCSC 58  2018 BCPC 229  2018 BCCRT 863 2018 BCSC 62  2018 BCPC 224  2018 BCCRT 860 2018 BCSC 66  2018 BCPC 392  2018 BCCRT 857 2018 BCSC 67  2018 BCPC 356  2018 BCCRT 851 2018 BCSC 72  2018 BCPC 219  2018 BCCRT 849 2018 BCSC 77  2018 BCPC 170  2018 BCCRT 845 2018 BCSC 81  2018 BCPC 179  2018 BCCRT 840 2018 BCSC 82  2018 BCPC 175  2018 BCCRT 837 2018 BCSC 83  2018 BCPC 213  2018 BCCRT 833 2018 BCSC 85  2018 BCPC 158  2018 BCCRT 830 2018 BCSC 90  2018 BCPC 150  2018 BCCRT 827 2018 BCSC 92  2018 BCPC 151  2018 BCCRT 825 2018 BCSC 94  2018 BCPC 132  2018 BCCRT 821 2018 BCSC 97  2018 BCPC 127  2018 BCCRT 818 2018 BCSC 98  2018 BCPC 261  2018 BCCRT 808 2018 BCSC 99  2018 BCPC 176  2018 BCCRT 798 2018 BCSC 100  2018 BCPC 115  2018 BCCRT 806 2018 BCSC 101  2018 BCPC 106  2018 BCCRT 799 2018 BCSC 103  2018 BCPC 305  2018 BCCRT 796 2018 BCSC 104  2018 BCPC 107  2018 BCCRT 792 2018 BCSC 105  2018 BCPC 86  2018 BCCRT 789 2018 BCSC 109  2018 BCPC 59  2018 BCCRT 786 2018 BCSC 111  2018 BCPC 66  2018 BCCRT 783 2018 BCSC 113  2018 BCPC 54  2018 BCCRT 778 2018 BCSC 114  2018 BCPC 68  2018 BCCRT 772 161  2018 BCSC 115  2018 BCPC 24  2018 BCCRT 769 2018 BCSC 119  2018 BCPC 35  2018 BCCRT 762 2018 BCSC 122  2018 BCPC 19  2018 BCCRT 764 2018 BCSC 123  2018 BCPC 17  2018 BCCRT 756 2018 BCSC 126  2018 BCPC 8  2018 BCCRT 753 2018 BCSC 133  2018 BCPC 2  2018 BCCRT 751 2018 BCSC 135  2018 BCPC 1  2018 BCCRT 745 2018 BCSC 136     2018 BCCRT 739 2018 BCSC 138     2018 BCCRT 741 2018 BCSC 141     2018 BCCRT 737 2018 BCSC 144     2018 BCCRT 711 2018 BCSC 146     2018 BCCRT 727 2018 BCSC 147     2018 BCCRT 723 2018 BCSC 149     2018 BCCRT 720 2018 BCSC 151     2018 BCCRT 717 2018 BCSC 152     2018 BCCRT 714 2018 BCSC 157     2018 BCCRT 709 2018 BCSC 160     2018 BCCRT 706 2018 BCSC 163     2018 BCCRT 703 2018 BCSC 164     2018 BCCRT 700 2018 BCSC 166     2018 BCCRT 696 2018 BCSC 168     2018 BCCRT 697 2018 BCSC 171     2018 BCCRT 690 2018 BCSC 182     2018 BCCRT 687 2018 BCSC 185     2018 BCCRT 684 2018 BCSC 186     2018 BCCRT 681 2018 BCSC 192     2018 BCCRT 678 2018 BCSC 194     2018 BCCRT 673 2018 BCSC 195     2018 BCCRT 663 2018 BCSC 196     2018 BCCRT 660 2018 BCSC 199     2018 BCCRT 657 2018 BCSC 205     2018 BCCRT 655 2018 BCSC 206     2018 BCCRT 651 2018 BCSC 207     2018 BCCRT 647 2018 BCSC 208     2018 BCCRT 644 2018 BCSC 209     2018 BCCRT 641 2018 BCSC 214     2018 BCCRT 639 2018 BCSC 215     2018 BCCRT 631 2018 BCSC 220     2018 BCCRT 634 2018 BCSC 225     2018 BCCRT 628 2018 BCSC 226     2018 BCCRT 626 2018 BCSC 227     2018 BCCRT 622 2018 BCSC 228     2018 BCCRT 618 162  2018 BCSC 230     2018 BCCRT 616 2018 BCSC 233     2018 BCCRT 610 2018 BCSC 234     2018 BCCRT 606 2018 BCSC 235     2018 BCCRT 603 2018 BCSC 236     2018 BCCRT 600 2018 BCSC 240     2018 BCCRT 596 2018 BCSC 245     2018 BCCRT 593 2018 BCSC 249     2018 BCCRT 594 2018 BCSC 251     2018 BCCRT 584 2018 BCSC 252     2018 BCCRT 585 2018 BCSC 256     2018 BCCRT 578 2018 BCSC 257     2018 BCCRT 575 2018 BCSC 260     2018 BCCRT 572 2018 BCSC 261     2018 BCCRT 569 2018 BCSC 264     2018 BCCRT 565 2018 BCSC 265     2018 BCCRT 564 2018 BCSC 276     2018 BCCRT 561 2018 BCSC 277     2018 BCCRT 557 2018 BCSC 278     2018 BCCRT 555 2018 BCSC 279     2018 BCCRT 552 2018 BCSC 281     2018 BCCRT 549 2018 BCSC 287     2018 BCCRT 544 2018 BCSC 290     2018 BCCRT 540 2018 BCSC 292     2018 BCCRT 537 2018 BCSC 295     2018 BCCRT 531 2018 BCSC 299     2018 BCCRT 530 2018 BCSC 302     2018 BCCRT 528 2018 BCSC 303     2018 BCCRT 525 2018 BCSC 304     2018 BCCRT 522 2018 BCSC 305     2018 BCCRT 513 2018 BCSC 313     2018 BCCRT 510 2018 BCSC 314     2018 BCCRT 504 2018 BCSC 315     2018 BCCRT 501 2018 BCSC 316     2018 BCCRT 488 2018 BCSC 321     2018 BCCRT 482 2018 BCSC 322     2018 BCCRT 479 2018 BCSC 334     2018 BCCRT 476 2018 BCSC 335     2018 BCCRT 474 2018 BCSC 337     2018 BCCRT 470 2018 BCSC 341     2018 BCCRT 464 2018 BCSC 344     2018 BCCRT 459 2018 BCSC 348     2018 BCCRT 456 2018 BCSC 354     2018 BCCRT 446 163  2018 BCSC 356     2018 BCCRT 443 2018 BCSC 368     2018 BCCRT 440 2018 BCSC 370     2018 BCCRT 436 2018 BCSC 373     2018 BCCRT 434 2018 BCSC 374     2018 BCCRT 431 2018 BCSC 375     2018 BCCRT 429 2018 BCSC 376     2018 BCCRT 424 2018 BCSC 377     2018 BCCRT 422 2018 BCSC 380     2018 BCCRT 419 2018 BCSC 382     2018 BCCRT 416 2018 BCSC 384     2018 BCCRT 407 2018 BCSC 386     2018 BCCRT 404 2018 BCSC 387     2018 BCCRT 401 2018 BCSC 390     2018 BCCRT 400 2018 BCSC 393     2018 BCCRT 395 2018 BCSC 401     2018 BCCRT 392 2018 BCSC 417     2018 BCCRT 389 2018 BCSC 420     2018 BCCRT 383 2018 BCSC 425     2018 BCCRT 380 2018 BCSC 426     2018 BCCRT 365 2018 BCSC 429     2018 BCCRT 375 2018 BCSC 433     2018 BCCRT 372 2018 BCSC 438     2018 BCCRT 370 2018 BCSC 439     2018 BCCRT 362 2018 BCSC 440     2018 BCCRT 359 2018 BCSC 443     2018 BCCRT 356 2018 BCSC 444     2018 BCCRT 353 2018 BCSC 445     2018 BCCRT 344 2018 BCSC 446     2018 BCCRT 345 2018 BCSC 448     2018 BCCRT 341 2018 BCSC 455     2018 BCCRT 335 2018 BCSC 456     2018 BCCRT 330 2018 BCSC 458     2018 BCCRT 327 2018 BCSC 459     2018 BCCRT 324 2018 BCSC 460     2018 BCCRT 321 2018 BCSC 461     2018 BCCRT 317 2018 BCSC 463     2018 BCCRT 315 2018 BCSC 466     2018 BCCRT 304 2018 BCSC 467     2018 BCCRT 300 2018 BCSC 471     2018 BCCRT 297 2018 BCSC 473     2018 BCCRT 294 2018 BCSC 474     2018 BCCRT 291 2018 BCSC 483     2018 BCCRT 285 164  2018 BCSC 484     2018 BCCRT 282 2018 BCSC 487     2018 BCCRT 279 2018 BCSC 493     2018 BCCRT 276 2018 BCSC 497     2018 BCCRT 273 2018 BCSC 498     2018 BCCRT 270 2018 BCSC 499     2018 BCCRT 267 2018 BCSC 509     2018 BCCRT 264 2018 BCSC 512     2018 BCCRT 252 2018 BCSC 514     2018 BCCRT 232 2018 BCSC 516     2018 BCCRT 229 2018 BCSC 517     2018 BCCRT 215 2018 BCSC 523     2018 BCCRT 224 2018 BCSC 524     2018 BCCRT 221 2018 BCSC 531     2018 BCCRT 218 2018 BCSC 535     2018 BCCRT 213 2018 BCSC 537     2018 BCCRT 211 2018 BCSC 541     2018 BCCRT 207 2018 BCSC 552     2018 BCCRT 204 2018 BCSC 553     2018 BCCRT 201 2018 BCSC 555     2018 BCCRT 195 2018 BCSC 556     2018 BCCRT 192 2018 BCSC 562     2018 BCCRT 183 2018 BCSC 563     2018 BCCRT 180 2018 BCSC 564     2018 BCCRT 154 2018 BCSC 565     2018 BCCRT 144 2018 BCSC 566     2018 BCCRT 132 2018 BCSC 567     2018 BCCRT 139 2018 BCSC 568     2018 BCCRT 136 2018 BCSC 569     2018 BCCRT 133 2018 BCSC 570     2018 BCCRT 129 2018 BCSC 571     2018 BCCRT 123 2018 BCSC 573     2018 BCCRT 120       2018 BCCRT 117       2018 BCCRT 116       2018 BCCRT 102       2018 BCCRT 99       2018 BCCRT 96       2018 BCCRT 93       2018 BCCRT 88       2018 BCCRT 81       2018 BCCRT 75       2018 BCCRT 72       2018 BCCRT 66 165        2018 BCCRT 63       2018 BCCRT 60       2018 BCCRT 57       2018 BCCRT 51       2018 BCCRT 48       2018 BCCRT 45       2018 BCCRT 42       2018 BCCRT 39       2018 BCCRT 31       2018 BCCRT 27       2018 BCCRT 21       2018 BCCRT 18       2018 BCCRT 16  

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