Bonus Episode: Yves Faguy speaks with John-Paul Boyd Q.C. and Kyla Sandwith to discuss how to use COVID-19 as an opportunity to fix our justice system.
Bonus Episode presented by CBA National and CBA Futures: After The Pandemic, The Future of Justice, Ep 1
In this first episode, the guests share their experience in trying to launch projects that were aimed at making justice more accessible for regular Canadians, but then ran into roadblocks. They offer some ideas about what level of effort is needed to get reform of our justice system onto the legislative agenda.
John-Paul Boy, Q.C. is a lawyer, trained mediator, parenting coordinator, and arbitrator as well as the principal at John-Paul Boyd Arbitration Chambers.
Kyla Sandwith is a legal operations consultant and the founder of De Novo Inc.
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After the pandemic: Fighting inertia
Yves Faguy: You are listening to the Canadian Bar Association National Magazine.
Yves Faguy: Hi, I'm Yves Faguy the Editor-in-Chief of CBA National Magazine. Welcome to the first episode of After the Pandemic: A conversation About the Future of Justice produced in partnership with CBA futures.
COVID 19 has put many of our institutions to the test including our justice system which has been caught completely off-guard and forced to adapt on the fly. Now a rising chorus of voices is calling on governments, regulators, the courts and practitioners to turn this crisis into an opportunity to set things right. And if they do there is a chance they can start rebuilding a more responsive and accessible system of justice for Canadians. But the question is can the key plays in the legal sector learn to work together to implement meaningful changes?
To kick off our series today I'm joined by two lawyers who have given these questions a lot of thought. Our first guest lives and breathes family law. He's practiced it for two decades, writes about it, has spent years de-mystifying the justice system for the public and to put it mildly has not been shy about advocating for an overhaul of how our justice system handles family disputes in particular. In 2013 he took a position as the Executive Director of the Canadian Research Institute for Law and the Family, a non-profit affiliated with the University of Calgary which has since seen its funding cut.
He's a trained mediator, parenting coordinator, and an arbitrator. In 2018 he returned to private practice providing services throughout Alberta and British Columbia with Wyse, Shibel, Bukowskis and is the principal of John-Paul Boyd Arbitration Chambers. I am pleased to have us with us today, John-Paul Boyd QC, welcome to the podcast John-Paul.
John-Paul Boyd: Thanks Yves.
Yves Faguy: And our second guest is also passionate about the legal industry. She's a sought out legal operations consultant. Her fans call her a catalyst for change in the way we work and think about the practice of law. Driven by a desire to help individual lawyers grow she's currently working on building an online, on-demand course for lawyers across Canada who want to start their own law firm, but doing things differently. Presumably differently at least in the way practices have been run since the Spanish influenza, I'm guessing. Please welcome Kyla Sandwith of De Novo Inc., welcome to the podcast Kyla.
Kyla Sandwith: Thanks for having me.
Yves Faguy: So let's get right into it. The former Chief Justice of the Supreme Court Beverley McLachlin recently was bemoaning the woeful inability of our courts to adapt quickly to provide what would – what most would agree is an essential service.
Obviously the justice system has been caught completely off-guard. Courts have had to restrict access and slow down their work. They've allowed some appearances to take place through video conferencing or by phone. Limitation periods have been suspended and some have been scrambling to facilitate e-filing of documents. So there have been some efforts to pivot.
The uncomfortable truth though is that the system has been barely holding it together for years, we all know that. Struggling with backlogs, unreasonable delays. So the access to justice crisis has been very well-documented in Canada. Let me ask you why is it that everybody acknowledges it and yet we as a society are incapable, or not prepared to commit the kind of funding and effort required to make sure we fix it so that regular citizens can actually resolve their disputes in a reasonably timely manner? John-Paul do you want to try that first?
John-Paul Boyd: Sure, I think part of the reason is the incredible inertia that the status quo carries. You know most of the proposals that have been made about how to overhaul the justice system call for a radical transformation of the court system and there is a lot of money tied up in taking steps like that. And so my suspicion is that rather than spending the millions of dollars that would be required now to effect a meaningful change that might take four, five years to complete we are essentially holding our nose and waiting until the ship crashes.
I mean we've known for decades that there is a terrific access to justice problem in Canada. The wave of reports that came out in 2012 and 2013 were absolutely nothing new to anyone. And it seems to me that we're almost you know waiting for that moment of supreme crisis before we decide that we have no choice but to allocate the funds and the effort that's going to be required to reform the system. And since at least prior to the pandemic the length of time that was expected to pass until we reached that climax of crisis was so vastly indeterminate no government Federal, or provincial, or territorial had the pressing motivation to sit down and start spending that kind of money.
Yves Faguy: Kyla, is this the crisis do you think that will prompt us into action?
Kyla Sandwith: You know I hope so. I mean I think that you know for a very long time as John-Paul pointed out the system you know hasn't reached that absolute crisis point. By reaching the crisis point we mean that it's not working for all of its stakeholders. So right now it's currently somewhat working for some of the stakeholders namely you know the lawyers, and you know the judges who have always done you know things the way they have. And you know the more wealthy in society, the corporations who have access in a meaningful way.
So this crisis has brought that inaccessibility to the forefront for all the stakeholders now and so I'm really hoping that, that is you know this is something that we – an opportunity that we seize upon. To me it would be a real loss if in a months' time you know we're back at it and people kind of go whoo you know, we dodged that bullet and carry on. I think we'll see real change, and a real drive to make that change the longer this carries on. And I hate to say this but that would be the silver lining of this dragging on for you know a year or more.
Yves Faguy: So I want to rewind just a little bit because Kyla you know John-Paul and there's a reason why I had you both on is that you both worked together on a project together in the past before the pandemic obviously. And that was the Aspire Legal Initiative. And perhaps you could tell us a little bit what you were trying to achieve in that project and what were some of the challenges you faced?
Kyla Sandwith: So what we were trying to achieve, it was the Aspire Legal Access Initiative and it was really born out of you know what we were seeing were you know a real lack of access to legal services particularly in the area of family law. And so you know a group of lawyers, the Dean of the University of Calgary Ian Holloway and Benny Young the then President of Law Society of Alberta they decided you know to try and build you know essentially what was a 21st Century law firm. And you know build something innovative that really helped us sort of rethink how legal services were delivered you know the way we built our law firm.
And we were also training new lawyers to think outside the box in terms of legal service delivery. So that was what we aimed to do. Some of the roadblocks we came up against I mean I think some of the roadblocks were intentional. So the Alberta Law Society wanted us to work within – work within their rules – existing rules. So most not for profits delivering pro bono services don't comply with the rules. Only lawyers and law firms can deliver legal services to the public, but pro bono legal services to the public regularly outside of that sort of framework.
So the Law Society greatly turns a blind eye to encourage you know those services. But we weren't allowed to do that. So then we had to come up with you know sort of a crazy structure in order to comply with the rules and then we also had sort of funding issues. We just didn’t have enough leeway to do what we were trying to do which was something pretty phenomenal frankly. And the funding that you know, the response to the funding that we got was – I mean it lacked vision.
The Ontario Law Foundation you know granted us $250,000 in funding but that was project funding. So they did see you know the potential of this project. Unfortunately our own law foundation didn’t see you know, couldn't quite see the – you know the vision of this unfortunately and that was one of the major roadblocks was that we just didn’t have the time.
Yves Faguy: John-Paul you've also had issues with funding in the past. You led the Canadian Research Institute for Law and the Family. It had to close down over funding issues as well relatively recently. I wonder you know does you know, what are your views on that? And do you worry sometimes that the fact that these institutions get shut down leave the impression among people that you know we – these efforts at modernising our justice system don't work?
John-Paul Boyd: Well one of the problems we have with how Canada’s law foundations are structured is that each one of them has a mandate that is specific to their territory or province. So you know when we look at the few Canadian projects that have taken a national perspective and right now I'm thinking of Julie McFarlan's National Self-Represented Litigants project and specifically the paper that she wrote about self-represented litigants in 2012. Well she did research talking to self-reps in Alberta, British Columbia, and Ontario and had funding from each of those three law foundations. And it is a requirement of getting funding from any particular law foundation that the work you do have a direct impact on the people of that particular province.
I mean that's understandable. It's part of their corporate mandate. But the problem that we have is that there aren't – there is no organisation including the association of Canadian Law Foundations which takes a truly national vision.
And what that means is that for organisations like the former Canadian Research Institute for Law and the Family that have that national vision and that national mandate they're constantly juggling hoops, making applications through multiple funders in order to get the funding to tackle multi-provincial projects.
And so you know one of the solutions that occurred to me was that if you take the Association of Canadian Law Foundations and if that organisation were able to tithe its members to a certain percentage of their annual income in order to create a pool of national funding that's probably the only meaningful way to support organisations that have a national mission otherwise you're stuck in that parochial sort of you know vision where you're stuck in that particular province, or that particular territory. And the other options that are available for funding such as shirt grants really are notoriously inadequate for not for profit organisations. They work quite well for universities, but they were never a viable option for the research institute. And so that's a real shame.
But that kind of lack of national vision about the lack of a national funding body that's able to support innovative research on family justice, and access to justice means that we're kind of reduced to these pockets of groups from place to place. And that aren't able to coordinate with themselves and take that truly national approach and really grab the bull by the horns so to speak.
Yves Faguy: Well and that situation mirrors our Federal structure where we have governments and especially at the provincial level are responsible for the administration of justice. How do we get it on their legislative agenda to work through these issues?
John-Paul Boyd: Well I mean so let's take a step back and think about what's involved in getting something on the legislative agenda right? First if you're going to do something more significant than a tinkering around the edges in general you know within each provincial Ministry of Justice you wind up having to setup a group that is tasked to developing the policy that then informs the drafting of the legislation. And any government that's worth its salt will take the time to consult with the different stakeholder groups.
And then with the feedback from the stakeholder groups and the research that is done internally within the different ministries that produces a policy which goes to government for approval. And if government approval is received then it goes off to drafting council and drafting councils spend eons converting otherwise cogent and understandable concepts into dense and impenetrable legalese and then it has to actually get space on the legislative agenda. And so you know thinking back to my own experience with British Columbia's Family Law Act that replaced the Family Relations Act you know first government spent two to three years on a Family Relations Act Review Advisory Group and then it was doing research. And the research led to the publishing of a bunch of position papers that were sent out for public feedback and that – and the response they had to that led to the founding of a Family Law Act Advisory Group that led to the drafting.
That in turn required further feedback from the Canadian Bar Association and other groups. And then it had to find space on the legislative agenda. And so each year, or at least each legislative session there are a dozen ministries who are competing for space on the government's list. And so just as the Attorney General might be fighting to bring forward something innovative in the realm of family law which the Family Law Act certainly was it's competing with you know Forestry who wants something about clearcutting. It's competing with the hospitals who are looking for more funding and different kinds of legislation. And in short getting anything through that kind of long, multi-year process requires nothing short of a miracle because I mean just think about the time commitment, the commitment of staff resources internally within the Ministry, and then the allocation of millions of dollars to support that particular legislative agenda, and then government having the ability to prioritize that particular piece of legislation over the others in order to actually get it on the docket.
I mean when the Family Law Act had been drafted and was ready to go as it happened Christy Clark who was then the Premier of British Columbia happened to be running on a slogan that was something to the effect of families first. And I don't know that had Miss Clark decided not to run on that particular agenda whether the Family Law Act would have ever made it to the legislative table.
Yves Faguy: So I mean that's interesting but then at the same time – and I understand that it is hard to get reforms through government but you know, you've both pointed out to me in our past conversations that we've seen a worrying trend over the years and this worrying trend is that people are opting out of the justice system. And we are a country that prides ourself on the rule of law so this should be pretty alarming to our political leaders and our elected representatives.
You know Kyla what would you suggest we do to get the broad issue of fixing our justice system back on the legislative agenda at the provincial level, or at the federal level?
Kyla Sandwith: Yeah, I – you know I think what right now is a really good opportunity. It's like John-Paul said. It's one of those things where some of this stuff takes a really long time, but in this circumstance we're already seeing some legislative changes that are happening very, very quickly in order to accommodate for some of the restrictions caused by COVID. And whether that's you know face to face swearing of affidavits those kinds of things. You know to be fair those are tinkering around the edges, but this I think, this pandemic is really going to be you know one of those things that prompts people to bring this front and centre.
We know that our government is putting together a working committee on the judiciary so these are things that are already happening. And so it is – the process is started and that because of the urgency of this pandemic you know that we won't lose traction and we won't lose steam on this. But you know I think JP's right it's – we've got so many different factions. We've got an independent bar. We've got an independent judiciary and then we've got the government. And you know our system is predicated on the independence of those you know of the judiciary and the Bar and so really getting anything done on a major, systemic level is going to require that those parties all work together and that takes a lot of will and leadership frankly.
Yves Faguy: JP – John-Paul I think you wanted to cut in there?
John-Paul Boyd: Well you know I think Kyla's right in as much as the pandemic offers us collectively as a society an opportunity that we have not previously had. You know one of the – you asked the question about why is it so hard to get issues about legislative reform and access to justice on the agenda?
And you know family law is such a good example, or example of why this is a problem and you know I mean aside from the obvious fact that in general family law disputes rarely effect massive corporate interests don't have you know a massive impact on you know, on the economy or on unemployment rates and things like that. You know probably because of the public writing I've done I get a lot of calls every week from individuals from across Canada who have experienced absolutely jaw-droopingly horrific litigation experiences in their family law problem. I mean we're talking about files that have gone on for 8, 9, 10 years. We're talking about repeated histories of breaches and lack of compliance. And from what from all accounts appears to be just an outright travesty of justice, and an absolute you know multiple examples every week of the complete dysfunction of the system.
And you know I have always been so surprised that I could hear from so many Canadians on such a frequent basis and yet nothing seems to happen. So we have the media talking about this, and what the media does is they focus on one story, and then once the story has run its legs then it's done and you don't hear about continuing problems. And so what I've told people is you know the reality is government knows that this is a problem. The judiciary knows it's a problem. The Law Societies knows this is a problem, but you know you on your own are not going to be able to just by phoning your MLA, your MPP, or your MP effect meaningful change. You've got to do something more.
And so – but until you know all of these people who are experiencing all of these grotesquely dysfunctional aberrations of the justice system find a way to gather together to create that level of public outrage that's required to actually create movement I don't think we're ever going to see it.
But this virus has had this – sorry I was going to say it had a wonderful impact. It's obviously not a wonderful impact. It has had a surprising impact in terms of demonstrating the fundamental fragility of the justice system in a way that I don't think any of us could ever have predicted as recently as December of last year.
Kyla Sandwith: Yeah, I would agree with that and I think part of the issue is, is that you know when people talk about access to justice they – it's often characterised as a financial issue right? So it's looked as well that's a problem for poor people that cannot afford the legal system, and a lawyer. And in reality that's not the case. Many lawyers can't afford other lawyers.
So I think it gets misrepresented and often you know even it's an easy thing to dismiss because the fix is more social welfare right? And not many politicians have an appetite for that particularly these days. So it's easy to slough it off the agenda and dismiss the problem altogether because John-Paul's right is that these aren't major corporations who have the ear of the government. These are individual, everyday people who sometimes don't even know that the experience that they've had is an abomination of what you know, of the process. And go on for years. You know eight years with a lawyer who you know is treating you as their private piggybank, that is an abomination. And people don't know that. They stick with it because they're convinced that lawyers are there to help them, and that there's no other way to access the system.
So better the devil you know than going somewhere and you know, trying it on your own, or trying another lawyer.
Yves Faguy: So John-Paul you're working on a CBA proposal to reform the Code of Conduct for Family Law lawyers. And this would allow them to practice as I understand it in a less adversarial mode and give more premium to the interests of children, more importance on par with the interests of lawyers' clients.
It's a really interesting and fascinating project, but it addresses some of these – some of these baked in habits that we have as a profession and you know I think a lot of people would probably respond a little skeptically that adversarial litigation is really built into our DNA. So why is it that we need to revisit our usefulness in light of this discussion?
John-Paul Boyd: Well I think that this actually sort of touches on some of the access to justice issues that Kyla was referring to when she said that access to justice isn't only about Canadians who are you know have low levels of income. That there are some inequities that are baked into the system that undermine what is to my mind an appropriately functioning family justice system. And you know you don't really have to look very far to look at systemic problems. Often they're quite in front of your nose.
Like Alberta's Family Law Act for example mentions the term agreement precisely zero times. It's not even written in the legislation. And so if you are an average Albertan who is separate from your partner and you believe that you're smart enough that you can read the legislation and figure out what's going to happen, you're smart enough to find it, you start reading it nothing in there tells you by the way there is something other than court that you can use to resolve your legal problem right? Every time you're reading in the Family Law Act and it says something about child support, something about spousal support, something about parenting time it says well to get a court order for this apply to do X, Y, and Z.
And so that's an example of a structural problem where we have legislation that is designed to drive people towards the courts right? But from a family perspective – and you know I have the view that family justice is fundamentally different than other species of civil justice if for no other reason than the fact that you know the people who are the primary beneficiaries of justice are not just the adults who are leaving their relationship, but it's their children. And we know for example because the social science is quite clear on this we know about the adverse effects that parental conflict have on children.
In fact there are only two factors that are critical to children's positive adaptation from the separation of their parents. One is the nature and quality of children's relationships with each of their parents and the other is the nature, intensity, and duration of the conflict between the parents that the children are exposed to. And so when we take family law problems and we shove them into the litigation system the way the Alberta Family Law Act tells us they are we are in a system where children are being exposed to a costly, time consuming, and destructive way of resolving family law disputes when there are other ways that you could choose to address the problem.
And so the project that I'm looking at in terms of amending the Code of Conduct I mean the one that I think of immediately is Rule 5.1 that talks about the function of the lawyer as advocate. And that rule and its commentaries admonishes lawyers to – you know to fiercely advocate for their clients, to ask every question no matter how distasteful. To pursue every line of enquiry no matter how distasteful.
That provision, there is a commentary that does suggest that lawyers may consider the interest of clients but only if it doesn't prejudice the interests of their clients and even then it's a may rather than a must. And so the problem we have is that if you're going to be a sensitive lawyer who is aimed at the long-term consequences of the family, and leaving the family as a functioning unit heading off into the future able to cooperatively co-parent their children that means that you need to find less adversarial ways of resolving disputes.
Which means that you'll need to find a way out of court and if you can't go out of court then you need to be able pursuant to the Code of Conduct to ethically advocate an approach to your client which considers not only the outcome for your client but the outcome in favour of the children. You need to be able to advocate solutions that minimize conflict rather than promote it. And right now if you do those things you're in breach of the Professional Code of Conduct because you're not taking that zealous approach to advocacy and you are trying to co-prioritize interests that are not those of your client, they are those of your client's children.
And so that's all part of what that project's all about. It's about trying to create the regulatory environment within which lawyers are able to prioritize the interests of children, ethically pursue less conflictual, less adversarial means of conflict and overall try to dampen the extent of the conflict between parents so as to promote the best interests of their children.
Yves Faguy: So Kyla from your perspective how should we be resolving disputes? Do we need to take them out of the court system? Should we be moving them to more of an administrative model in some cases? How does technology come into play?
Kyla Sandwith: And specifically in the area of family law I think definitely it needs to come out of the courthouse. Because what you have really is a social problem with a legal component to it. There are emotional problems. There are sometimes psychological problems. There are financial issues that for some reason we have created this – a family breakup as a legal problem and this is where everything gets dealt with. And often times the emotional and psychological problems get dealt with in the courthouse by lawyers who are not trained to deal with this.
So you know I would like to see this moved out of the courthouse as the primary go-to location for resolution of family law issues. That in and of itself I think removes us from the idea that there is a winner or loser and the judge will decide, and potentially makes it a more collaborative endeavour.
The role of technology I think really you know as in all changes to – any changes in the legal system you need to look at the process first. You need to look at the system first. Technology on top of the bad process is just going to automate and speed up bad results. So you really need to take a look at the process and fundamentally particularly in the area of family law that requires us to step away from the adversarial model that we're taught. You know that is you're absolutely right baked into our DNA from that first day of law school that there's always a winner, and a loser, and you're there to advocate on behalf of the winner hopefully.
Yves Faguy: Do either of you get a sense that there is appetite among practitioners? Because they're a big part of the solution as well to overhaul the system and to experiment a little bit with different ways of doing things?
Kyla Sandwith: I think overhauling the system is a bit – is a bit too big of an ask. I don't think that you would ask any practitioner that there's an appetite for an overhaul. I think a lot of practitioners are open to some changes, but an overhaul would be a stretch for sure. I think people really want to see some advancement, but that means support from the Law Society and the rules that govern us and restrict us from taking risks and you know, and trying new things. You know we try new technologies and we could offside client confidentiality rules.
And so you know there are huge risks with trying new things, and there's an appetite there. There just isn't the support yet I don't think.
John-Paul Boyd: Maybe I can offer the silver lining and the ray of hope to a discussion that is at times awfully grim. There are only two jurisdictions that I've practiced in to any meaningful extent– British Columbia and Alberta. And in British Columbia I was involved in creating two organisations. First was the BC Parenting Coordinators Roster Society [clears throat] excuse me. And I believe that we founded that in 2007, 2008. And then a few years later the BC Hear the Child Society.
The BC Parenting Coordinators Roster Society was founded in order to promote parenting coordination as a way of dealing with post-trial and post-settlement high conflict parents who are constantly involved in problems involving well, parenting issues right? And the Hear the Child Society was about promoting hearing the views of children in furtherance of Canada's commitment to the UN Convention on the Rights of the Child as well as the positive effects on children.
And you know those two organisations were created by a couple of lawyers and a couple of mental health professionals. With no writ from the government, no fiat from the courts, and no magic wave of the wand or licence from the Law Society. And in each case it was a small number of lawyers and a small number of mental health professionals who got together for – to promote a project that was intended to improve family justice for children, and for families and improve the outcome for families who volunteered their own time, and their own money to establish steering committees that led to the founding of provincial not for profit organisations. And in British Columbia I am delighted to say that parenting coordination was incorporated into the 2013 Family Law Act which contains specific provisions expressly allowing the court to appoint parenting coordinators over the objection of a party.
As well Hearing the Voice of the Child is now a – is now a rebuttable presumption in both the Provincial Family Law Act in British Columbia and in the revisions to the Divorce Act that will be taking effect on the First of July this year. And both of those changes represent a tremendous amount of progress. But just to think about these extent of the change that was wrought by just those two organisations in British Columbia where now 13 years after the founding of the Roster Society parenting coordination is available throughout the province and has a high degree of credibility among both the Bar and the Bench. and the Hear the Child Society which has done yeoman’s work in terms of establishing protocols and best practices for non-evaluative use the child reports that are available at a fraction of the cost of parenting assessments that are produced by mental health professionals.
And then you know, and then we move to Alberta and you know Alberta has a very entrepreneurial spirit among all of its residents and lawyers are not excluded from that. And so we see groups like the Resolve Legal Group in Calgary which went out of its way to form partnerships with local businesses when they were open to create self-care cards for clients that gave clients a discount at all sorts of places from places that provided you know physical therapy, to massage, to other sort of wellness type programs. Other law firms in Calgary are developing you know child, parenting dispute resolution boot camps where at a reduced rate they get both parents into a room and beat sense into them. And so they're aiming to try to get a resolution done within three hours rather than three years.
And there are similar initiatives being run by pockets of lawyers throughout the rest of the province where you know groups of lawyers are forming affiliations with groups of mental health professionals so that both the legal and the mental health dimensions of family restructuring can be adequately addressed. And so you know while we are seeing government lagging badly behind and the governments I'm speaking of are the Federal Government and the provincial and territorial governments outside of British Columbia.
And so while we're seeing you know governments struggling to create change that is anything approaching meaningful and you know in British Columbia we have the example of multidisciplinary groups of professionals working together to create long-lasting institutions that have fundamentally changed the family law landscape. And in Alberta we have pockets of lawyers who although they are working in an uncoordinated manner, and to some extent are fracturing the retail landscape from the perspective of clients they demonstrate you know an enormous amount of individual, personal commitment to sometimes sacrifice profits in favour of finding less adversarial ways of resolving disputes that are in fact multi-disciplinary and take into account the fundamental wellbeing of parents and their children along with the legal aspect of seeking a resolution of problems that would otherwise be headed to trial.
Yves Faguy: And I certainly don't doubt that there are plenty of lawyers and practitioners out there that are willing to try something different and experiment, but as you alluded to a little bit earlier Kyla you know, it requires law societies to some extent to facilitate and lubricate this phase of experimentation. I mean is it really reasonable to expect that you know the courts, the judges, the law societies can ever become comfortable with experimentation which also entails a certain degree of failure in working to build a more resilient court system? Are they prepared to go through that? And if they're not how do we get them there?
Kyla Sandwith: I certainly see some hope you know with the current law society. I think there's a real push towards allowing, or creating a space for lawyers to try new things and experiment. You know there's been talk about a sandbox idea where you know, where people can collaborate and people can test out new ideas in sort of a safe space and then we can test the impact on the public you know within those projects. And I think there are people that are pushing that. The Law Society you know is definitely moving towards that mindset of you know we do have to experiment; we do have to try new things. Or at least we have to open the door to allow people to do that and reduce the risk to a certain degree.
The courts I think you know are – they've got their own internal structures that make that incredibly difficult. You have different levels of court and you have different budgets and people are in charge of different budgets, and each of their budgets impact everybody else. And so in order to get everybody on the same page, in order to experiment you've got to get all levels of you know budgetary responsibility on the same page and supporting those. Not to say that it can't be done, and I think that there are some judges out there, and court administrators who are starting to push the envelope.
The Court of Appeal is one of them, and they're doing great work in terms of you know automating the process and moving towards more digital filings and things like that. So the work can be done. And I think people are starting to take some of those risks, but as lawyers that's what we're taught. We're taught that from day one you know along with you would say a zealous advocacy we're taught to identify risk, but we're never really taught what to do with that risk. We’re never taught to assess it in any meaningful way and determine if the way forward is worth the risk. It's identify the risk, avoid the risk and that's where the analysis tends to end.
So it's something that does need to shift, and how we view these things and I do see pockets of it.
Yves Faguy: We've seen regulatory changes in the US coming to the fore in the discussions around this. I know Utah has – is pushing for a regulatory sandbox model of again experimentation. Have you followed that? And you know does that give you some hope John-Paul that we're going to – that perhaps the law societies are going to come under additional pressure to follow suit?
John-Paul Boyd: Well let's be clear about the ambid of the law societies and the questionable criticality of their role, right? The role – law societies have a critical role to play whenever the Legal Profession Act in your particular jurisdiction or the Code of Conduct are imperilled, or threatened. And in fact part of the radical structure of the Aspire Legal Initiative that Kyla was involved in, part of the problem that Aspire had was trying to fit into the you know, as a round peg into the square hole created by the Law Society.
So that was a tangible regulatory issue. But where we see law societies like the one in Utah creating that regulatory sandbox I mean what we're talking about there is we're talking about just one part of increasing access to justice which has to do with the not entirely clear question about whether introducing people who are not lawyers providing legal services will in fact increase the ability of average Canadians to access justice right? And the problem with that is that admitting non-lawyers to the practice of law to some degree is not a complete answer to the access to justice problem. It provides legal services at what is theoretically a discounted rate, although the data on that is contested as well. But you're not changing the overall structure of the system
In order to do that right? The really big picture access to justice problem like an administrative approach to family law, that requires action on the part of the Federal and the provincial governments, the allocation of substantial funding, and the development of a cadre of bureaucrats who are genuinely visionaries and able to free themselves from the shackles of tradition to look at genuinely new approaches to family justice. And so on the one hand I am really happy to see what's going on in Utah and the other number of American jurisdictions – and in Ontario where they're looking at licensed paralegals, or – and some other means of bringing a paralegal type concept into the practice of law. That should have some impact on the ability of average Canadians to access the court system.
But the bigger change that I think we need which is aimed at dealing with family restructuring in a more holistic, and more constructive, and less destructive way, that's within the province or the government. And it's not something that the average lawyer is going to be able to do, and it's not something that's within the purview of the law societies.
Kyla Sandwith: So John-Paul to your point earlier is that if we do have these sort of incremental changes – bringing paralegals in to provide service that creates some competition which will hopefully then create more innovation around you know how people are pricing or delivering their services. and to your point of what happened in BC is if we have a groundswell of this, and we have you know a group of people that are making some fundamental changes to the way things are done that then puts pressure on the government to make those changes.
So I don't think necessarily that it has to be one or the other. It could be that this you know, a ground up approach might give us the result that we're looking for which is change from the government.
John-Paul Boyd: Yeah, well I'm not saying anything to the contrary. I support the introduction of paralegals because I do think it will increase the ability of the average Canadian to access justice. And I do think that the introduction of competition to the monopoly that lawyers currently enjoy is going to exert some downward market forces on the prices that lawyers are currently able to charge. But what I'm suggesting is that, that is not in itself a complete answer. I'm suggesting that paralegals do increase access to justice, but they increase access to the current status quo.
What I'm suggesting and would really believe is incredibly important is a much larger rethink of how we deal with family justice problems. And paralegals I would hope would have a role to play in that, but I would like to see the Federal, and provincial, and territorial governments working together to develop an administrative approach to family law that gets these difficult issues out of the court system and the destructive, and costly adversarial approach that it requires.
Yves Faguy: And on that John-Paul and Kyla I mean you know our governments – I think there's some expectation, some concern perhaps that our governments are going to be exhausted after this pandemic and this crisis because they've been in crisis mode for several weeks and they will probably continue to be so for several more. After all this also are they going to be too cash-strapped to provide the funding? And will they have appetite to fund real justice reform? And is this a concern for you, to both of you?
Kyla Sandwith: It is, but I think they can get creative. You know I don't think that there'll be a whole lot of extra money to throw around you know to fund some of this. But the funding that they're already giving to Legal Aid, to the courts there needs to be a conversation about the priorities for that money. So you take Legal Aid as an example and Legal Aid in Alberta obviously funds access to lawyers for our you know most financially challenged population in Alberta. But the problem is, is that they fund them in the same way that they've said lawyers typically get paid. They get paid by the billable hour. Which does not promote efficiency. It doesn't make them do their work any faster and in fact in the same way the billable hour works is it promotes inefficiency.
And unfortunately that's on the backs of our province's most vulnerable because in Alberta – and I don't know about other provinces is the services aren't free. There is a very you know generous payback program, and you can pay $5 a month for the rest of your life but you will pay $5 a month for the rest of your life in order to typically train a junior or first year associate to practice family law.
So this is – from my perspective this is one opportunity that is so clear is that if the government can change the parameters and whether that's a performance-based funding, or whatever they want to come up with but to incentivise efficiency, to incentivise outcome for the clients rather than providing that money based on the billable hour. TO me that is the fundamental shift that they could make which would make a huge difference because then the lawyers who are working for Legal Aid and building their practices are then forced to rethink okay, how am I doing this? How am I delivering legal services? Which then carried on into their practice. And so they're focusing more on efficiency and outcomes rather than churning out the billable hours.
John-Paul Boyd: Well yeah I don't know that I have a particularly clear prognostication about where this is going to wind up. On the one hand you know I, you know necessity is the mother of invention and maybe the cash strapped future that I think lies ahead of us will you know provide an ongoing impetus that stimulates creative thought, and a creative approach to finding solutions. On the other hand maybe what we're going to see is the continuing impoverishment of the traditional justice system.
I wish I saw a you know, extended reason for hope but regrettably I don't. From my perspective anyway I think we're going to have to see how it all plays out.
And Kyla you were referring to Alberta Legal Aid's fantastic Pay it Back program and in fact that really is a wonderful Alberta creature that doesn't exist in all other provinces. In other provinces where you get your Legal Aid funding you get the funding and there's no expectation that you're going to have to pay it back. Not in Alberta though. Well done.
Yves Faguy: You're hard to track john-Paul, you have your sunny ways and then you have your more pessimistic – pessimist edge. I want to close out asking a last question to both of you. You know I've heard – I've heard our former Chief Justice Beverley McLachlin say year after year that fixing the justice system and access to justice is a multi-faceted problem, a multi-facetted challenge you know and I think she's genuine when she says that, but some more skeptical kinds of people might say that it's also a convenient excuse to do not much.
So I want to put you on the spot here. IF you could change one thing what would it be? Kyla, let's start with you.
Kyla Sandwith: Now that's not fair. There's so much I would change.
John-Paul Boyd: That's completely fair. Go for it Kyla.
Kyla Sandwith: [Laughs] Oh, goodness let me think. You know what? I think not the easier route, but the route that is going to change things long-term is in how we train our students coming through. We train them the same way we've always trained them, in the same culture of you know black and white thinking, risk aversion, adversarial approach that we have for generations. That's the law schools and then they get into their firms and they learn the same thing they've always learned. And that perpetuates the problem exponentially.
So if we are ever going to have a hope for change I don't think that we can legitimately rely on people who grew up in this system, and are comfortable in the existing system to then ask them to then dismantle it all you know and build it back up again. I think that's going to come from training people to think differently, to look at problems differently, to approach people differently. That would be my – that would be my you know the first change is how we train lawyers coming through
Yves Faguy: That's a pretty good answer, John-Paul yours?
John-Paul Boyd: Well unfortunately I subscribe to the dismantle it all school of through. And my personal preference at least for family justice would be to get the Federal Government out of divorce, and family law and strip it all back to the ground, rebuild it from the ground up with legislation that is comprehensible to the average Canadian and doesn't require a law school degree to get your way through. Legislation that doesn't require the application of case authority which the legislation never refers to by the way in order to understand and get family – and get family law problems out of courts altogether. So I – my preference is to raze it all to the ground and start over again.
Yves Faguy: John-Paul Boyd, Kyla Sandwith thank you very much for joining us on this podcast today. I appreciate you both sharing your views, taking the time to speak with us. So I've been talking with John-Paul Boyd of John-Paul Boyd Arbitration and Kyla Sandwith of De Novo Inc. Thank you very much and join us for our next episode.
Kyla Sandwith: Thank you.
John-Paul Boyd: Thanks Yves.
Yves Faguy: Well that wraps up our conversation for today. We want to hear your views about what changes need to happen in our justice system and in the legal profession. Where do you think the key players need to focus their energies? And how do you suggest we encourage more experimentation in the legal sector? Let us know on Twitter @CBANatMag and on Facebook. You can hear this podcast and others on our CBA channel the Every Lawyer on Spotify, Apple Podcast, Google Play, and Stitcher. Wherever you listen to the podcasts subscribe to receive notifications for new episodes. And to hear us in French listen to our Juriste branché podcast.