Legal insurance, capped fees: Options if you can't afford a lawyer

Canada's justice system hinges on the belief that we are all entitled to a fair hearing — but with five-day civil trials costing, on average, $56,439 last year, it's clear that the working poor and the middle class are at a disadvantage.

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These people fall into an income gap between public coverage and those wealthier litigants who can afford to pay.

Still, there are some groups trying to make counsel more accessible, with options ranging from lawyers willing to base their rates on a client's income to insurance to cover legal expenses.

Fees based on your income

In Ontario, those who make too much to qualify for a publicly-funded lawyer — for a single person that's annual income of between $12,135 and $14,045 for a Legal Aid certificate — may still qualify for JusticeNet, a non-profit organization that connects clients with legal professionals willing to waive part of their fees for those making less than $59,000 a year.  

JusticeNet lawyers charge between $100 to $150 an hour, a figure that depends on the client's income and how many people they support. To put that in perspective, that's less than half the average $365-an-hour cost of a lawyer last year, according to a national study conducted by Canadian Lawyer Magazine.

JusticeNet's co-founder Heidi Mottahedin said she purposely made the eligibility cutoff ($59,000) about the same as Ontario's median net family income.

"The justice gaps affects not only low-income earners, but also middle-income earners," she says.

A professional mediator, Mottahedin officially launched the program in 2009 after seeing people represent themselves because they couldn't afford to do otherwise.

"And I saw many lawyers who were really socially-conscious … offering services at reduced fees, so I thought why not connect these people."

More than 10,000 clients have since found legal representation through JusticeNet, which expanded to include paralegals and mediators, who charge about $40 to $80 per hour and $60 to $100 per hour, respectively.

JusticeNet gets most of its funding from legal professional who pay "a nominal fee" to be included in its online directory. For those without access to the internet, the organization runs a volunteer call centre.

There's nothing quite like JusticeNet outside of Ontario, according to legal experts. But Mottahedin said the non-profit organization has neither the manpower nor the funding to operate in other provinces.

Legal expense insurance 

Although a popular option in Europe, where about 20 countries use it, legal expense insurance has yet to catch on here outside of Quebec, according to Sarah Lugtig with the Canadian Bar Association.

The concept is simple. Much like home, tenant or vehicle insurance, someone pays a premium to ensure they're covered in case they have to go to court.

The Quebec Bar Society began heavily promoting legal insurance a decade ago. As of 2011, more than 250,000 families were covered, the organization said.

The Canadian Bar Association hopes to piggyback on this. One of its 31 recommendations from its Reaching Equal Justice report calls for 75 per cent of middle-income Canadians to be enrolled in legal expense insurance within 15 years.

It also wants to work with the insurance industry to include coverage for family court, the area in which the largest number of people — 57 per cent in Ontario — go to court without a lawyer.

The association plans to promote the insurance through its media channels and Lugtig said the CBA will explore the possibility of trying to get government to make a certain level of insurance mandatory, like it is for drivers.

Some play the courts like other people play the markets.- McGill University law professor Richard Janda

However, Richard Janda, a McGill University law professor, says that insurance — if publicly-funded — can promote risky behaviour as it can take away the sense of responsibility.

"This may be taking it to an extreme ... but some play the courts like other people play the markets," Janda says. "If we took away the financial disincentive for doing so … we might end up with a flooding of the courts with frivolous matters."

Advice through legal aid

Although there's a threshold to qualify for legal aid, it also runs programs that anyone can access, part of a move to ensure taxpayers feel like "they have some skin in the game," David McKillop, Legal Aid Ontario's vice president of policy and research says.

"You want people to feel invested," he said, noting that there are advice clinics in Ontario courthouses where anyone can sign up for a 20-minute session.

Criminal, family and refugee lawyers also offer free legal advice over the phone through Legal Aid, a service that McKillop says is not distributed according to income.

And the public service can help those who don't qualify for coverage to connect with programs like JusticeNet or to those lawyers who offer a certain amount of free, pro bono, service.

"That's taking a load off the justice system so that people that might otherwise go unrepresented … may now get representation," McKillop said.