David and Goliath: Unrepresented Applicants versus Represented Respondents
Monetary Awards are Relatively Small
The vast majority of applications before the Tribunal do not result in significant monetary settlements or awards. There are exceptions of course (for example, see Fair v. Hamilton-Wentworth District School Board where the Tribunal ordered in excess of $425,000.00 in damages). Significant monetary awards are the exception rather than the norm however.
The Majority of Applicants are Self-Represented
Because awards are relatively small and many applicants are often unemployed at the time they contemplate bringing an application, many applicants simply cannot afford to hire lawyers who charge significant hourly rates. Perhaps this is the reason why many applicants are unrepresented. Last years for example, approximately 76% of Applicants were unrepresented at the time they filed their Application. This contrasts starkly with respondents, the majority of who have legal representation right from the start.
Access to Justice?
This presents a significant barrier to access to justice. Applicants who believe they have experienced discrimination are often left to fend for themselves in a process that is not always easy to navigate (although the adjudicators at the Tribunal are sensitive to this fact and often take steps necessary to help self-represented applicants understand the process). The impact is intensified when these unrepresented applicants are then pitted against experienced Respondent-side legal counsel. Talk about David and Goliath. Unfortunately, in the human rights context, David is too often unsuccessful.
At the very least, applicants should consult with an applicant-side human rights lawyer to discuss their case prior to drafting the Application. It is important that applicants understand the process, what the various grounds include, and what they must prove in order to be successful. This should be understood from the outset to avoid making costly mistakes right from the start. Ideally, applicants should be afforded quality legal representation to represent them through the process and ultimately at a hearing if it comes to that (keeping in mind that the majority of matters settle without the need for a full hearing).
Alternative Fee Arrangements – Applicants CAN Afford a Human Rights Lawyer
Many applicants however are under the assumption that lawyers cost several hundred dollars per hour. While this is true for some lawyers it is not always the case. Most human rights lawyers could not sustain an applicant-side practice charging hefty hourly rates. When seeking legal representation, applicants should be aware of alternative fee structures. Most lawyers who are passionate about social justice will be open to different arrangements. Some of these may include:
1. Contingency Fee Arrangement — The fee paid to the lawyer is contingent upon the amount obtained for the Applicant. For example, if the Applicant does not obtain any amount (i.e. is unsuccessful at a hearing) then the lawyer does not recoup any legal fee. The lawyer essentially shares the risk with the Applicant. Most lawyers will not agree to a straight contingency fee arrangement in the human rights context, but rather are more likely to agree to some combination of hourly rate and contingency fee arrangement.
2. Hybrid Hourly Rate/Contingency Fee Arrangement — There are a number of different combinations that can be agreed to. For example, the lawyer could represent the Applicant on a contingency fee arrangement for all work done short of the hearing (keeping in mind that most matters resolve themselves without the need for a hearing) and then an hourly rate for representation in the hearing if the matter does proceed. Alternatively, a lawyer could charge 50% of their regular hourly rate and take 20% of the amount achieved. In this scenario, the lawyer is assuming some of the risk with the Applicant by offering a reduced hourly rate in exchange for a percentage of any amount obtained.
3. Hourly Rate Arrangement — Of course there is the straight hourly rate where the Applicant is charged a set rate for every hour the lawyer expends on the Applicant’s behalf.
4. Flat Fee Arrangement — Under this arrangement the Applicant and lawyer agree to a flat fee in advance for all work done on the Application. There are also hybrid flat fee arrangements – for example, some lawyers will agree to a flat fee for all work done short of the hearing and then an hourly rate for representation during the hearing (again keeping in mind that the majority of matters resolve themselves prior to a hearing).
It is worthwhile for applicants to think about fee structures prior to their consultation. What fee structures a lawyer may agree to will be dependent on the size of the lawyer’s practice, the number of clients they have, their particular law firm, etc. It is important that applicants feel comfortable with the lawyer they choose to represent them. Remember, all lawyers are different in terms of the retainer and fee structure they are willing to enter into. You should be able to find quality legal representation under terms that you can afford.
If you require assistance with your human rights matter or would like to book a legal consultation please contact Wade Poziomka.
Human Rights Law in Ontario 