When I retired from an almost thirty year career as a legal
aid lawyer, I truly wondered if it had been a wasted three decades. The wins in
the courts were vastly outpaced by the losses. And not because the legal
arguments were necessarily unsound. The expression “one step forward and two
back” was a constant reality. A win in court often meant that the government
amended the law to gain the result it had hoped for. Usually that result was
less rights for the disadvantaged and fewer benefits. The law or legal principles
were applied differently to the banks and large corporations or the wealthy
than they were to the poor, the marginalized and the ordinary citizen. It was
indeed a discouraging three decades with only a few glimmers of social justice
being achieved.
Perhaps I should have realized this as a young law clerk at
the Supreme Court of Ontario. One day, I was assisting at a fledgling Constitutional
legal challenge by a same-sex couple seeking the same benefits as heterosexual
couples. I could tell that the judge I was working for was uncomfortable with
the arguments advanced by the applicants, which were sound in every way. During
a recess, the presiding judge, whom I was working for at the time, stood smirking
with another judge, (need I state that they were both older, white males). I
overheard them joking about the case in a snickering school boy sort of way. My
judge stated that he could not find in their favour, “after all, what would my
neighbours say”. I immediately recognized that legal principles would not win
out. There were a few other instances over the decades similar to this.
Most of my career was spent doing legal research and writing
legal opinions for court and tribunal proceedings by legal aid lawyers and
paralegals. I also wrote a number of legal journal articles over the years
advancing certain legal arguments. Sometimes I would discover that these
opinions were being ridiculed publicly. There are three incidents that come
foremost to mind. I have now been retired for almost five years.
One article I wrote in the early 1990s advanced a legal
position in favour of recipients of unemployment insurance benefits. The lower
court and tribunal decision had accepted what I viewed as an untenable position
based on the law. Years later I would be informed by a colleague that she had
just read an article calling my article a “rant”. I did not mind, although I
thought it somewhat unprofessional of the author to have put it in those terms.
The reason I did not mind was the Federal Court of Appeal had since accepted
the legal position I had been advancing in that “rant”.
Almost a decade later I had written opposing the transfer of
a legal system for tenants from the courts to a tribunal. I saw this as a
purely political move disguised as a review of an earlier legal decision by our
highest court. Well that was a battle I could not win. Changes are often made
in the name of service efficiency. Unfortunately, that efficiency frequently means
less access to justice for the poor.
Regardless, although the shape of the legislation itself did
not change dramatically, the tribunal’s re-interpretation of its broad remedial
powers under it did. I wrote papers and journal articles about how this
restrictive interpretation was unwarranted. A few years later, I discovered
that a lawyer who worked for this tribunal had ridiculed me for my position in
a published master of law thesis. A few years later, Ontario’s highest court
accepted the position I had been advancing and been ridiculed for.
And recently, I discovered that years after I had unsuccessfully
and repeatedly advanced a legal argument , it was accepted by Canada’s highest
court. This argument was in favour of the same standard of review being applied
to questions of law by administrative and quasi-judicial
tribunals as is applied routinely in the courts. Once again I, or those advancing
similar arguments, had been repeatedly “shot down” and warned to cease and
desist from raising the issue. Our argument should have been a “no-brainer”,
but it was not convenient or “efficient”. We had argued that a question of law
must be decided correctly. Reasonable decisions that are wrong are not sufficient.
For indeed, how can a wrong decision on a question of law be reasonable. It
would allow for multi-tiered justice.
These few “wins” do somewhat alleviate the sense of being a
voice crying out in the wilderness. They do somewhat abate the wounds from
insults incurred. But they are really bitter sweet pills in retrospect.
