The Two-Fold Dilemma of the Self-Represented Litigant: COVID-19 and Navigating the Court System

[This post was a collaboration written by Anna Sallah and Julie Macfarlane.]

COVID-19 has driven up anxieties and everyday challenges for everyone, but for the self-represented litigant, it has raised new and especially difficult issues. Being a self-represented litigant on a normal day is no small feat: it involves tackling issues ranging from searching for and identifying legal resources, to applying arcane and complex rules and procedures, all while navigating unfamiliar territory.

Moving from dealing with the regular uncertainties of being an SRL to being an SRL during COVID-19 is like moving from the frying pan, to the fire.

As the courts begin to move gradually towards reopening and “business as usual”, NSRLP is continuing to track and share changes and developments in a way that makes this information accessible to the public, through our Court Closures and Wills & Affidavits pages.

This has been an enormously time-consuming project for the last four months (grateful thanks to NSRLP research assistants Hannah Thackeray, Anna Sallah, and Anjanee Naidu, as well as NSRLP West Project Coordinator Hayley Waring, all of whom we have come close to exhausting in the process… and Project Manager Dayna Cornwall for many hours of review). However, we are excited to have what amounts to a complete archive for future researchers of the adjustments and changes that have been forced on the courts across Canada during these turbulent months.

In the course of this work, we have travelled the trajectory of court closures and re-openings along with the SRL community. This has brought two realisations to the fore. One is that in most cases, there is a lack of clarity in court communications with the public, which amounts to a tacit exclusion of SRLs. The second is that we are seeing some explicit exclusions of SRLs from certain available procedures as the courts open up.

Tacit exclusion

Many of the announcements coming from the courts during this period have been written in terms that make them extremely difficult for members of the public without legal training to understand. (And a number have also tested the ability of this long-time law professor to comprehend legal gobbledegook!)

NSRLP’s regular updates have highlighted the unique role of the Project as “translator” between the justice system and the public. This “translator” role builds on our work in the Primers series (currently in the process of being updated and upgraded), and challenges us to find ways to express legal concepts and processes in accessible language.

First there is the terminology. If you don’t know what is meant by (e.g.) “times prescribed”, “case managed”, “urgent family law appeals”, “adjourned”, “notice of hearing” or, for that matter, “civil proceeding”, what would you make of the notices issuing thick and fast from the courts? And that’s just the terminology…

Here are two examples of what courts are asking people to get their heads around (no names…and there are plenty of other similarly confounding examples in our archives):

“The Court’s previous directive regarding the time limits for filing and service of documents under Rules 62 and 63 of the Rules of Court has been superseded by the Province of X’s Mandatory Order, issued under the Emergency Measures Act, as amended. For greater certainty, the Court’s previous directive is hereby revoked.”

“The time periods for commencing civil appeals under Rules 90.13(3) and 90.14, and criminal appeals under Rules 91.09(1) and 91.10 of the Civil Procedure Rules will be suspended for the period from March 26 to June 26, 2020. This does not apply to appeal periods set out in other legislation. This should mean fewer new appeals will be started during this time. The deadlines for making the motion for date and directions in Rule 90.25(2) and 91.12(2) will also be suspended for this period.”

Of course, the courts have historically been accustomed to communicating solely or primarily with counsel in their “public” announcements; indeed, some of the court closures announcements are explicitly addressed to members of the Bar, and not the public. The current (and long-true) reality of course is that up to half and sometimes more of those who need this information are members of the public who are unable to afford legal representation.

This requires a change in how the courts communicate with users. They can no longer assume they are writing only to legal counsel. Access to justice demands an intention to communicate and explain the law and its procedures to everyone. The courts must be partners with their users, including those without representation, to help them solve the puzzle of legal processes, to enable them to meaningfully participate (to paraphrase the Supreme Court of Canada’s decision in Pintea v Johns).

Explicit exclusion

A second realization is that we need to follow closely the incremental steps toward reopening in courts across Canada, to ensure that SRLs are not treated differentially or less favourably than parties with representation. We are increasingly aware that as the courts begin to reopen, there are many opportunities to treat represented and unrepresented parties differently, and to put this down to general administrative overload and/or lack of supportive technologies.

We would draw attention to two examples we have noticed, thus far into re-opening:

• In the Alberta Court of Queen’s Bench, non-binding Judicial Dispute Resolutions have been re-introduced but with the caveat that “all parties must be represented by counsel”. In the same Court, the option of written arguments has been made available in family applications too complex for a Simple Desk Application in cases where “each party is represented by a lawyer”. In response to a letter raising concerns about this from Rob Harvie, QC, Chair of the NSRLP Advisory Board, the Court responded that these restrictions reflected the “most efficient use of its current limited resources”, citing possible difficulties with SRLs filing incomplete materials in complex matters, and limited remote technology resources at the present time. We appreciate the Court’s response to Rob, and hope that these differences among represented and self-represented parties can shortly be addressed.
• In the Supreme Court of Nova Scotia, non-urgent hearings have now been restored for non-urgent matters, but only where “parties are represented by counsel”. Chief Justice Deborah Smith has replied to Rob and says that “we are very cognizant of the issue you have raised in your letter and are actively working towards finding a solution”. Again we appreciate this response, and look forward to this imbalance being addressed.

The unpredictability of COVID-19, and future uncertainties, makes it difficult to envision timelines, and it is understandable that courts would be trying to maximize limited resources in responding to the pandemic backlog. However, we are concerned that in the overall disruption caused by COVID-19, a re-surfacing of the courts’ traditional normative bias against SRLs might create long-term built-in differentials and disadvantages for those without representation.

As our Advisory Board Chair wrote to the Chief Justices of Nova Scotia and Alberta to express our concern at these developments:

“We understand the strain that the COVID crisis has placed upon the justice system as a whole, and upon Judges in particular. However, we are aware that there appears to be an exclusion of self-represented parties from certain aspects of access to justice…

While we are certain that this …is a form of triage in difficult circumstances, the reality and perhaps as importantly, the perception arising from these restrictions is that there are certain forms of justice available to people who can afford lawyers, which are not available to those without.

When we consider the current discussions regarding the interaction between justice and marginalized groups, it is troubling that this message is being expressed by our courts.”

We are encouraged by the response from Alberta and Nova Scotia, and shall continue to monitor this situation.