Column

Why I Am Still Constantly Shocked by the Way the Justice System Works

NSRLP
Author: Dayna Cornwall, Project Manager, NSRLP

As I approach my fifth anniversary working for the National Self-Represented Litigants Project (NSRLP) I find myself feeling reflective.

I could not have anticipated ending up working in the legal sphere, in the world of “access to justice.” Until 5 years ago I’d never heard that phrase, or had any real understanding of the justice system. My background is in libraries, among other things, and I’d never been involved in any kind of legal proceeding. So although I was well-educated and informed in general, and aware of many social justice issues, my knowledge of the legal world was (like the majority of people) gleaned from movies, tv, and books.

It’s been quite an education.

While preparing for my job interview with NSRLP in 2016 I was shocked to read Julie Macfarlane’s original 2013 study on SRLs – I had no idea that such high numbers of litigants in family and civil (and criminal) law were self-representing, no idea that the main reason they were doing this was inability to afford counsel. My general, vague understanding, without ever having really thought much about it, was that if I couldn’t afford a lawyer, legal aid would help me out. I wasn’t naïve enough to think I could afford a lawyer for any length of time (though I had no real sense of just exactly how much legal services cost), but I assumed legal aid would provide at least some support. It was truly shocking to learn that the threshold for legal aid in Ontario is an annual income below $19,000. Learning that the average cost of legal fees is at least $350 an hour, it didn’t take me long to realize that most of the people in my life, family and friends, wouldn’t be able to sustain legal services without going into massive debt. Seen in this light, I finally understood that for most people the decision to self-represent is barely a decision at all.

I wrote about this, and my initial shock at the access to justice crisis, in July 2018, about a year and half into my time at NSRLP.

Since then, I’ve continued to learn about the Canadian justice system, and ordinary Canadians’ experiences within it. Somehow, I still find myself continually shocked. It seems that every time I turn a corner within the legal world, I hit another wall – there are just so many barriers to full access to justice for so many people.

A sample of the barriers I’ve witnessed since coming to NSRLP include:

  • Self-represented litigants being labelled “vexatious” and having their access to the courts cut off. Our research work on this topic has unearthed some concerning patterns. A vexatious designation is meant to be a punishment used in rare circumstances where a litigant is deliberately abusing court processes, but it appears that self-represented litigants are often designated (or just vaguely labelled) vexatious for behaviour stemming simply from their confusion with legal processes. Vexatiousness seems to have become a weapon that the courts can use to push SRLs out of the process, rather than dealing with the complexities of the SRL phenomenon and finding ways to help them navigate the system.
  • SRLs dealing with Tarion (Ontario’s new homes warranty program) through the Licensing Appeal Tribunal, meant to solve disputes between homeowners and builders. Consumer Advocate and former SRL Barbara Captijn writes and speaks often about this issue, pointing out the lack of protection or compassion for SRLs in this process, the conflicts of interest, and the vastly uneven playing field between consumers and the building industry. This past February, Barbara wrote about one of the most heart-breaking examples of this consumer protection breakdown, Daniel Emery’s sad experience.
  • Outrageously large costs awards against SRLs, used as a punitive weapon by the courts. Losing SRLs, often those deemed “vexatious,” may be saddled with what amount to huge fines in an effort to punish them for perceived abuses (perhaps even just the audacity of appearing self-represented). These “fines” can reach well over and above the intended purpose of costs awards, which is to help a winning party recoup their legal fees. The most prominent example is Valenti Pintea, an SRL ordered to pay costs of nearly $83,000 by the Alberta Court of Queen’s Bench. Mr. Pintea’s case ultimately ended up before the Supreme Court of Canada in 2017, where NSRLP acted as intervenor, and mercifully the SCC decided in his favour. We have published a great deal of content on the Pintea case, including 2 reports (2018 and 2021) tracking the use of the SCC decision across various courts, in part because it is representative of this tactic (as well as other strategies) used by the Courts to punish and deter SRLs. But Mr. Pintea’s experience is far from unique – we have heard from many SRLs who report being ordered to pay excessively large costs awards.
  • Just recently we’ve become more aware of the challenges SRLs with cognitive disabilities experience in seeking court accommodations. It seems that even where processes for accommodating such disabilities exist, litigants, and even judges, are not aware of them, and so SRLs go through the process of filing motions (leaving their private medical information open to scrutiny and abuse by the opposing side) to have their disability needs met, only to often face denial – made even worse by a lack of compassion. We are continuing to conduct research in this area (we invite anyone with an experience of trying to get accommodation for a cognitive disability to get in touch via representinyourself@gmail.com) and will be releasing a report in the coming months.
  • We are becoming more and more aware of the high numbers of criminal litigants forced into self-representation – unfortunately the same legal aid income thresholds exist for the majority of criminal offenses as for family and civil matters. This barrier intersects with a whole host of systemic problems faced by vulnerable people, including racism, high rates of incarceration, homelessness, etc. We hope to expand our research, resource, and advocacy work into the criminal justice system in the future.

These are just a few of the barriers faced by SRLs I’ve learned about during my time at NSRLP. Many people experience more than one barrier; often they pile up and exacerbate one other. We hear daily from SRLs (and empathetic justice system insiders) about both old and new barriers.

Why am I still shocked, after nearly 5 years? Shouldn’t I just be resigned by this point? Yet I am continually surprised to discover one more baffling and infuriating barrier to access to justice after another.

I keep being surprised because to my rational, 21st century mind, these additional challenges for those without lawyers seem both unfair and ludicrous. They make so little logical sense, let alone ethical, moral, and compassionate sense. Perhaps I shouldn’t expect compassion from a dispassionate justice system, but surely I should be able to expect an ethical system, at the very least? If law is meant to be logical and ethical, where is the logic and reason in maintaining a complicated system which, frankly, does not benefit the majority of people within it? (litigants are the most obvious victims of our current system, but I can’t believe that the status quo is healthy or good for the majority of lawyers and even judges, who face alarming levels of depression, anxiety, and substance abuse, often on top of systemic racism and sexism.)

These constant shocks have left me thoroughly disillusioned by the realities of Canada’s justice system – and I see that disillusionment mirrored every year in the law students who come to work as research assistants for the NSRLP. They too are shocked by the disparities and callousness of the system, and I know they find it painful to have their bright hopes for a meaningful career in law tarnished by the sad realities so many litigants face.

However: those students are a big part of what gives me hope for the future of law. I find myself constantly inspired by their compassion for SRLs, and their passion to take what they have learned about the system and make change. Our research assistants are driven by a concern for access to justice: yes, they become disillusioned by what they learn, both at NSRLP and in their other law school experiences, but then they turn that disillusionment into determination. Our RAs go on, at NSRLP, at law school, and then in their legal careers, to adjust their thinking, make radical, value-aligned, decisions about where and how they will work, and to speak up on behalf of litigants whenever they get the chance.

I am similarly inspired by the many legal and access to justice professionals who push for change, in ways both big and small. Lawyers and judges who stick their necks out for NSRLP and for SRLs, who make waves, who change their practices and processes, who aren’t afraid to talk to litigants about what they really need, or to speak up about the inequities within the system. Court staff who genuinely care, who go out of their way to provide information to litigants, and who tell us about their desire to do more. System administrators at courts and tribunals who reach out to us because they want to understand the SRL experience and commit to changing their processes and materials to make the system easier and friendlier.

We have a long way to go. The barriers to access to justice I’ve highlighted above are deeply entrenched, and they aren’t going away soon or quickly. And I have no doubt that I will continue to be shocked whenever we uncover a new and disturbing barrier. But we keep shining that light, looking for new ways to listen, and to help, with the collaboration of our students, our friends in the legal profession, and, most importantly, the self-represented litigants who so generously share their voices with us.

Comments

  1. There is another point that is rarely discussed. The paperwork and the court fees; let alone the steps necessary to finally reach trial. Government fees keep going up and up all out of proportion to the actual costs to process. The steps to get to trial keep expanding too.

    As to your points my experience is just the opposite. The SRP take full advantage of their supposed lack of knowledge serve and file nonsense. When that nonsense reaches the motion judge invariably the SRL asks and gets an adjournment. Costs are rarely ordered and when ordered are never paid. I have had many cases where there was not a viable claim nor a defence and my clients have spent thousands to deal with it.

    I was in court once when the case before us had a SRL. The poor opposing counsel said that the matter had now come up at least two dozen times and he SLR was asking and going to get another adjournment. Exactly what happened. Two side to the SRL issue.

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