Friends Who Argue

COVID-19 & Access to Justice with Erin Durant

January 27, 2021 Erin Durant Season 1 Episode 1
Friends Who Argue
COVID-19 & Access to Justice with Erin Durant
Show Notes Transcript

Welcome to Friends Who Argue! In our first episode, Laura Gurr of Cohen Highly LLP in London sits down with  Erin Durant of Borden Ladner Gervais LLP in Ottawa about the early days of her career, her mentors and what impact she sees COVID-19 has had on access to justice. 

Speaker 1:

Welcome to friends who argue a podcast from The Advocates' Society.

Speaker 2:

Each episode, we'll bring you conversations with advocates across all areas of litigation who share their stories, insights, tips, and tricks from their journeys as advocates.

Speaker 1:

We hope you'll find this podcast informative, inspiring, and most of all entertaining. And that you'll subscribe to our podcast on iTunes to stay up to date on the latest episodes.

Speaker 2:

On this episode of friends who argue, we welcome Laura Gurr and Erin Durant. Laura Gurr, a partner at Cohen, Highly will interview Erin Durant, a partner at BLG who is last year's recipient of the TAS writing award. Thank you, Erin and Laura for joining us.

Speaker 3:

Thank you all for joining us today as I talk to Erin Durant of Borden Ladner Gervais in Ottawa about the early days of her career, her mentors, and what impact she sees COVID-19 has had on access to justice. First I'd like to congratulate Erin. Erin was the recipient of the 2020 writers award presented by YASC. This award recognizes a young advocate who has made outstanding contribution to The Advocates' Society publications. Erin was involved early on in the development of our Keeping Tabs newsletter, including a few years as editor.

Speaker 4:

Thank you so much for having me Laura and , um , and thanks for , uh , recognizing the writer's award. Um, I really would not have had that award if I hadn't been involved with TAS , um, early on in my career. Um, it's a really great organization , um, for young lawyers to get involved with. Um, as you mentioned, the Keeping Tabs, a newsletter is something I was involved with in the early days and the newsletters that TAS , uh , Keeping Tabs and , um, Advocacy Matters and all of them that The Advocate's Society does are really great opportunities for young lawyers to write about really anything that they want. Um, you know, some of my early writings were things about, you know, why you should participate on your law firm , uh, softball team and , and other silly things, but it's a great outlet, you know , to be creative and also to get your name out there. And I have, you know, TAS to thank for a lot of the stuff that I've been able to do , um, in my career. So it's been great to be involved and, and thank you for having me on the podcast.

Speaker 3:

That's wonderful. So for those of you who don't know her Erin Durant joined BLG in 2015, after working at a small firm in Barrie, she has been a part-time professor at the University of Ottawa where she's taught both insurance law and civil procedure. She's a litigator that handles insurance, commercial litigation and investigation matters. Erin is very active in the legal profession and in the Ottawa community. She was a long time member of The Advocates' Society Young Lawyers Standing Committee, and was a member of The Advocates' Society's Task Force on Trials that published the best practices for civil trials and The Advocates' Society's Court Technology Task Force that contributed to the paperless trials manual. She currently sits on the Access to Justice Task Force. Welcome Erin, it's clear from your biography that you've had considerable trial experience. I believe you've been involved as counsel or trial support and at least one trial per year since you're called to the bar. That's pretty impressive.

Speaker 4:

Yeah, I've been pretty lucky with regards to getting trial experience. And one of the reasons I was able to get involved in trial experience relatively early on is I started my career in Barrie. And in that jurisdiction, they do civil trial settings , uh , twice per year, every year, or at least they did when I was there. So as a busy insurance defense firm, we all had to learn how to prepare for trial. Um , it was sort of all hands on deck those , uh , two times a year. So , um, often one of our trials would go ahead. Sometimes they wouldn't and we would just have the opportunity to prepare. Um, so that , that's how I got my early trial experience. And when I joined BLG , um, I was joining at a busy time and they had a couple of trials , uh , scheduled and they needed to staff them with the younger lawyers. And I was lucky to jump on, on those as well. So , uh, trials have been one of my favorite parts of being a litigator. And , uh, I'm hoping that , um, pretty soon we'll be able to get back to doing the whole trials , um, after the COVID pandemic either passes or , or we start having them heard , um , more frequently in Ottawa.

Speaker 3:

So before we get into the impact of COVID-19 , um, I just wondered if you could tell me a bit about why you believe that we as litigation lawyers should care about whether there's adequate access to justice.

Speaker 4:

Yeah. So this is something that is relatively important to me, and I think it's important to me personally, for a couple of reasons. The first is I don't come from a legal background. Um , I come from a much more middle-class background. Um, you know, my family would be the type of family that would struggle in terms of having to afford their own legal services , um, you know, as a member of the middle class and the price of legal services. So, you know, I think just personally based on my background, you know, access to justice and access to lawyers is something that is important. Um, and sort of the second source of my, of my personal motivation and in this area is , um, I worked very closely with David W. Scott who passed away relatively recently. And this was one of his , uh, his real passion and his pet projects was making sure litigants had access to legal services and access to justice. And, you know, he had worked pro bono throughout his career on, on a number of things. You know, he was a regular volunteer at deeper one Ontario law help centers. He would often , uh, take in random pro bono mandates that were of interest to him. Um, or even if he just met somebody randomly who needed help, you know, he would often take them in, you know , uh, whether formally or informally through the firm. Um, so I think that passion really passed on onto me, you know, the need for lawyers to, to serve the public , um, where the only lawyers and paralegals are the only people allowed to give legal services in Ontario. So that's a privilege that we all have, and we have an obligation to the public to make sure, you know , everyone does have access to, to lawyers and access to justice as part of our mandate as being the only one and able to give those services. So I really believe in that. And I've really worked towards that I think sort of with some of my , um, my volunteer work and some of the messaging I do on , on social media, I think it's very important.

Speaker 3:

So which hurdles to obtaining access to justice, do you personally experience, or do you observe in your practice?

Speaker 4:

I think there's a number of , of challenges. Um, you know, the first being, it's very hard for people who can't afford to hire a lawyer, especially if it's a civil case to know, to know where to go. Um, they eliminated legal aid for civil cases, you know, many, many years ago now , um, the Ministry of the Attorney General , uh, tends to post , um, self-help type guides , um , and resources along those lines on the internet. And there's also other not-for-profit organizations who do the same. Um, but if someone's looking for, you know, civil pro bono representation, you know, a lot of people struggle in terms of knowing, knowing where to go , um, to access that. And, you know, we often get calls, just cold calls from, from, you know, the public to the firm, you know, do you have a lawyer that can help us do this? And, and I think individual firms, you know, are willing to take those cases, but it's really a matter of, from the perspective of the person calling around, it's kind of luck of the draw or like a lottery if you're actually able to call randomly and find someone willing to help you. Um, that's one of the reasons why I'm quite passionate about the pro bono Ontario Law Help Center is , um, and their online resources as well is it is a dedicated resource where if you call them, you know, they will connect you to a lawyer for civil help somewhere. Um, and they may be able to help you just through the whatever stuff you're working on, or, you know, in some instances you can get connected with a lawyer to actually represent you in the case. So I think one hurdle is , is making that resource known to more people and also to make sure that resources that resource in particular is , is funded enough to, you know, to have a higher volume and that people become aware of them and that they can keep doing, you know , their mandate of, of connecting people with lawyers willing to help. Um, another challenge and , and Mr. Scott and I used to talk about this a lot, is there, are, there is a segment of the population that doesn't trust the lawyers that doesn't want to work with lawyers that would prefer , um, to represent themselves. And , um, and these individuals , um, you know, come before the court for, for health and to manage their , their legal problem. And, you know, we, there's no way to force someone to get a lawyer. Um, so I know that judges as well, you know, have some difficulty in terms of walking people through that process and, you know, making sure that they are, you know, especially if they have a legitimate, legal concern or a legitimate defense, that they are, you know, being able to represent themselves properly and that they have the resources that they need. So, you know, I think those are some of the big challenges, I guess the third one, which is obviously related and I probably should have started with this is just the overall cost of , um , obtaining justice and hiring a lawyer and working your way through a court process , um, is , is tough. Um, it's high, the process is cumbersome. And, you know, I think that even the middle-class or the high middle class would have a hard time affording lawyers to represent them for most of their legal legal problems. So that's just on the civil side, you know, there there's so many other challenges that exist , um, for criminal and family lawyers as well. Um, you know, from the cuts that have been made to legal aid , um, for example is a relatively big one. Um, and criminal lawyers in particular, you know, work their way through these files, donating really a lot of their time. Um, and you know, I have a concern about the legal aid system as a whole and whether or not it's going to continue to be able to keep up and to help the people that , that really need it. Um, and again, in criminal and family, there's, there's the problem in terms of the middle class , not being able to afford , um, access to a lawyer, but also not qualifying for legal aid and , and then really getting into a squeeze when they have a legal problem. So those are just sort of some of the hurdles in terms of accessing justice. And there's certainly , um , a lot written on the matter and people a lot more knowledgeable than I am in terms of , of the problems and , um, and where we're kind of going , um, to address them,

Speaker 3:

Speaking of where we're going to address them. You know, I think it , it was important and it , it is important to highlight that that work, that Pro Bono Ontario Law Help Center is doing. But are there any other possible solutions that you see?

Speaker 4:

Yeah. You know, there's , there's been a lot of effort made to , um, to bring this issue of access to justice, to the attention of , um, of all levels of government and also , um, to try for, try to have to have the law school, not the law school, the law society , um, take on a bit more of an active role in the area. Um, I'm concerned about that access to justice may continue to be reduced as the province in particular is dealing with the expenses associated with the Coronavirus and then having to spend money in many other places. So I hope that, you know, related funding, you know , is at least maintained. Um, but I think increased investment in the justice system in general is needed. Um, and the law society's mandate is , is an interesting line. And, and I've done quite a bit of research into this , um, as part of the pro bono Ontario crisis that occurred a couple of years back. And it's interesting because the mandate of the law society as set out in their statute , um, indicates that it's their job to quote unquote promote , um , access to justice. And they do do a lot in terms of promotion of access to justice, hosting their access to justice week , um, you know, making resources available to the public. Um, but they've , they've held a relatively restrictive role in terms of , um, their obligation to actually fund initiatives and to invest sort of the law society's money into, you know, making sure there's access to justice available to people. And, you know, there , there's sort of a tension between the law society, government and lawyers in terms of whose obligation this is. And especially, you know , whose obligation is it to, you know, to pick up the tab for it. And I think rightly that they're reluctant to take too active of a role , um, in, in funding when, when really , um, it's an obligation of the province , um, you know, to make sure that the justice system is operating and that people are able to access it. So, you know , that's a little bit of that , uh , fight that goes on , um , in the background. But I think, you know, lawyers for the most part have been, have been doing their part, you know, the private bar is getting, it seems to me more and more involved in informal pro bono programs. Um, you know, I think that even in-house legal departments, you see them volunteering en masse to help , um, with, you know, whether it be the Pro Bono, Ontario , uh , Law Help Center, or other access to justice organizations. And, you know, certainly, you know, the small firms that do criminal and family work do do more than their fair share of, of free work. So I think it's really something that we all need to work on together. You know, the private bar, the in-firm lawyers, the law society of the province, you know, we all have our own little piece where we can, where we can help. And I think it's an area that needs help and that we should all continue to focus on and not let it slip through the tracks , the , the cracks , um , due to the coronavirus and , and all of the other pressures that we're going through right now.

Speaker 3:

So we've, we've talked about it a couple of times , um, or made reference to COVID and we know that the coronavirus pandemic has had a dramatic impact on the practice of law and litigation. I'm just wondering if you could talk about some of the pros and cons of COVID as it pertains to access to justice specifically,

Speaker 4:

I'll start with the cons. You know, obviously despite our best efforts , um, things have fallen behind, you know, there was initial, initially a court shut down, many things were canceled. Uh, trials need to be rescheduled. Other events need to be rescheduled. Um, even the delays in limitation periods and the , the civil context, you know, in the delays, in , in statutory deadlines, you know , also result in a delay in terms of matters reaching, you know , their conclusion, but, you know, so, so obviously it's caused more delay and there was already quite a bit of delay and backlog in the system , um, especially on the civil side where there tends to be less court resources, but, you know, and so those would be the , the main, the main, you know, cons , um, but there have been a number of pros. And, you know, I think that the government of Ontario in particular, in the Attorney General's Office has done a really good job in this area in terms of modernization. And, you know, I think the Attorney General would be the first to say, like a lot of it came really late in the day. You know, for example, recently there was the announcement that we won't have to be, you know , using fax machines anymore. And I think I saw the Attorney General tweet that, that might've been 20 years too late, but , um, you know, a lot of these little changes I think are going to make big differences down the road. So, you know, across the province, you're having motions heard by Zoom, you're having case conferences dealt with by telephone. Um, we're having even outside of the courts , lawyers are dealing with their discoveries, their mediations, their cross-examinations using using Zoom. Um, and all of these little things are going to cut down on the expense of litigation. You know , you're going to be, you know, waiting in court less, you know, to have a relatively minor thing dealt with. Um , you're going to be traveling less, which cuts down on, on cost and convenience for both lawyers and their clients. Um, I think it will be really hard, if not impossible for, you know, the court system to backtrack from some of these advancements. And , you know, when I speak to, to lawyers and judges and everyone involved, especially my clients, you know, they never want to go back to the before times in terms of sending me to Sudbury or Thunder Bay to examine somebody for two hours, right. Like I think a lot of these advancements are , are going to be great and they're going to be cost savings. And, and I really don't think they're going to disappear. I think that it's going to continue into the future. Um, even, you know, filing things online, cuts down on, on time and expense and the requirement to , to print things and paper. So all of those things are, are a bonus. Um, you know, I wish it didn't take a worldwide pandemic to get us there, but it really did push everybody forward a number of years. And , um, and I think that's going to be a lasting bonus of the pandemic for sure.

Speaker 3:

Yeah. I think you're right about that. I don't, I don't see us going backwards.

Speaker 4:

And even, even within, within law firms too , I think, you know, for any firm that was a bit reluctant to embrace remote work , uh , for those that were asking for it, I think, I think we've shown as a profession that we can continue to be productive while working at home. So, you know , I think it's not really an access to justice improvement, but I think it may be something that, you know, improve people's quality of life if working remotely is something that they want to continue doing. I think that firms and other workplaces are going to be more open to accepting that going forward as well.

Speaker 3:

Yeah. That's an important point. We've talked about how it's harder to get a, a trial date , um, now, and, and there still is this backlog of cases. Um, so where litigants can attend remotely and while court houses are opening back up, I'm just wondering if you think this second wave , um , that we're currently experiencing is going to have an additional impact on, on some of those , um, delay issues that we know we're experiencing right now.

Speaker 4:

I think we're , we're certainly better prepared for the second wave. You know, the courts are already up and running in terms of having the remote motions and in-writing motions and remote court appearances happening. So I think in that way , um, you know, we're not going to have as much delay. Um , I think where it really becomes a problem is trials and in particular jury trials and, and jury trials are something that around the world, you know, jurisdictions are trying to deal with in the context of a pandemic. And, you know, for those who haven't done a jury trial, you know, it's not just the actual mechanics of running the trial itself with the six jurors in a civil case or the 12 jurors in a criminal case. It's the process of even selecting that jury, you know , and jury selection. Um, if you've never done one, you know, requires a couple hundred people to get together in the same place and, you know, a selection process that, of the jury pool. So, you know, those, those areas are particularly challenging when we can't, you know, bring people together. And I know some jurisdictions have , um, started booking conference centers in particular, Toronto, where, you know , where they'll bring, you know, the entire jury pool together and people be selected, but you know, when there is a spike in cases and a region moves into different, you know, one of the different color zones that we now have in Ontario, you know, it results in the jury trials as well, getting canceled or delayed. And, you know, that's , that's a big problem. It's one that the province and, you know, the judiciary and lawyers are still dealing with in terms of how do you allow those proceedings to continue. And in criminal cases it's particularly important because the right to a jury trial is a, is a constitutional right. Um, so that's going to be an issue, I think during the second wave , um, in the civil context , um, you know, there's very little in the way of civil jury trials happening. There's been a couple occur in Toronto , um, in many jurisdictions, including in Ottawa, we haven't yet got civil juries back up and running. And , um, so the second wave is going to continue to, you know , potentially delay those matters , um, for, you know , the foreseeable future. Um, and, you know, in the civil litigation context, there's also some challenges associated with , um, people requiring, you know, expert reports and getting examinations done by doctors and, you know , the doctors not being able to see people as a result of, you know, restrictions at their hospital, for example. So, so, that's certainly gonna have , um , some impacts in terms of delaying things further. I think as a result of the extent of the second wave, but overall, you know, we're in a much better place than we were back in March. And, you know, I'm quite confident that there's been such collaboration between the judges and the Attorney General's Office and the lawyers organizations in terms of coming up with solutions to the problems that I think we will continue to improve and push through. And, you know, we'll , we'll all get through it together eventually.

Speaker 3:

Well, thank you so much, Erin, for coming on our podcast, Friends Who Argue , um , and thank you for your time and your insight . We hope that everyone enjoyed listening to our discussion and will subscribe and listen to the podcast. Our next episode is about genetic testing and the Supreme Court of Canada's decision in Reference re Genetic Non-Discrimination Act. So I hope that everyone tunes in for that one as well. Thank you again, Erin .

Speaker 4:

Thank you for having me.

Speaker 2:

Thank you again to Laura and Erin for joining us on this episode of Friends Who Argue. A special thank you to Laura, who was also one of our production leads. Thank you to Chris Horkins and Web Haile, who with me are the editors of this podcast. Thank you to our production leads. Ian Breneman, Natalia Rodriguez, John halts , and Matthew for their contributions. And thank you to The Advocates' Society for providing us with this platform. Lastly, thank you to Danielle Baglivo of D entons for helping us edit.

Speaker 1:

That's it for our show. We hope you enjoyed listening to this episode and that you'll tune in next time.

Speaker 2:

If you enjoyed this episode and want to stay up to date, please subscribe to our podcast on iTunes.

Speaker 1:

Friends Who Argue is brought to you by The Advocates' Society an association of advocates with over 6,000 members from all areas of practice across Canada. For more information about The Advocates' Society, go to www.advocates.ca or follow us on Twitter at , @advocates_soc

Speaker 2:

Until next time, we are, Friends Who Argue.