Procedural resources are vital for the prosecution of cases before courts and tribunals. These resources range from case-relevant legislation – including the legislation establishing the court or tribunal – to the rules of procedure and decided cases of the court or tribunal. They ground arguments, and guide and assist lawyers in making compelling cases. Claims can fail or succeed depending on the procedural resources available and accessible to litigants. Fairness dictates that these procedural resources be readily available to all litigants who need them, not just to lawyers.
Litigants represented by lawyers have little-to-no worries regarding these procedural tools. Their lawyers are responsible for locating and competently deploying them when prosecuting their cases. However, the self-represented litigant’s (SRL’s) situation is radically different. SRLs are their own lawyers, and they must source necessary procedural resources by themselves without the benefit of having legal training. This disparity regarding access to resources can have damning consequences for a judicial system that professes and aspires to fairness (and perhaps relies on issues of procedural fairness to ensure substantive fairness) in its dealings with all, regardless of circumstance and station in life.
What procedural resources are currently available to SRLs in prosecuting their cases before different courts and tribunals? How far do these resources go in assisting SRLs with their litigation? Are there any measures that stakeholders can take to expand access to these procedural resources? In a century where interconnectivity and digital access enables the dissemination and distribution of information at the speed of light, ought these resources not be made universally available online for everyone?
In this article, we examine the state of procedural resources currently available for SRLs online, and we make a case for expanding access and usability of these resources by creating comprehensive, open-access, easy-to-use annotations for procedural resources.
Current online procedural resources for SRLs
Two instances arising from our work at the National Self-Represented Litigants Project (NSRLP) can demonstrate the current state of procedural resources available online. In January 2022, an SRL reached out to us looking to get assistance on judicial procedure. The court had ruled against the SRL, and they elected to appeal the decision.
However, they could not afford to retain the services of a lawyer for their appeal. The two options available to them were to either appeal as an SRL or to let go of their right to appeal. They filed an appeal as an SRL. They reached out to us because they needed help finding template memoranda that might guide them regarding form, structure, and language when drafting their own motion for leave to appeal.
In February 2022, another SRL reached out to us seeking assistance with procedural issues. This SRL had applied to a human rights tribunal to remedy an incident of discrimination. In furtherance of their application, they requested that the tribunal investigate certain events culminating in the discrimination. The tribunal refused. The Tribunal’s refusal aggrieved this SRL, and they sought to understand the factors that lead to success or failure for such applications. They wanted assistance with judicial decisions that could guide them in this regard.
A search through the relevant websites of human rights tribunals and courts – including the appellate courts – reveals that some procedural resources are available online. For instance, the Ontario Human Rights Code and the Rules of Procedure for the Human Rights Tribunal of Ontario are available on the relevant bodies’ websites. The Tribunal’s decisions are also available on CanLII. Appellate courts such as the Supreme Court of Canada also publish their decisions online.
Furthermore, most Canadian courts and tribunals now provide easy-to-use annotations of their procedural rules online. Non-governmental stakeholders such as PLEA (the Public Legal Education Association of Saskatchewan) have created free legal information resources to assist litigants. And of course, NSRLP has a comprehensive list of National and Provincial Resources for SRLs on our website, among many other resources.
However, the resources and information available on most court websites are helpful, but usually very generic. Assuming the SRL in the first instance above is appealing to the Supreme Court of Canada (SCC), the SRL will need to seek and obtain the permission of the SCC before they can proceed with their appeal. This permission, known as leave to appeal, is sought through an application to the SCC made in the form of a leave motion. The SCC website currently has general information and resources that can assist SRLs in seeking the leave to appeal that they need. However, the template motion for leave to appeal provided on the SSC website only contains headings and succinct descriptions of what different parts of the motion paper should contain. The form and guide provide generic descriptions of the substantial content of these forms with minimal guidance on how to locate and deploy necessary substantive content in applications to the SCC.
Research has shown that without guidance on the substantive content needed, the SRL’s motion is more likely to fail than succeed. Donald J. Netolitzky, Complex Litigant Management Counsel for the Alberta Court of Queen’s Bench, conducted a quantitative investigation on all motions for leave to appeal filed by SRLs to the SCC in 2017. Netolitzky’s inquiry wanted to understand why, “SRL Supreme Court leave applications are dismissed at very high frequency.” His investigation revealed that, “the failure of SRLs in Supreme Court proceedings results from the substance of their filings.” In other words, the SRLs have generic forms and guidance, but they do not have the tools to assist them in using these forms effectively and successfully. There is a great need to provide in-depth guidance on how to use these forms so that SRLs can have a fighting chance at the SCC. Without this necessary work, a disproportionate number of SRL motions for leave to appeal to the SCC will continue to fail.
It is important to clarify that the depth of online access to adequate procedural resources varies depending on individual courts and tribunals. For instance, Tribunals Ontario’s website provides perhaps the closest existing example of a comprehensive online annotation of procedural resources. The website contains knowledge-based procedural information regarding how to navigate the judicial process of 13 adjudicative tribunals in Ontario. For example, SRLs can get invaluable procedural guidance from this guide on the website when filing their applications to the Human Rights Tribunal. The guide contains links to procedural resources, including the code, the rules of procedure, forms, and a link to decided tribunal cases available on CanLII.
However, SRLs still have the onerous task of sorting through decided cases to pick out the ones relevant to the tribunal’s rules of procedure and code. Although tribunal decisions are available online through CanLII, there is currently no free, comprehensive compendium or search engine that sorts judicial decisions according to legal issues for SRLs’ ease of reference. SRLs looking for topic-specific decisions need to understand the reasoning and practical application of the law by any of these tribunals, and therefore would have to sort through myriads of rule books and judicial decisions on CanLII to locate the relevant ones. For instance, an SRL might need past tribunal decisions to quickly and effectively decide on the viability of their application before approaching the tribunal. A lot of invaluable judicial time might be saved when SRLs are able to consult past judicial decisions, arranged according to specific legal issues.
Sorting case law is stock in trade for lawyers and allied practitioners, but it can be a very daunting and nerve-wracking exercise for anyone with little to no background in law. Judicial reasoning is systematic and methodical. Anyone who is not equipped with the necessary skills for sifting through these cases might read large volumes of cases without garnering much useful help. It is unfair to leave SRLs to navigate the maze of judicial decisions to find relevant ones without any form of adequate assistance or guidance. This creates a great disparity between the substance of the filings of SRLs and lawyers. Although the field can never be completely even between SRLs and lawyers, working toward levelling the playing field by ensuring the availability of effective and adequate procedural tools for SRLs is only fair.
Access to justice is not limited to making physical courtrooms open and accessible to the public. It also includes ensuring that SRLs can easily procure, understand, and utilise the rules in the courts, tribunals, administrative agencies, or any other institution empowered to decide on people’s legal issues. The non-availability or inadequacy of these resources has far-reaching effect on the public’s capacity to represent themselves effectively before adjudicating bodies. This is where stakeholders in the justice sector have work to do.
Standing in the gap for SRLs through the creation of annotation working groups
The two SRLs described above have already done much of the work. They have read the procedural rules for their respective adjudicating bodies, and they have gleaned the procedural resources – case law and memoranda – required to proceed with their cases. But are these layers of resources freely available in easy-to-use formats for those without legal training? The answer is no.
The research needs of the SRL in the second instance – assuming the applicable tribunal is the human rights tribunal of Ontario – might very quickly be obtained from the 2022 Annotated Ontario Human Rights Code; Thomson Reuters charges $258 for this book at the time of writing. The sample memoranda needed by the SRL looking to appeal their case in the first instance might be obtained from Westlaw; Westlaw’s services are behind a paywall requiring a substantial subscription to gain access, only truly affordable by institutions such as law firms and schools.
This state of play creates an impediment. It limits access to justice and creates a situation where SRLs cannot provide adequate representation for themselves due to a lack of access to necessary procedural resources. Research has confirmed that the primary motivation for self-representation is a lack of financial resources. Adding a lack of procedural resources to this mix adds to the SRL’s already-heavy burden.
More work is needed to develop free, comprehensive online resources that enable effective self-representation. One measure that might help meet this challenge and further improve access to justice would be the creation of working groups within provincial Attorney General offices that are responsible for building annotated resources.
These working groups would be tasked with annotating legislation, rules of procedure, and codes of conduct that are relevant to their respective adjudicative bodies. Each section, article, or procedural rule would be annotated with appropriate decisions of the relevant courts or tribunals, with links to free and easy-to-use reports of those decisions. Rule-specific and appropriate pointers could be provided for each section, article, or rule of procedure with apposite cases rather than a generic link to the general repository of all the decided cases by a court or tribunal. These easy-to-use annotations of procedural rules could provide pointed and invaluable assistance to the public in navigating the judicial process.
Such working groups should have representation from both the technical and end-user spectrum. In terms of technical contributions, working groups could include a mix of members of the AG’s office, legal practitioners practicing in the relevant areas, and legal academics. The end-user spectrum ought to include SRLs. Those with the necessary technical expertise could create the annotations based on their knowledge of the practice and procedure of the relevant courts and tribunals. However, we know that the language, diction, and writing of lawyers and legal academics can be very difficult for non-lawyers to navigate; the task of the end-users would be to assist the experts in ensuring that all materials are easy to understand and operationalize for SRLs.
These working groups would also be tasked with updating the annotated legislation, codes, and rules as needed. Just as universities allow free access to the completed research output of their graduates, the outputs of these annotation working groups could be made available online at no cost to the public.
A responsibility to the public
Deepening access to justice for SRLs requires a lifelong, system-wide dedication on the part of the government to standing in the gap, and there is no manual or one-size-fits-all approach; we believe the process of deepening and expanding access to justice must remain re-iterative and continuous. We acknowledge that creating working groups focused on creating annotated resources would require a significant capital investment. But one could argue that a great deal of justice system time and money is currently wasted as self-represented litigants stumble along in the system with very little support or insight into the application of procedural rules and practices. Equally important is the consideration that whatever the financial expenditures might be, such costs are secondary to the waves of injustice that continue to be visited upon SRLs when large, systemic access to justice projects such as these are not seriously considered.
LLM student at Windsor Law, and NSRLP Research Assistant