5.0 Findings and Discussion

This section presents the findings from three sources:

5.1 Key Themes from the Literature Review

The bibliography in Section 7 contains selected references related to legal clinics in Canada over the past 30 years. Key themes addressed in this literature concern the typology of clinics, their philosophy, usage by clients, outcomes and impacts of COVID-19.

5.1.1 Typology of Legal Clinics

Noreau and Pasca’s 2014 typology of the three primary models of “justice de proximité” include:

While the legal clinics described in this report may include any or all of the objectives of these three models, their most frequent commonality in terms of legal service delivery lies in the juridical counter model. Even if they exist in some of the clinics, activities described for the intercession and multi-functional models are not included in the jurisdictional descriptions because they do not correspond to the definition of a legal clinic in Section 3.

5.1.2 Philosophy of Legal Clinics

To the extent that philosophies are articulated, they tend to vary from jurisdiction to jurisdiction. Ontario has most clearly defined a philosophy of its clinic system. In 1976, Ontario proclaimed a regulation under the Legal Aid Act allowing for the funding of community legal aid clinics. Although other aspects of legal aid delivery continued to expand after this date (e.g., certificates for private lawyers, advice lawyers, duty counsel services, staff law offices and student legal aid societies), Abramowicz states that the three most fundamental defining characteristics of community legal clinics in Ontario are:

Also referring to Ontario, in 1991 Blazer outlined the following principles guiding the development of the clinic system:

These descriptions of clinic philosophy relate specifically to Ontario. While applicable to other jurisdictions in distinguishing clinics from a purely case-by-case legal aid approach, there are nonetheless varying levels of community engagement in each jurisdiction, and different degrees of scope in terms of the range of legal matters that are addressed. For example, in his 2019 report, “Roads to Revival” in British Columbia, Maclaren describes the Mental Health Law Program of the Community Legal Assistance Society as a “mixed model clinic”. This clinic is scalable and adaptable to changing circumstances, using tariff lawyers to extend service reach to all areas of British Columbia, but relying heavily on a core of lower-cost advocates to serve the legal needs of vulnerable clients (Maclaren 2019: 17).

Administratively, clinics in the Atlantic provinces generally provide service in the context of legal aid programs, but philosophically their orientation is simply to provide information and advice. In this way, the service is distinct from individually approved cases covered for full representation by the province’s legal aid plan.

5.1.3 Types of Issues and Outcomes Experienced by Legal Clinics

Bertrand and Paetsch describe outcomes reported by clients of four community clinics in Alberta (Calgary Legal Guidance, Edmonton Community Legal Centre, Central Alberta Community Legal Clinic in Red Deer, and Lethbridge Legal Guidance). Almost 80% of clients attended the clinic for 15 to 44 minutes. The first five issues (comprising 76% of the total) were divorce, spousal and child support, landlord/tenant, parenting after separation, custody/access, and immigration. The remaining 25% of issues included a range of criminal, civil, and family matters (Bertrand and Paetsch, 2018: 13).

Of the approximately 6,600 respondents, slightly over 90% said they “strongly agreed” or “agreed” that as a result of their clinic visit, they had a better understanding of their legal rights, their legal responsibilities, their legal options, and what to do next. In addition, 89% said they had a better understanding of the pros and cons of their options (Bertrand and Paetsch, 2018: 20).

There is still considerable work to do to develop outcome measures that are truly client-centred and that could be of benefit in the legal clinic system. As noted in a 2015 Canadian Bar Association (CBA) report,

Client-focused services shift the attention away from the traditional prominence on process by justice system players to a people-centred emphasis on outcomes. Formerly the fact of providing high quality service to ensure fair procedures was the key output for legal service providers, and few providers measured outcomes of those services. Legal aid providers and their funders are beginning to grapple with the more difficult assessment of ‘what happened’ as a result of the legal assistance, although this is still largely a ‘brave new world.’

Benchmarks for the Canadian legal aid system could take into account at least three general categories of outcomes: procedural, substantive and systemic. Procedural outcomes include factors such as the client’s level of satisfaction with the process and the level of stress experienced. Satisfaction has several dimensions: did the client feel well prepared, perceive the process to be fair, perceive that she or he was heard, and so on. Substantive outcomes can again be measured from the perspective of the individual’s satisfaction with the outcome (initial and long-term). .. (or). .. against an objective standard (evaluation relative to other similar cases). Other qualitative objectives include empowering the individual through information, education and building legal capabilities. Systemic outcomes include the extent to which there is feedback from the process and outcomes into the justice system. Such feedback can encourage learning and innovation, and consideration of whether the legal assistance contributed to resilience and prevention of future dispute. (CBA, 2015, 100-101)

The “Measuring the Impact of Legal Services Interventions” project of the Canadian Forum on Civil Justice is a multi-phase project, running from 2019 to 2024 to assess the effectiveness of different types of legal service interventions on the outcomes of legal disputes, including long-term effects on the health of clients and costs and benefits over time. Legal clinics in several jurisdictions are a key aspect of this study (Farrow et al., 2020).

5.1.4 Service Gaps and Unmet Needs in Legal Clinics

In a report for the Canadian Bar Association, Buckley described mapping projects in British Columbia and Alberta indicating that in rural areas there are more delays in accessing legal clinic services than in urban areas. The findings highlight: the lack of these services in many communities, frustrations and barriers using the telephone or internet to access help, a lack of lawyers in the North willing to do legal aid-type work, increased need for help with Indigenous populations, limited access to services for those with lower education and lower income, and lack of affordable housing to enable people to manage their own lives (Buckley, 2010: 47).

Buckley further stated that in Canada, community clinics are often overwhelmed by individual casework so that the strategic, long-term activities and test cases to shape laws and protect rights may not take place (Buckley, 2010: 9).

A report entitled “An Analysis of Poverty Law Services in Canada” by the Social Planning and Research Council of British Columbia and published by the Department of Justice Canada analyzed poverty law legal aid services delivered in each Canadian jurisdiction, as well as poverty law legal services delivered by community organizations. It highlighted both a lack of funding for the delivery of such services in the community as well as a lack of comprehensiveness in overall legal aid coverage for poverty law matters. The report was published in 2002, so it is not possible to rely fully on currency of the data.

5.1.5 Impact of COVID-19 on Type of Cases Dealt with by Legal Clinics

Impacts of COVID-19 on the operations of legal clinics, and their strategies to deal with those impacts, are dealt with in Section 5.3.4 – 5.3.7 of this report. It is also important to understand the impact of COVID-19 on specific case types that may be dealt with by clinics. Macnab asserts that the pandemic has impacted every area of law, e.g., family, criminal, intellectual property and competition law, but he quotes employment lawyer Howard Levitt as saying that “no area of law has been affected more than labour and (un)employment law.”Footnote 11

5.2 A Summary of Clinic Structures in Each Jurisdiction

Section 8 contains summaries of legal clinic delivery systems in the form of matrices for each jurisdiction. The matrices provide information on 1) funders, 2) the primary legal focus, 3) number of clinics, types of settings and sub-categories of issues dealt with, 4) the extent of service, 5) governance structures, and 6) pre-COVID-19 delivery modes and adaptations.

The following broad generalizations can be made based on these matrices:

5.3 Findings from Key Informant Interviews

The researcher conducted telephone or virtual semi-structured interviews with 24 respondents drawn from all 13 Canadian jurisdictions, roughly proportional to the number and diversity of legal clinic types in the jurisdiction. Five interviews were in British Columbia, four in Ontario, four in Quebec, two in Manitoba, and one in each of the remaining nine jurisdictions. In several cases, two respondents from the same organization were included in the same interview to add depth. Respondents who had an overview of delivery in their jurisdiction were selected for an interview wherever possible (e.g., as a key funder from government, a law foundation, legal aid, or an association of legal clinics). Interviews were also held with directors or other key staff in clinics serving specific populations or involving diverse delivery modes, e.g., pro bono clinics serving immigrants, family justice centres, mobile clinics, PLEI deliverers and student clinics.

5.3.1 Funding Models

There is no consistent funding model for legal clinics across Canada, and in almost all jurisdictions, there are several types of funders. In any given jurisdiction these may include the Department of Justice Canada, provincial or territorial governments, a provincial or territorial legal aid body, law foundations, a provincial law society, a provincial pro bono organization, non-profit community organizations, university law departments, and provincial gaming grant support (i.e., government revenues from commercial gambling enterprises).

A final form of financial support is through services provided pro bono by the private bar and/or students under lawyer supervision, usually – but not always – based on clients’ income thresholds and/or by setting time limitations to the service provided.

Primary Funders in Each Jurisdiction

Law foundations are a primary funder of legal services in British Columbia, Alberta, and Saskatchewan, and a significant partial funder in New Brunswick, Nova Scotia, Prince Edward Island, and Newfoundland and Labrador.

Provincial/territorial legal aid plans are a primary funder of legal clinics in Manitoba, Ontario, New Brunswick, Nova Scotia, Prince Edward Island, Newfoundland and Labrador, the Yukon, Northwest Territories, and Nunavut. Federal and provincial governments primarily fund legal aid plans.

Law school-supported clinics exist in all jurisdictions that have law schools (i.e., all except the three territories, Newfoundland and Labrador, and Prince Edward Island). These clinics offer information and advice services provided by students. The services are provided on campus or in community clinics under the supervision of a lawyer. They are provided pro bono as part of the students’ course credits.

Pro Bono organizations in British Columbia, Alberta, Saskatchewan, Ontario and Quebec provide opportunities for lawyers to give assistance to qualifying individuals at no cost, often in a legal clinic setting. For example, in British Columbia, Access Pro Bono – which receives significant funding from the BC Law Foundation – coordinates pro bono delivery of legal services in 114 locations around the province. In May 2022, it will be starting a new service which combines the concepts of 1) legal clinics as a teaching mechanism for law students, and 2) outreach to underserved communities. It is described as follows:

.. . the Everyone Legal Clinic will serve as an experiential learning centre for articling students and new notaries, and as a solo and small firm incubator for practitioners who then provide affordable legal services to underserved communities across BC. In its first year the Clinic will engage dozens of professional mentors, and employ four supervising lawyers, one supervising notary, and one administrator to remotely train, supervise and support 25 articling students and five new notaries over two six-month semesters.

5.3.2 Evolution of Legal Clinic Models

As described above, the models and their sources of funding vary, so the picture of their evolution also differs. In broad terms, clinic “systems” began to appear in the 1970s (e.g., in British Columbia, Saskatchewan, and Ontario), in significant part as a realization of the inadequacy of a conventional legal aid approach to meet poverty and other civil legal needs.Footnote 15 The concept of clinics was associated with community-based delivery, earlier intervention, and “wrap-around” services (i.e. ones that potentially addressed other legal and non-legal issues associated with the client’s presenting legal matter).

As described by the key informants, the evolution of clinic systems has not been smooth. In the 1970s, funding of individual clinics was often initiated by the federal Department of Justice and supported by provincial governments. Administratively, funding of these clinics began to be consolidated in the 1970s, usually under the umbrella of a provincial legal aid organization.

In British Columbia, following a major cutback in financial support to the Legal Services Society in 2002 by the provincial government, the initiative to support and expand clinics was taken over by the Law Foundation, which remains the primary clinic funder in that province.

The Law Foundation of Saskatchewan has been a consistent funder of the clinic systems since the 1970s. Ontario proclaimed a regulation in 1976, following the 1974 Osler Report, allowing the funding of community legal aid clinics. These clinics have maintained considerable independence through the establishment of community boards and an overarching Association of Community Legal Clinics. In Manitoba, the four Atlantic provinces, and the three territories, the legal aid plans have existed since the 1970s. Within the context of these plans, clinics have developed, some integrated in the legal aid office structure (e.g., New Brunswick, Nova Scotia, and Manitoba) and others (e.g., Newfoundland and Labrador, and Prince Edward Island) through PLEI organizations. Quebec’s centres de justice de proximité – of which there are now 11 in nine regions – were created in 2010. There are also numerous clinics in community associations in Quebec, which have primarily developed over the past ten years. In Nunavut, the concept of “clinics” has been mostly associated with activities of Indigenous courtworkers meeting with clients in social service (e.g., health) offices in over 20 small communities where there is circuit court.

5.3.3 Strengths and Weaknesses of the Legal Clinic Model

Strengths

Key informants interviewed for this project felt that legal clinics have strong advantages over other models in addressing service needs:

Weaknesses

Key informants’ perception of the weaknesses or vulnerabilities of the clinic system focused on financial issues rather than service quality:

Key informants felt that the legal clinic model creates savings in the social service, health, and housing sectors because clinics can address multiple service needs early in a process. They also felt that larger and longer-term financial commitments to the legal clinic system are needed and would be beneficial to federal and provincial governments.

5.3.4 Impact of COVID-19 on Funding of Clinics

During COVID-19 and as of this writing in the summer of 2021, levels of funding have allowed legal clinics to meet service demands. During the initial lock-downs that began in March 2020, there was less demand for services. For example, for much of this period, courts were closed, which in turn eliminated circuit court travel expenses. Furthermore, even though in most jurisdictions service was continued either in person or remotely, fewer clients availed themselves of virtual contacts. There have been, and will continue to be, extra COVID-19-related expenses such as plexiglass barriers, masks, computer adjustments and set-up for staff to work remotely. To date, this has generally been managed with existing funds and/or with special grants from provincial law foundations and the federal government.

A key issue in regard to maintaining service levels during COVID-19 has been the commitment by law foundations in several jurisdictions to maintain funding levels despite extremely low interest rates. This has been done by accessing the foundations’ reserve funds. However, drawing down these reserves cannot continue indefinitely without jeopardizing the financial stability of the foundations themselves.

The future outlook is considerably less positive:

These combined factors led many key informants to emphasize the need for significant increases in federal and provincial funding to help stabilize and support the ongoing delivery structure of legal clinics in the post-COVID-19 world.

5.3.5 Measures to Serve Clients During COVID-19

Measures to adapt to COVID-19 while serving clients included:

5.3.6 Impact of COVID-19 on Legal Clinic Service Delivery to the Most Vulnerable Populations

As noted in the previous section, the most vulnerable legal clinic clientele are often challenged in terms of technological access. The use of technology to replace in-person applications and hearings is often a major advantage for lawyers. However, for rural or northern clients, for parents with children at home, and for persons who might not have easy access to the clinic, it can be a barrier for many of the clinic’s most vulnerable clients. These clients may be homeless, not have access to computers or smart phones (or any phone), be seniors who are uncomfortable with technology, or persons who simply lack privacy to comfortably hold conversations about personal or criminal (e.g., domestic violence) matters in their homes. Even if vulnerable individuals have smart phones, they may not have sufficient data or the necessary WIFI to access a clinic.

In addition to technological vulnerability, some immigrants may lack language skills to conduct telephone conversations. Some Indigenous clients or others who feel intimidated by legal matters may only be comfortable if they have physical access to a clinic.

5.3.7 Innovative Service Modalities Arising out of COVID-19

The service modalities arising out of COVID-19 that are considered innovative and likely to be continued in the future (with the caveats noted in the previous section) in one or more jurisdictions include:

5.3.8 Data Collected by Legal Clinics

The extent of data collection varied from jurisdiction to jurisdiction, as well as within jurisdictions.

The data that are most frequently collected focus on gender, income, area of law, and - where required for funding purposes - Indigeneity. These are usually critical data to determine eligibility for certain types of services.

Somewhat less frequently mentioned were age, marital status, geographic location, distinctions among various Indigenous groups, gender, ethno-cultural identity, country of origin, languages spoken, level of education, method of contact, and type of service requested/provided.

In some provincial services, staff are asked to record how their time is used, the number of attendances at the clinic, and court volumes.

5.3.9 Who Determines the Type of Data Collected

In most cases, the type of data collected is determined by the organization itself, rather than by a funding authority. Where a local board of directors governs the clinic, data requirements are usually established by the board with staff. Specific requirements for data collection are less likely for organizations funded by federal and provincial governments. Only two key informants said that outcome data is – to their knowledge – collected by clinics in their jurisdiction after the delivery of the service.

5.3.10 Data that is not Collected but Could Answer Important Questions

Key informants mentioned three types of data that are not routinely collected but that could lead to more effective outcomes, appropriate referrals and/or follow-up appointments:

5.3.11 Level of Data Aggregation

In Manitoba and some Atlantic provinces where legal clinic services are delivered by a provincial legal aid organization, the capability exists to report aggregated data provincially. Ontario is working on developing an aggregated system, but this was described as a “work in progress” because the data are owned locally by each clinic’s board of directors. The Network of centres de justice de proximité in Quebec reports data of each centre in a consistent way in their annual report, but an aggregated version has not been prepared/published by the province.

5.3.12 Main Legal Needs of Clinic Users

According to interviewees, clinic users’ primary legal needs fall into three categories:

The need for immigration and refugee support was also mentioned, but less frequently than the three areas listed above. Clinics are sometimes nested in a community service that serves a full range of immigrant needs.

Other observations about legal needs include the following:

5.3.13 Data Supporting Analysis 0f Social Return on Investment

Cost-benefit analyses first determine the cost of delivering a program, and then convert all key outcomes of a service into monetary units. Social Return on Investment (SROI) analysis is a more complex form of cost-benefit analysis that requires consideration of the broader social and economic costs and benefits of programs. These social benefits are often intangible (e.g., an increase or decrease in public confidence in the justice system), so are difficult to monetize.

Key informants were asked whether data is collected in their jurisdiction that would provide the basis for an SROI analysis. The response of almost all respondents was that at present the outcome data for this type of analysis is lacking. Nonetheless, they expressed interest in various forms of economic-social analysis and felt that an SROI approach could be extended to government justice policies and laws as well. For example, one respondent from a Western jurisdiction suggested that a 48-hour order of possession with automatic eviction if a tenant is five days late in paying rent is extraordinarily difficult to act on for a tenant. Eviction may ultimately result in social assistance, mental health, medical or even child protection costs borne by government. Thus, effort by clinics to advocate for policy changes may ultimately be cost effective both for government and for individuals.

A key informant from another jurisdiction cited statistics that when homeless individuals are detained pending criminal charges, they are incarcerated at a higher rate than the population at large. They also have a higher rate of incarceration at sentencing. He felt that homeless clients who receive legal assistance may have reduced rates of incarceration, and that a SROI analysis of these cases might show that the costs of clinic services sustained by government are offset by reduced correctional system costs.

Several respondents talked about other types of economic analyses involving costs and benefits to support the business case for their service. For example, a pro bono service stated that by multiplying the time volunteer lawyers devote to clients by their billable hours, and then comparing the result with the pro bono service budget, they could determine that they have leveraged four times the value of the legal services. Overall, despite almost unanimous interest and support for the concept of cost-benefit SROI analyses among the key informants, the data for this type of analysis are currently not being collected.