Wrong Diagnosis, Wrong Strategy: Why More Restrictions on Self-Represented Litigants Won’t Work, and Aren’t Justified

Our daily interactions with self-represented litigants (SRLs) from across Canada, along with our continuous tracking of the developing jurisprudence around SRLs, disclose the emergence of a judicial strategy that amounts to a war on self-represented parties in some courts and jurisdictions. The resulting mistrust and anger among many reasonable members of the public should be a cause for alarm among members of the profession.

Not only does this strategy undermine our commitment to a right of access to the courts, and ignore the Supreme Court of Canada’s clear statement in Pintea v John that SRLs cannot and should not be treated the same way as expert counsel, but by punishing SRLs for their unintended mistakes with vexatious litigant and court restriction orders, this strategy is also making the public angrier and even more indignant at their treatment in Canada’s Access to Justice crisis.

Public antipathy toward legal regulators, as well as the profession and courts as a system, is reaching unprecedented levels. Please, let’s not make it worse.

Doubling down

There is an unfortunate tendency for oppressive systems to “double down” when challenged, in the misguided belief that being “really tough” will fix the problem. Is this what we have come to?

The drift toward doubling down – justified by a particular reading of the landmark Supreme Court decision in Hryniak – is especially plain in the expanding strategy used to limit access to the courts in Alberta. Since 2016, and the decision in Hok, the Alberta courts have asserted an “inherent jurisdiction” in regulating access to the courts by SRLs. Rather than using a rule of court, the “inherent jurisdiction” approach allows for limitless expansion of who can be barred from access without special leave (more on this special leave in a moment). It also, critically, allows the court to anticipate future behaviour rather than have to show a past and persistent pattern of misconduct.

This is not a small change, and it is proving extraordinarily hard for those of us keeping track to keep up (and we appreciate and commend to you the blogging of our colleague Jonnette Watson-Hamilton on this topic). Over the past six months, the NSRLP’s SRL Case Law Database team has drafted a series of research reports on vexatious litigant case law across the country, only to find on the completion of each draft that it is suddenly out-of-date. Hence this blog, as we refocus our efforts on an intervention on this issue in the Alberta Court of Appeal.

Back to basics

In case we need reminding, the primary reason for self-representation (confirmed by studies in the US, England and Wales, Northern Ireland, and New Zealand[1]) is lack of resources[2].

The average Canadian makes $53,000 per year, or about $4500 take-home a month. Many lawyers charge upwards of $450 per hour. That means that 100% of a litigant’s monthly income will buy 10 hours of legal assistance (and with the present due diligence regimes, try purchasing less than 10 hours of legal work for any matter).

And of course, public assistance is only available in some family and civil cases, where the applicant lives on or below the welfare line (and this was Ontario’s situation before the recently announced 30% cuts…).

So people come to court without lawyers, or having purchased only a limited amount of legal help, and they make mistakes. The Supreme Court of Canada[3], the Newfoundland Court of Appeal[4] and the Ontario Court of Appeal[5] have all made important and authoritative statements about:

• The fundamental inequality of those with and without legal training;
• The intimidation and confusion that is inevitable for even the most well-educated and experienced SRL.

But this nuanced approach is being ditched in some courts. Instead, SRLs are being punished for procedural mistakes by being told that they cannot come back to court without formal leave, in some cases having an additional requirement imposed that they must come back with a lawyer (whom they cannot afford to pay).

There is an effort to persuade us that an order requiring an individual to obtain leave to return to court is not unduly onerous (“minimal”[6]). Try telling that to SRLs who, unclear regarding the appropriate procedure, attempt to apply for leave, wait months for a response, and fail over and over again. Since Hok was decided in 2016, until March 2019, we have found 50 court restriction orders in Alberta alone. We have not yet found a single successful application for leave to return to the court. The leave application is a written document, going up against a judgment (sometimes hundreds of paragraphs) written by a judge. How is this a level playing field?

The evaluation game: How judges are assessing SRL behavior

Judges are not trained to divine the internal mores of litigants, and of course usually they don’t need to even consider this – they simply have to engage with the legal arguments of counsel.

But where an SRL comes without counsel, some judges are spending more and more time analyzing the litigant’s beliefs and evaluating their behavior in order to justify vexatious litigant orders, court restriction orders, and punitive costs (for example, NSRLP pointed out last year that this was leading to an alarming reliance on gendered assumptions and stereotypes).

The first foray into this zone of personal and ideological evaluation came with the Meads decision in 2012, introducing the concept of an “OPCA”[7] litigant. While there are a few examples of “Freeman on the Land” (who do not accept the authority of the courts) appearing in the Alberta courts, Meads raises concerns that there could easily be conflation between some of the characteristics attributed to such litigants (for example, filing a lot of paperwork, suing a lot of people) and the behaviour of an SRL reading up on the net about how to “best” bring a law suit. In the ensuing years there has been mounting evidence of conflation between an “OPCA”[8] litigant and an SRL who makes basic errors, including “irregular”[9] and “inappropriate”[10] behaviours.

Now a new judgment has been handed down from Associate Chief Justice Rooke in the Alberta Queen’s Bench, in which Justice Rooke summarizes the decision to bar an SRL from coming back to court without leave in Alberta’s new “inherent jurisdiction” as based on three heads of evidence:

• The litigant’s entire public dispute history, including litigation in other jurisdictions and non-judicial proceedings (at para 580) (and see Makis v Alberta Health Services);
• Having been previously declared vexatious, probably sufficient to ensure that the litigant will be again declared an abusive litigant (at para 582);
• The “personal attributes” of the abusive litigant including their affiliations, activities outside the courtroom, demeanour, and political values.

In another twist, there are judicial declarations that the test for barring access to the courts is the impact of behaviour, and not its motive. The actions of an SRL which have an abusive “effect” will be subject to restrictions[11]. Somehow, we have lost sight of intentionality and its importance in punishing mistakes, which seems to open the door to still more conflation between SRLs on an ideological mission, and those who file late, or file too much paperwork, or file incorrectly by mistake. Should these be treated the same way? Ignoring the reasons for mistakes and misjudgments that might then be seen as process abuse denies the reality of the stress and frustration experienced by many SRLs, as Drew Yewchuk and Christine Laing point out.

There is also the disturbing reassertion of an argument historically used by authoritarian regimes to suppress dissent, limit opposition, and control individuals: “querulousness”. Pathologizing people’s justifiable anger at having no meaningful access to court is not useful. It is an echo of the early days of the NSRLP when we were forced to constantly debunk the popular “theory” that those filing self-represented could be “explained” by Psychology 101 – i.e. that they all had pre-existing mental health conditions.

How Hyrniak Offers a Better Strategy

So what should we do when SRLs make mistakes, or act in a way that seems disrespectful of the court, or neglect a better and more constructive course of action?

The answer is not simple. But Hryniak offers guidance. Karakatsanis J. says: “…The balance between procedure and access struck by our justice system must come to reflect modern reality and recognize that new models of adjudication can be fair and just.”[12] Some courts are now using the language of “culture shift” (procedures that are “proportionate, timely and affordable” [13]) to justify “…control of persons who abuse court processes.”[14] Hryniak is about access, and constantly reiterates the importance of fairness and justice. This means more than just system efficiencies, and fairness ought not to be trumped by efficiencies. As an Ontario Court of Appeal case in which the NSRLP intervened last month (Kawartha-Haliburton CAS[15]) confirmed, the principle of fairness in Hyrniak must recognize the vulnerable nature of certain litigants, including those without counsel.

The courts are in danger of becoming an elitist forum. With more legal aid cuts, and no sign of the expansion or de-regulation of private legal services, expect greater and greater numbers of people unable to seek redress for injustices done to them. If in addition some courts are shifting away from their core commitment to enable litigant rights, this should trouble us all.

By Julie Macfarlane and Megan Campbell, NSRLP

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[1] “Cases Without Counsel: Research on Experiences of Self-Representation in Family Court” IAALS, University of Denver 2016 available at https://iaals.du.edu/publications/cases-without-counsel-research-experiences-self-representation-us-family-court; “Access to Justice for Litigants in Person” (2011) Civil Justice Council Report and Recommendations to the Lord Chancellor, England and Wales available at https://www.judiciary.uk/wp-content/uploads/2014/05/report-on-access-to-justice-for-litigants-in-person-nov2011.pdf; Toy-Cronin, Bridgette. “Keeping up Appearances: Accessing New Zealand’s Civil Courts Without a Lawyer”, (2015) Executive Summary of PhD Thesis, University of Oregon; “Litigants in Person in Northern Ireland: barriers to legal participation Gráinne McKeever, Lucy Royal-Dawson, Eleanor Kirk and John McCord available at https://www.ulster.ac.uk/__data/assets/pdf_file/0003/309891/179367_NIHRC-Litigants-in-Person_BOOK___5_LOW.pdf

[2] Julie Macfarlane, “The National Self-Represented Litigants Project: Identifying and Meeting the Needs of Self-Represented Litigants”, 2013 https://representingyourselfcanada.com/wp-content/uploads/2016/09/srlreportfinal.pdf

[3] Pintea v Johns, 2017 SCC 23

[4] Young v Noble, 2017 NLCA 48

[5] Moore v Apollo Health & Beauty Care, 2017 ONCA 383

[6] Unrau v National Dental Examining Board, 2019 ABQB 283 at para 946

[7] Organized Pseudo-legal Commercial Arguments: see Meads v. Meads, 2012 ABQB 571, 543 A.R. 215 and my blog at the time warning of conflation https://representingyourselfcanada.com/avoiding-conflation-opcas-and-self-represented-litigants/

[8] Organized Pseudo-legal Commercial Arguments: see Meads v. Meads, 2012 ABQB 571, 543 A.R. 215 and my blog at the time warning of conflation https://representingyourselfcanada.com/avoiding-conflation-opcas-and-self-represented-litigants/

[9] For example writing a letter to a judge, something that many members of the public believe they should be able to do. Mazhero v CBC/Radio-Canada, 2014 QCCA 107 at para 28.

[10] For example, asking for an explanation of procedure: Boyda v Shaw, 2015 ABQB 780

[11] For example, Unrau v National Dental Examining Board, 2019 ABQB 283 at para 27

[12] Ibid at para 2.

[13] Ibid at para 28

[14] For example, Hok v Alberta, 2016 ABQB 651 at para 29 per Verville J..

[15] Kawartha CAS v MW, Curve Lake First Nation and Office of the Children’s Lawyer 2019 ONCA 316, with thanks to our pro bono counsel Kate Kehoe