And Equal Justice for All

The line in the title sounds fair. Who could argue with a principle that everyone should have equal access to justice?

But is this really the case in practice?

Ask a person of colour or an indigenous person if they receive justice equal to what white people realize. They probably will say they’re at a disadvantage.

How about people who emigrated to Canada but whose native language isn’t English? Do they receive equal opportunities for justice when needed? Probably not.

One thing that is common to the people I just described is that a disproportionate number are far from being wealthy, and I believe this also plays a role in how they are served “justice” in our system.

So, how does this relate to living in Long Branch?

For builders and developers, the stakes are high in buying up and redeveloping properties. And sometimes residents oppose their plans. When that happens, litigation can occur – either at a tribunal such as the OMB or TLAB and sometimes at Divisional Court.

In litigation of property disputes, the cards are usually stacked against the residents.

Businesses vs. Citizens

First, the builders are almost always acting as businesses or corporations, and usually have multiple projects on the go. They may not be huge businesses, but they have access to resources far greater than residents.

It is not uncommon to see builders paying up to $100,000 to appeal at COA decision at TLAB. This represents fees for lawyers and expert witnesses in land-use planning and arborists.

Secondly, as businesses, the costs of pursuing litigation are considered a cost of doing business, so are tax deductible. Residents are expected to bear the full cost of litigation from their own savings.

Under Canadian tax regulations, personal legal fees are deductible for most Canadian taxpayers only where they are incurred to recover amounts which they believe are owed to them, and where those amounts involve employment or employment-related income or, in some cases, family support obligations.

Imagine having to pay out $100,000 to defend against a builder. In Toronto, the average household income is $65,829, so that bill for litigation represents 1-1/2 years of pre-tax income. In terms of after-tax income, that bill could represent 2 to 3 years of income.  It’s hardly surprising that most residents just don’t have that amount of cash on hand to mount a legal defense.

Third, as businesses, builders can be expected to have significant cash flow from other projects. That cash flow probably exceeds the salary for most residents and, if the resident is on a fixed income, legal fees represent a significant obstacle to being properly represented at tribunals or in the courts.

Sometimes, unscrupulous lawyers have used this disparity to intimidate ordinary people. They threaten someone who opposes a client with a lawsuit in hopes this will cause the person to withdraw their objections. There is an official term for these – Strategic Lawsuits Against Public Participation, or SLAPP.

We have seen these being used on residents of Long Branch.

For a resident, the threat of a lawsuit usually creates an enormous amount of stress because, often, a lawsuit is a once-in-a-lifetime event. The uncertainty about the outcome. The uncertainty about how much they will incur in legal fees. The possibility of a significant loss out of their savings if they lose. Awards to residents from pursuing litigation against a corporation do little, if any, to compensate the residents for the emotional stress such litigation imposes on them.

The Legal Framework

According to Section 15.(1) of the Charter of Rights and Freedoms, “Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin,
colour, religion, sex, age or mental or physical disability.”

My interpretation is that the focus of the equality rights has more to do with preventing discrimination against minority groups, with a slant towards the criminal justice system.

In its November 2013 report entitled, Equal Justice: Balancing the Scales, the Canadian Bar Association wrote, “We understand essential legal needs to be those arising from legal problems or situations that put into jeopardy the security of a person or that person’s family’s security – including liberty, personal security, health, employment, housing or ability to meet the basic necessities of life…”

Admittedly, the Bar Association’s report was really focused on providing legal aid, but it is noteworthy they mention the security of one’s housing as an essential legal need.

How Do We Get a More Level Playing Field?

First, the government must allow residents who are involved in property disputes to deduct their legal fees from their income taxes – the same as for the builders.

Perhaps this can or should be limited to cases in which a resident is being sued by a corporation or other large business or when a resident is suing a corporation.

In cases where a resident is suing another resident, there would be no need to offer tax protection for legal fees because the residents involved would be on equal footing.

For businesses, legal fees represent a much smaller proportion of their income than for a resident, for whom legal fees alone can represent nearly as much as a year’s earnings. And, in some cases, residents are being forced to go to court just to protect their own rights. This is not what we would call fair.

Second, awards from litigation between businesses and residents should be doubled for the residents, and the business should be responsible for the full amount of legal fees paid by the resident. This would impose a sufficiently significant penalty on the businesses that might act as a deterrent against SLAPP or other arbitrary lawsuits.

Because income Taxes are ultimately administered at the federal level, probably the best way to encourage regulatory change is to write to our MP, James Maloney to make your views known. Or call his constituency office at (416) 251-5510,

If we, as residents, continue to sit silent on this issue, the disparity in legal fees will only widen. If we want to see things change to be fairer, we need to make our voices heard.