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Self-Represented Litigants in the Courts: How They Are Shaping the Jurisprudence

What happens to a system of expert legal adjudication when in some courts, up to three in four litigants are advocating for themselves without the assistance of counsel?

The influx of self-represented litigants (SRLs) into the family, civil and appellate courts (family: 50% across the country, up to 80% in some urban courts; civil between 30-50%; appellate around 30%) is transforming the justice system. And not, as many would say, in a good way.

Judges struggle to find a balance between appropriate assistance and explanation (as the Supreme Court of Canada decision in Pintea v Johns now requires,) and not compromising their neutrality as adjudicator. Some simply lost patience, and sometimes behave in ways that are undermining public confidence in the legal system.

Opposing counsel worry that they are spending their clients’ money explaining the process to an SRL. Some are genuinely trying to figure out how to serve their client and move the process forward expeditiously and fairly. Others develop strategies for taking advantage of SRL lack of knowledge that can only be described as “sharp practice”.

To be fair, both courts and counsel are confronting questions that they have never had to consider before. Inside the guild of legal language, arcane processes and tacit conventions, lawyers and judges understand one another. Legally untrained members of the public are outsiders.

The Self-Represented Litigants Case Law Database

At the National Self-Represented Litigants Project, we began to realize about two years ago that a significant jurisprudence was being created around these questions. We successfully sought funding (from the Law Foundation of Ontario and the Foundation for Legal Research) to establish an ongoing research database for decisions regarding SRL costs, costs against them, procedural fairness issues (like judicial assistance) and vexatious litigants. Our goal is to populate the SRL Case Law Database with extensively analyzed relevant cases back to 2013, and then continue forward.

So far we have published four research reports arising out of this work, with a fifth out this fall, as well as a preliminary report on our methodology. I encourage you to read each of these, but here at a glance are some interesting takeaways, and a few important themes.

Judicial assistance in levelling the playing field?

Since the landmark Supreme Court decision in Pintea in April 2017, a number of cases have addressed how the courts discharge their obligations to ensure a fair outcome in accordance with the CJC Principles, several of which refer to and build directly on the Principles.

There have also been a number of decisions that suggest that SRLs are exploiting their position as confused, uneducated and unaware of the complexities of the legal process to ‘game’ or ‘abuse’ it.[1] Assumed to be malevolent actors, not simply someone unfamiliar with the legal system, their mistakes are “intentional” system abuse.

At the same time, there have been a number of cases in which the Principles have been deemed inapplicable to an SRL who is sophisticated and experienced.[2]

Should SRLs Get Costs?

The jurisprudence is changing in relation to giving SRLs compensation for their time in some way proportionate to lawyers. Some cases suggest measuring this by the value of their work to the court.[3] This seems like a step towards an objective standard, but does of course privilege sophisticated litigants.

The potential that a successful SRL may receive an award for costs besides disbursements is important to ensure some incentive to represented parties to settle.

Deterrence & “Punishment” of SRLs

Some decisions suggest a strategy of punishing the SRL by using substantial or punitive costs.[4] We reported in July (Cost Awards Against SRLs) that in our Database to date, 42% of cases that awarded substantial or punitive costs against SRLs also raised issues of procedural fairness – for example questions about whether the SRL understood the procedure, or was provided with sufficient judicial assistance. Substantial or punitive costs are often justified by delays caused by the SRL’s mistakes or omissions. Many of these same cases include judicial dicta describing the SRL as “vexatious” in some way but stopping short of a formal designation of them as a vexatious litigant. Once again this raises the question of intentionality when SRLs make mistakes or omissions. While delays certainly raise Access to Justice issues, this may be in some tension with ensuring that SRLs are not penalized for their lack of procedural knowledge.

More data and analysis will be available in January 2019 in our new research report, “Vexatious Litigants”.

Summary Judgment Procedures against SRLs

Our 2015 research report on Summary Judgments noted vastly increased numbers of summary judgement procedures (SJPs) in the last 10 years, almost entirely brought by represented parties against SRLs, and an extraordinary success rate of 95%.

We are not tracking SJPs against SRLs in the SRL Case Law Database, but we are continuing to watch this via the work of other researchers. In December we act as intervenors (pro bono counsel Kate Kehoe) in an appeal on the use of summary judgment in a child protection case – here against a represented litigant, but often used against SRL parents.

 Evaluating SRL Behaviour

With the influx of SRLs into the courts, evaluation of SRL behaviour – causes, motivations, and intentionality in delays and mistakes – takes on a far greater importance. We have noticed some gendered lines of reasoning used by judges in some evaluations of SRL behaviour. Most of this relates to female stereotypes (for example, schemers, attention-seekers, unreliable reporters, manipulators, and even “treating litigation like shopping”).[5] Women SRLs are also sometimes described in terms of their physical appearance. We also notice references to male stereotypes of combativeness and aggression in some vexatiousness cases (our upcoming report, The Vexatious Litigant).

Some Themes

If these are your takeaways, what are some of the emerging themes in the SRL Case Law Database?

  • SRLs are making some progress with formal recognition at the highest court in the land. Pintea set aside the formal equality fiction for the treatment of SELs and lawyers by the courts. Some of the subsequent jurisprudence has usefully clarified and expanded the Principles,
  • There are also some worrying signs of regional disparity that may reflect local legal culture. For example, there is a lot of negative case law coming from the Alberta courts regarding SRLs.
  • Related to this, there seems to be a risk of judges and lawyers over-simplifying who SRLs really are. We notice this in relation to the use of gender stereotypes, as well as assumptions about intentionality. One specific example is some conflation between “Freeman on the Land” a bizarre but tiny group in Alberta, with every SRL who addresses the court wrongly, or submits a laundry list of arguments, or fails to follow a particular procedure[6].
  • Public faith in the justice system is being heavily undermined by the negative court experiences of many SRLs, who now comprise Canadians of every age, ethnicity, class and educational level.

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[1] Re Thompson, 2018 ABQB 87, Thompson v Alberta Labour Relations Board, 2018 ABQB 220, 1985 Sawridge Trust v Alberta (Public Trustee) 2017 ABQB 53, Gray v Gray, 2017 ONSC 5028. For more detail see “Pintea v Johns: 18 Months Later.”

[2] Clark v Pezzente, 2017 ABCA 220. For more detail see “Pintea v Johns: 18 Months Later.”

[3] John-Cartwright v Cartwright, 2010 ONSC 2263, Cassidy v Cassidy, 2011 ONSC 791. For more detail see “Cost Awards for Self-Represented Litigants.”

[4] The definition of substantial costs is 1.5 times more than (regular) partial indemnity costs; Punitive costs have been described by the Supreme Court of Canada as appropriate “only where there has been reprehensible, scandalous or outrageous conduct on the part of one of the parties” (Young v Young, [1993] 4 SCR 3, 1993 at para 260)

[5] Delichte v Rogers, 2013 MBQB 93, M. (M.A.) v. M. (D.J.), 2013 ABPC 101, SLMD v AVD, 2017 BCSC, CLMvMJS,2017BCSC799, M. (M.A.) v. M. (D.J.), 2013 ABPC 101, Ottewell v Ottewell 2013 ONSC 721. For more detail see, “When Judges See SRLs, Do They See Gender? Observations on Gendered Characterizations in Judgments”.

[6] Noted also in Professor Jonette Watson-Hamilton’s recent blog, “The Increasing Risk of Conflating Self-Represented and Vexatious Litigants” (September 17th 2018), ABlawg (blog), online: < https://ablawg.ca/2018/09/17/the-increasing-risk-of-conflating-self-represented-and-vexatious-litigants/>.

Comments

  1. Justice is never going to be accessible, affordable and accountable without change comparable with the example of employment tribunals in England.

    These tribunals encourage self-representation. There’s primary reliance on written submissions and inquisitorial adjudicators employed by the state take command of the process. (Never mind what you say—this is what I need to know.) A three-person appeals tribunal, if required, comprises a lawyer, someone with union experience and someone experienced as an employer.

    One key element is to empower the adjudicator to take charge rather than having a judge sit like a bump on the log while lawyers bring obstructive motions and battle it out. Another is to have the adjudicator appointed by the state so as to avert the incentive for docket-padding that lawyers engage in for a pastime.

    I know of a case involving dismissal from employment estimated by the lawyers to require between $2,000 and 3,000 for a result. After the claimant’s lawyers bankrupted her for $75,000 for their fees, she received $400,000 after a nine-year battle, with the majority going in legal fees. I know of another case that’s ongoing after 10 years, with the dismissed employee’s costs funded by his union.

  2. It turns out that the endorsement by the SCC on the CJCs principles for SRL & accused person was only lip service or the attempted visually effect by the SCC Judges that this means something . True be told many judges do not even reconize this as a issue or item that they have to follow . Proof ?

    http://alberta.newjusticeforthepeople.com/federal-court-info-for-the-people/

    Please check out the memorandum of argument & evidence provided with this further down this page from link . You will read this is true .

  3. Thank you NSRLP for another great article!

    Thank you SLAW.ca for publishing this article and opening up the dialogue recently with Self-represented Litigants, SRLs, aka LIPs, Litigants in Person.

    I think I’m one of those SRLs the courts described in this special rule for you, you can walk and talk, we can stomp all over you!

    – “At the same time, there have been a number of cases in which the Principles have been deemed inapplicable to an SRL who is sophisticated and experienced.[2]”

    Respectfully, I don’t think a settlement in the hall with Rogers at Small Claims Court, or a settlement at the case-conference with 407 ETR, again, at Small Claims Court, qualifies me as a litigant who is “sophisticated and experienced”.

    Since being disabled by my public health-care almost 7 years ago, at best count, I’ve invested almost 4,000 hours in an effort to learn the law, learn the Rules, and represent myself against 4 publicly (0r mostly publicly) funded law firms, in order to achieve justice and move forward.

    The only way I managed to get through in the Superior Court of Justice was by following the lead of counsel, who did everything at the last minute, leaving me to scramble to reply to 4 law firms, 4 motions, a disabled non-lawyer with PTSD, allowed the time a law firm would get to respond to 1 motion.

    I wasn’t allowed to file things faxed after 4pm, 3 law firms late served their moving motions, they all filed. Then I was given 7 days to respond to the 4 motions on behalf of 14 defendants, even though I started trying to release 5 defendants the year before.

    I had no idea what an order was, or the relevance of it, that’s why I probably looked pretty stupid appealing the reasons! I didn’t even realize that when the court of appeal brought up the order during arguments, the order I had in fact written (stress really impacts my memory now). I didn’t know the order should have looked exactly like the reasons, no wonder counsel didn’t want to do it. The reasons gave far more relief than the motion of the hospital sought.

    Anyway, both my appeals were due long before the were orders, in fact, there still aren’t even orders about the costs from Superior Court, how could I appeal orders, that didn’t exist?!!

    This didn’t really sink in until I read this decision, a few weeks ago (seriously) at para 11 Citation: Cheung v. Samra, 2018 ONCA 923 (CanLII), http://canlii.ca/t/hw4n9

    I was having so much trouble getting even summary procedural advice that was timely enough to do any good, I actually posted a question about it on Quora, Orders and Reasons.
    https://qr.ae/TUt8A0

    Just because some of us have backgrounds that make us seem sophisticated when compared to others not comfortable speaking in public, we are still non-lawyers, why would the Rules be strictly enforced against us, when they aren’t against learned counsel, who aren’t ganging up to take unfair advantage of each other, why is it permitted against disabled SRLs, any SRLs?

    Thank you for continuing of dialogue NRSLP and SLAW!

  4. I’ve represented myself in the Quebec Superior Court with the help of a legal adviser who helped write my written arguments to file with the Court. In The Quebec Court you representing yourself you are given a choice to to present your arguments orally or by writing, I chose through written arguments, which my opponent lawyer fought to have that right quashed and to present oral arguments, the presiding judge however dismissed his motion and reminded the opposing lawyer that the courts are more lenient with people representing themselves(pro se). They are more lenient too in following the legal format required to follow when writing and presenting written arguments, same in the U.S Courts when I represented myself there too, seems like the judge or judges that heard your case were not helpful in protecting your rights representing ypurself, (pro se)..

  5. I wish to comment on the courts use of “expert evidence”. in my case it was dna testing, I argued that I wanted complete disclosure and examination of the evidence, I was told that because it was not a criminal court, the court had no responsibility to do this, To my thinking, if it is expert evidence that affects the rights of someone in court, it is their right to full disclosure and examination, When I pushed this issue, that is when the file was silently transferred to another court and I was not advised, the case was dismissed with costs against me,, when I tried to come back and showed the case had been booked on the same day at the same time for an examination of the evidence, in the Chilliwack BC court, and had a receipt for the room booking, the judge refused to address this at all, The problem with it being expert evidence, is that the court believes it completely,, If it is going to be in our courts with this sort of influence on the outcome,, what are the rights of the person asking to review it??? Out here in BC it is zero, instead of respecting the law of transparency and disclosure, the judge in my case labeled me vexatious, issued awards of triple costs, even though I had already been declared indigent, and insisted I had no right to come back to court, does no one think this use of expert evidence without review might be biased,, and to attack a member of the public asking for their rights to disclosure, in this manner, seems like the farthest thing from the application of justice, The issue of legal aid out here is one thing,, but what about the lack of justice ??

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