Interview with Omar Ha-Redeye

  • October 03, 2021
  • Omar Ha-Redeye

David Milosevic

Good afternoon, Omar. Thank you so much for joining the OBA Civil Litigation Section today.

Omar Ha-Redeye

Thank you for having me.

David Milosevic

It's our pleasure. We're hoping to get a little bit of information from you as someone who's on the ground, dealing with access to justice issues as part of our continuing series on access to justice and the effects of the pandemic and court modernization on that access. As part of a background, Omar, could you tell me a little bit about your role at the Durham Community Legal Clinic?

Omar Ha-Redeye

I'd be happy to, David. So I am the executive director at the Durham Community Legal Clinic. The clinic has been around since 1985, so we just celebrated our 35th anniversary. We serve the entirety of Durham region. So that's everywhere from Pickering, all the way east to Bowmanville and all the way up to Lake Scugog. So it's a very large catchment area that is both urban and rural and with many different and diverse populations. Our focus of course, is with the low income population in Durham region, of which we can find many different types. So the main issues that we focus on in terms of legal issues, generally tend to be things like Landlord and Tenant Board, social benefit's tribunal, employment law, human rights, WSIB. And then we also do some other areas like small claims and family law triage even and consumer law and acts as a justice hub. So we have some partnerships in the community that allow us to do a little bit more.

David Milosevic

And do you know approximately how many clients the legal clinic sees in any given year?

Omar Ha-Redeye

Yeah. I mean, obviously it fluctuates from year to year, but I do have some statistics from last year. And so we had over 5,000 intakes over the last year and in terms of cases, just under 5,000. So I'd say a few thousand, several thousand a year is a reasonable estimate. I think there are some fluctuations over the course of the pandemic and I think you're probably going to ask me a little bit about that.

David Milosevic

One of the main issues I want to ask you about is whether there have been any changes in the nature of the demand for legal services that have occurred during the pandemic? And as well as there have been any change in the profile of users of the clinic services.

Omar Ha-Redeye

Yeah, I think everybody has seen quite a bit of change during this pandemic. And I think for our clients, who are the low income and historically marginalized populations in Durham region, their problems have magnified during this pandemic. This pandemic has not affected everybody equally. And the best way I can illustrate that is to quote Steven Wexler, in his 1970 article practicing law for poor people. Where he said, "poor people are not like rich people without money." And the way that he described it is that, poverty in of itself creates, what he describes as an abrasive interface with society. Poor people, as he said, are always bumping into sharp legal things, okay? And so, whereas with other legal problems that we often try to address in our legal system, we're trying to get someone back on track or to resolve the business dispute so that business can continue.

Omar Ha-Redeye

That's not really the case with many of the low income clients that we're helping, because they have many legal issues and they're compounded and they're complex and they're all very much interrelated. So when we address this one particular legal issue, it doesn't fix their lives. Their life does not go on in any sense of normalcy as we understand it. And so during the pandemic when the sense of normalcy that we understood historically, has very much been disrupted, we've seen that even accentuated further for low income clients. And what I mean by that is that, there's quite a bit of mental health issues across society generally, but it's more acutely felt by people who are in low income. Substance abuse issues and domestic violence and all of those types of things that really complicate people's lives beyond just a single or singular legal issue.

Omar Ha-Redeye

We've seen that manifested in much more significant ways over the course of this pandemic. When you throw into that mix, many people who are newly poor. So they were laid off because of the pandemic, many businesses obviously going under or having some financial difficulties and it's the workers who often feel the brunt of that, right? It's the frontline workers, the minimum wage workers, who are usually the first ones that are targeted when there are budgetary crunches. And so these are people who are newly poor, they're going on to Ontario Works for the first time in their lives. And they're trying to figure out what does this mean? I've never been poor before, how do I cope with this new situation, this new circumstance that I'm dealing with.

Omar Ha-Redeye

And that's a very real consequence of the pandemic. Nobody's fault per se, right? The pandemic was not something that any of us expected or anticipated, but we obviously understand that there is going to be an increase on unemployment and underemployment. So, it's not just about having jobs it's about having jobs that are stable, that are well paying and that allow people to contribute meaningfully to society. And so there's an increase in demand, just absolute demand in terms of the services that we're seeing, but also an increase in the complexity of the services that we have to provide. And so what that means is, when we're looking at things like metrics and so you're asking me how many clients do we see a year, that in of itself doesn't really tell you what we're doing.

Omar Ha-Redeye

And in fact, if our numbers were to go down during the pandemic, which for many reasons it probably would. It's in large measure because of the difficulties communicating with people via technology for pandemic services or remote service, where they don't have technology. They don't have minutes on their phones to spend having a phone call with you, let alone access to free WiFi or unlimited WiFi to do a Zoom call. And so what exactly do you do? How do you actually have that conversation with someone, who is on the cheapest phone carrier, that keeps on hanging up and interrupting and has poor reception and worse yet David, has to do a hearing at a tribunal via telephone, where they don't have proper reception and they're unable to participate in a way that they would've been able to in the past.

Omar Ha-Redeye

And what I mean by that is, that a big part of the work that we do... Yes there are some Superior Court aspects of the work that we do, but part of the work that we do is tribunal oriented. And a big part of what adjudicators at tribunal look at are things like the viva voce, the oral testimony that is provided in person, pre-pandemic. And the reason for that is that there's a weighing of credibility, there's an assessment of that testimony by the adjudicator. All of which is extremely important because there's often a conflicting documentary evidence or no documentary evidence at all.

Omar Ha-Redeye

And so that oral testimony, I would suggest plays a much more significant role given the lenient rules of evidence that are found in administrative tribunals, than it does in more formalized court proceedings. And so for low income clients, for low income participants in the justice system who find themselves in those venues and find themselves inadvertently handicapped in terms of their ability to participate fully in those proceedings. They are invariably going to have less likelihood of success, or greater difficulty making out their case. Simply because of the medium which they're forced to engage through.

David Milosevic

That really actually leads to my next point. So we have this shift that's occurring, court modernization broadly, we call it the shift to electronic filing, online hearings. These were slow changes to happen until COVID came along and now they're moving quickly. When you look at this shift to electronic filing, electronic hearings, do you see this as something that will help or hurt the clients that the clinic sees?

Omar Ha-Redeye

So a little bit of both, David. And the reason why I say that is that obviously for myself, it's a lot more convenient for legal professionals, it's a lot more convenient to not have to drive around to different courthouses or tribunals in order to participate, okay? But that's not necessarily the case for many of our clients, as I described. At the same time, I want to give, and I always like to give credit where credits due. And agree with the Attorney General, Douglas Downey, when he said, "we've modernized the legal system by about 25 years in 25 days," okay? It's true. So let's acknowledge that, that this was an incredible accomplishment to be able to move that ahead where many previous governments have not been able to do so. That being said, right? What we're really talking about here is something as simple as online filing, online hearings, technology that was around 25 years ago, okay?

Omar Ha-Redeye

We're not building a modern or cutting edge justice system here, we're playing catch up. And I think that's part of the problem is that, we really need to recognize that these were needs that needed to happen many years ago, but were not where we need to be. And so let's talk about where we need to be in that. I think part of the ministries strategies for creating a modern justice system include, using technology to transform the justice system to make it as they describe it, simpler, smarter and faster, okay? And anybody who has a background in project management and familiar with concepts like the iron triangle, okay? They'll know that you cannot do simpler, smarter and faster simultaneously, something has to give, okay?

Omar Ha-Redeye

And usually it's going to give the most, with the people who are most vulnerable in our system. So I'm all for many of those changes. I've been a big proponent for the use of technology in our justice system and doing many of these things and more quite frankly for my entire career. But I think my role in this particular conversation is to highlight that, as much as we need to be making progress in that front, we still need to maintain, I think in many ways, a parallel, if you want to call it legacy track. For the most vulnerable members of our society that will operate as a safety net, until we work out many of the kinks. And I think it's important to recognize that there will be challenges and unforeseen consequences from the use of technology. And one of the ways that I can point to that is explicitly from the Attorney General's top policies, which talks about transforming the justice system with seamless information sharing.

Omar Ha-Redeye

 I'm all for that, those are very solid principles. But what we're talking about here again, is information sharing as it relates to people's personal justice issues. And so if we are trying to transform the justice system and make it, again, simpler, smarter and faster by violating solicitor-client privilege or forcing lawyers or for that matter clinics, to violate solicitor-client privilege. And this is not a theoretical consideration or concern.

Omar Ha-Redeye

What has to come to the foremost and what must be utmost in all of our concerns and considerations are our professional obligations and professional responsibilities. And I say that because I know historically. Even prior to the pandemic, I've had conversations with the Attorney General. And in terms of trying to collect information and figure out what the delays are and where the delays are. We know the civil delays now are upwards of four years, five years in Toronto, it's a little bit ridiculous. But in terms of quantifying that, the Attorney General's office has difficulties because the courts, based on the principle of traditional independence, will not necessarily release the type of information that they want. So there's a little bit of... I would say attention in our justice system right now about, how and when information can and should be shared.

Omar Ha-Redeye

And perhaps some of that tension is appropriate. I think the solutions though, is not just to modernize the justice system by just focusing on the bureaucratic aspect of our justice system, which is the Attorney General's office, but to also perhaps bolster and embolden the judiciary, probably the central aspect of our justice system in terms of their competencies in that way as well. And I don't think that it's impossible to do that. I think it's a bigger challenge in many ways in the bureaucracy, just based on the seniority of the judiciary and perhaps in many ways, their lack of interface with technology historically. But we do have, for example, Justice Jill Presser, who was just appoint to the bench. And she's the co-author of this book, that's sitting on my desk right now, which is, Litigating Artificial Intelligence.

Omar Ha-Redeye

I would suggest that she would be a member of the judiciary, that'd be well positioned to assist the judiciary itself, in terms of how it collects information, how it anonymises that information, how it analyzes that information and then conveys it, to let's say parties outside of the judiciary, like the Attorney General. So I think this is part of it, is that there are some silos. I think that generally what we like to do is, break down silos and facilitate the streamline sharing of information. But some silos are in fact warranted and in fact necessary, in this context to ensure judicial independence, in other contexts in order to ensure solicitor-client privilege. And a solicitor-client privilege for us as you know David, is utmost, without it we have no job.

Omar Ha-Redeye

We cannot do our function. And I'll use a real example: over the past year, in some work on sex workers, has been a big focus for the provincial government. They like to assist the provincial government in a lot of the endeavors that they're engaged in and in particular, non-sex workers. Because sex workers itself is legal, but sex workers who are the victims of human trafficking, okay? Now the distinction between people who are engaged in sex work legitimately and consensually versus people who are engaged in sex work and are victims of human trafficking, is not a very clear line. And quite frankly, if you approach it with a heavy hand and through law enforcement, a lot of that activity goes further underground and you're not able to build the relationship with members of the community, who can adequately disclose and share information with you that allows you to identify circumstances where human trafficking and abusive and coercive relationships exist.

Omar Ha-Redeye

We only get that information and quite frankly, we get that information more than social workers do and even more than law enforcement does, because of this concept of solicitor-client privilege. We tell them that we will keep this information and hold this information and not give it up to anybody, even if it means losing our job, okay? Even if it means going to jail, because that's how vigorously will protect that information. In fact, the Supreme Court of Canada has described solicitor-client privilege as being the bedrock of the legal system. Because if we don't have the information, we can't do our job for our clients. People will withhold information, they'll be reluctant to disclose the necessary aspects of their case. And so it is absolutely essential that principle be protected. And so when we talk about information sharing and context of solicitor-client privilege, I think we have to be very careful.

Omar Ha-Redeye

The other aspect that I want to talk about is using technology to reduce delays and increase access to justice. Of course, this is what we all want to do. With electronic filing, electronic hearings for speak dates and stuff like that and scheduling dates. Why do we have to spend three hours and commuting at that, to sit in a court to schedule a date. And so there are aspects of this that I am enormously excited about. However, there's always a caveat. And this is why I say the lens that we have to use, is a lens that allows us look for those imbalances in power and vulnerabilities in society. One of the examples that are used by the Attorney General in this strategy, is the use of, let's say a secure video, between jails and the courts, also on its face, an amazing idea, right?

Omar Ha-Redeye

You no longer have to then transport people from the jail to the court house and all of the staffing that comes with that, all the security concerns that comes with that and the delays that comes with that. On its face, a very positive situation. What we've seen happen though, over the course of the pandemic, where these strategies have been implemented, is that it allows correction officers and staff within the prisons to simply not allow accused individuals access to the video in time. They get hung up in being move from their cell to the video conferencing room. They get delayed, let's say by 20 minutes or by an hour or whatever.

Omar Ha-Redeye

And all you need is to say security concerns, or there's a lockdown, or a number of other considerations that emerge in the prison context. And all of a sudden they're not getting a bail hearing. And again, important to keep in mind, those are individuals for criminally accused, right? Presumption of innocence, but yet we're still denying them effectively bail, because we require them to use the secure video link. Going back to my initial point, if we are building in these safety nets, what we would say is, the default perhaps is going to be this secure video. But if we're unable to do it within 24 or 48 hours, okay? Your threshold, whatever you want to use, then automatically becomes transport, okay? There's then an incentive as well on those external participants, outside of the judicial system to actually also facilitate efficiency and to ensure that those proper procedural safeguards are also respected.

Omar Ha-Redeye

So, I think again, it becomes far too simple to just wave a magic wand and say, "we're doing everything by video, we're doing everything electronically and digitally and assume that these problems are going to fixed." And then finally, if you'll let me use a third example. And let's go back to what you talked about with the pandemic. One of the first things to go, when someone loses a job. And many people have lost their job during this pandemic, is their rent. And the reason for that is most Ontarians, most people all across Canada, don't have a lot of extra savings, that's the reality. They may have $10,000, $20,000 in their bank account if even that, okay? And they still need to feed themselves and their family members.

Omar Ha-Redeye

When your money runs out or starts to run out, you're going to be more concerned about eating your food than paying your rent and so that's just a practical reality. They still are supposed to pay their landlord, but the practical reality is, if it's a choice between eating and paying your rent, you will eat and perhaps that's a justifiable decision. The reality though is then that the number of Landlord and Tenant Board proceedings have skyrocketed. And skyrocketed in a way that in fact it is not more effective and not more efficient to do it digitally. Historically, everything in Durham is in one venue at the Landlord and Tenant Board.

Omar Ha-Redeye

Everything in Peterborough is in one venue in Peterborough. Everything in Scarborough is in one venue in Scarborough, that's not what's happening right now. You can actually literally be in five, six, sometimes seven different Zoom calls, to get all of those different residents across different Zoom calls. So, it's not enough to just say, "oh, we're doing everything digitally." No, you have to still maintain some of those historic structures. In order for this to work effectively, so that I can go to one Zoom call where everybody in the same geographic vicinity, would all be in the same call, that logically makes sense. That's not happening right now. And so as much as this strategy by the Attorney General talks about online dispute resolution for the Landlord and Tenant Board. We know right now, the way that it's working, is not working. It's not working at all.

Omar Ha-Redeye

And going back to my previous point. Many tenants don't even end up showing up to these hearings, because they don't know how to work the technology. They've never downloaded Zoom before in their life, that's part of what we do sometimes with our clients. We actually show them, this is how you download Zoom, this is how you use Zoom. We've never used it before, I mean, all of us have been using it now for a year and a half. But they have never used it before, because they've never had to use it, especially in their workplace context, okay?

Omar Ha-Redeye

And if they don't show up to that hearing, they're automatically getting an award against them or getting evicted potentially based on the written agreements that were there, okay? And it is a very significant problem for members of our community.

David Milosevic

That was very helpful. From your previous answer, you highlighted for me some of the challenges for access to justice, for what we call marginalized groups. Such things, I hadn't really thought about, not having enough minutes on your phone to get access. So not having a place to get onto Zoom, in order to attend the hearings or from the detailed issues like that, to the larger problems with the entire system, in some respects like these secure video links or the LTB not having one funnel for all the locations to have a Zoom hearing.

David Milosevic

I think you've hit upon on from the small to the large scale, which is very helpful. And it takes us to this last issue. The modernization of the justice system, the ultimate goal of it, presumably is to be able to provide justice more broadly to the population in Ontario. Do you think that will be something that will be achieved through modernization or are we solving some problems and creating more for marginalized groups?

Omar Ha-Redeye

I like to be generally optimistic. So I do like to think that it is, a step in the right direction. But sometimes when you step in the right direction, you might step on a rock or a pebble. You might roll your ankle a little bit. And so there are going to be some challenges, there are going to be some difficulties along the way. And what I would like to say is that those challenges or those difficulties should not be an afterthought. It's not as if these problems cannot, perhaps should not have been anticipated. What it really means and what it comes down to is that the people who are making the decisions, the decision makers need to be of perhaps a different composition, but also perhaps have different linkages or need to be different conversations with other folks.

Omar Ha-Redeye

And I very strongly believe that you need to have those individuals in positions where they can make different decisions, in order for that to actually be effectable. I also think our bar association, so this is what you're doing here, David, can play a very significant role because as you know our Attorney General was on the board of directors of the OBA. I was on the board with him at the time, that's why we have a relationship that we do. And so they listen to the OBA, or that they at least pay attention a little bit to the OBA and the materials that the OBA is putting out there. And so highlighting these types of concerns is also a good way to apply pressure in those ways. I think that's an important part of the ways that we can do it.

David Milosevic

We're going through a lot of social change both before the pandemic, but maybe heightened by it, where all of us are noticing that the access to society hasn't been the same for every group. And one of the most important areas of access in society, I think arguably is the justice system. It's where we can feel that we get redress and where we might be able to be heard. From your position, both at the clinic and as a professor, what do you see from clients and students when it comes to faith or lack thereof, in the justice system? Do we have reason to be pessimistic or optimistic?

Omar Ha-Redeye

So David, I think there's good reason to perhaps be a little bit skeptical about the justice system. But also optimistic in the sense that the fact that we're having these conversation's means that it'll move in the right direction, okay? And the reason why I say that is that for the vast majority of history, laws were not used in an equitable manner. They were not used in a fair and just manner. They were used in many ways as an extension of power and to persecute individuals, that's reality, okay? It's still a reality in many parts of the world today. What we value about our legal system, is that it is supposed to be independent, that is supposed to be blind, it's supposed to be neutral. As you indicated, it's supposed to be a venue where people can get redress for alleged wrongs.

Omar Ha-Redeye

So, the only way that works though, and the only way that the legal system is effective, is if there's buy-in from the population and if people believe in the justice system. And so this is why you'll often hear about the public confidence in the justice system, the public confidence in the judiciary, putting the judiciary or the justice system to disrepute. All of these concepts that come up in the civil and criminal contexts, are absolutely essential for us to be contemplating when we're thinking about what is the system that we want to build on this existing system that we have here. And so, I think again, the part of it is in order for us to do that effectively, we, can't do that disingenuously. If we do it disingenuously, which I think has been the approach in many ways, for even much of our recent history. What it means then is that we're telling people that this is what exists.

Omar Ha-Redeye

This is the system that we have out there. This is society that we have out there. And when they see something other than that, that discontent or that disappointment will be felt so acutely, that it really does allow them to disengage with the system entirety. And I think that is more problematic than saying, "look, we have some problems. We acknowledge that we have some problems. And here are some of the ways that we're trying to fix or address those problems. And we're also open to hearing some more suggestions about how we can improve on those solutions". I think those are two very different approaches. I can think of myself in the past 40 plus years that I've lived in Canada and I think it's a very different approach when I was a child, okay? I remember being told that everybody is equal, everybody is treated the same as a child.

Omar Ha-Redeye

These are the values that we share in our society and yes, we ascribe to those values. And then realizing at some point to my childhood, I'm not sure what it was, that everybody didn't treat me the same. And then at some point, later than that years after that, maybe it's because I look a little bit different from everybody else. Why do I look a little bit different from everybody else? I've never been told by my parents that I look a little different from everybody else, right? This is a process where at some point you start to feel as if you've been lied to, in terms of the promises that we were all made about the society that we live in. And I think this is why we talk about marginalization or historic marginalization, that's where it comes from, okay? It's that, whatever those barriers are historically or otherwise, and part of our social fabric, the marginalization doesn't happen, usually deliberately, sometimes it does.

Omar Ha-Redeye

But it doesn't often happen or typically happen deliberately, it's inadvertent, okay? Or unintentional. And all of a sudden someone who should be very much part and center or front and center of society is being pushed to the fringes. When we bring the same concept to the legal community, I think it's an exciting time in some ways, whereas the legal community, historically again, was very homogeneous in some ways. I think it's been diversifying in many ways and in terms of gender and other types of populations. But really when we look at the full breadth of the Canadian diversity, as we understand it today, that's a relatively recent phenomenon in the legal industry.

Omar Ha-Redeye

And so those same patterns that we talked about more broadly in society, also apply in the legal profession. And so if we're training in the next generation of lawyers to believe in a pie in the sky vision of the legal system, that where everything works perfectly and there are no problems and you must believe that this is the only way to do it and our way is the best way. Then I suspect for the very intelligent and smart people that we see going through our law schools and entering in to our legal system, that they'll catch onto that eventually. And when they do, we don't want them to be so disillusioned that they lose faith in the system entirely, or for that matter, lose faith in being a lawyer. And so if we want to train critically thinking lawyers who are problem solving and oriented towards the solutions and not just picking on the problems, then we have to be a little more transparent and realistic about the nature of the challenges that we're facing.

Omar Ha-Redeye

But I think we can do that in an optimistic way. I think hopefully it comes across that I am still very optimistic. I think the fact that we have conversations like this, gives me greater hope, right? I mean, you could have chosen and you have chosen to have conversations with people who are very high profile, much more illustrious than myself. But the fact that you are willing to have this conversation, David, with myself as well, it is positive. It's reassuring that some of these other perspectives and voices can also be included in this broader conversation about what our justice system should look like.

David Milosevic

I think it's the few individuals like you with the energy, the commitment, the ability to make these changes, who are the key change makers here. So I think you are very modest in what your contribution is, but I appreciate that. Omar, on behalf of the Ontario Bar Association Civil Litigation section, I'd like to thank you very much for making the time to speak with us today. And I look forward to speaking with you again in the future.

Omar Ha-Redeye

Thank you so much, David. It really was a pleasure.

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