A Punitive Costs Award Against a SRL – and the Lawyers Who Gloat

A Punitive Costs Award Against a SRL – and the Lawyers Who Gloat

Last week, I received an email from someone working with self-represented litigants drawing my attention to a case reported in Advocates Daily (Dorey v Dorey (2016 ONSC 2746)).

$15,000 awarded against a SRL for “intentionally” driving up costs

This ruling on costs by Madam Justice McGee awards $15,000 of costs against the applicant mother (self-representing) in a child support variation case. The respondent father was represented by counsel, and the judge accepted the argument that the mother had intentionally escalated the dispute, thereby running up his legal costs.

Specifically:

  • She pleaded matters (e.g. equalization) in the temporary motion hearing that can only be argued at trial.
  • Because both the respondent’s motion and the applicant’s responding motion were scheduled to be heard on the same day, under the the practice directions for the Central East Region the applicant was limited to “disclosure-only” requests, a restriction that she did not follow (it is not clear if this was the result of an earlier order, or a consent by the applicant to a request from the respondent to hear both motions on the same day).
  • The disclosure requests made by the SRL were described by the judge as poorly organized.
  • The respondent made an offer to settle (under Rule 18(14)) which the applicant did not accept and made no counter-offer.

Justice McGee acknowledged that “Some of (the mother’s’) issues may yet find solid ground at trial, but they did not belong within a one-hour motion for a temporary order on support.”

The assumption behind each of the complaints against the SRL applicant as they are framed in the judgment is that her behavior was an intentional escalation, aimed at driving up costs on the other side. The award against her is punitive, as if to deter. There is no consideration of the possibility that her actions might be the result of the misapprehension or lack of knowledge of a person representing themselves.

The assumption that the applicant intentionally breached the rules of procedure

Based on our experience over four years of speaking to and hearing from SRLs on a daily basis who are confused by complex court procedures, I would suggest a different and more plausible interpretation of the SRL applicant’s behavior in this case.

  • NSRLP hears constantly from SRLs who are not aware of the difference between a motions hearing and a trial, and prepare for a motion as if for trial – not to intentionally cause chaos or drive up fees, but because they do not understand the procedure. It seems extremely unlikely that the SRL applicant argued equalization – cited as one of the reasons for the judge’s order that she must pay the other side’s costs – as an intentional and deliberately disobedient strategy, and far more likely that she simply did not understand that she could not raise this in a motion.
  • It took several hours of research (by me and two research assistants) to figure out the source of the “disclosure-only” restriction on the SRL applicant’s motion. It seems extremely unlikely that this obscure procedural point was known to and understood by the applicant SRL. But again her behavior was framed as a deliberate and mischievous “ploy” to absorb more court time and run up costs.
  • The complaint about “poor organization” makes me think of the numerous times I have heard from SRLs who are anxious about how to correctly “tab” their “binders”. I had always, until now, found it surprising that so much energy should go into satisfying this requirement. Ms. Dorey’s treatment now suggests that a mistake in this respect can cost a SRL dearly.
  • While I have for years championed the cause of fair and just settlement (both as a mediator and as an educator), it seems manifestly unfair to penalize Ms. Dorey for failing to make a counter-offer here. SRLs are often entirely unaware of offer to settle regimes and their cost consequences (introduced to incentivize lawyers to settle on behalf of their clients). SRLs have little or no assistance in developing or evaluating a realistic settlement offer, and are emotionally poorly equipped to negotiate with what they regard as a stronger opponent.

Justice McGee chooses to use her ruling to deliver a stern message that SRLs “must act in accordance with the rules of the theatre.” (para 15) This would be a perfectly reasonable point of course – if it reflected the actual circumstances of the case, which as a matter of commonsense, appear quite different.

How credible is it to imagine that SRLs are so competent as to be not only masters of the system, but also able to exploit it intentionally in order to cause chaos?

To make matters worse, Justice McGee’s stern admonition to the SRL applicant was then gleefully seized upon by legal counsel.

Distasteful commentary by legal counsel

Amit Dror, who represented the father in Dorey, told Advocate’s Daily:

“…self-represented litigants have to understand there are consequences for their actions… self-represented litigants are increasingly being ordered to pay, and pay big.” (my italics)

This statement rests on the assumption – which there is now copious evidence to contradict – that SRLs are without counsel because they fancy themselves as lawyers, rather than because they cannot afford to pay for legal counsel.

  • It interprets the defiant countenance of some SRLs – who feel under enormous stress and hugely disadvantaged – as evidence that they actually want to be their own lawyers, rather than a response to the stress they are under.
  • It assumes, like the judgment in Dorey, that SRLs are intentionally causing chaos – rather than that their mistakes are the consequence of a complex system, stress, and their unfamiliarity with the minutiae of civil procedure.

Finally, Mr. Dror complains that the other side’s “…documents were full of inflammatory allegations and distortions”. Now this is actually hilarious. I’m sorry, but isn’t that what lawyers are paid to do? So why is it not OK when a SRL does it?

“Free ride is over for self-represented litigants”

Dror’s colleague Gary Joseph used this headline when he published a blog in September which described an Ontario Appeal Court of Appeal decision (Sanzone v Scheter). The tone is derisory and disrespectful.

It is also a curious framing of the judgment. Sanzone v Scheter (2016 ONCA 566) turns out to be a (highly unusual) successful appeal by a SRL against summary judgment, a procedure that NSRLP has shown is used regularly against SRLs by represented parties and has an extraordinary success rate (96%).

However, you would not know this from Mr. Joseph’s blog. The only part of the judgment in Sanzone v Scheter that he chooses to highlight is Justice Brown’s agreement with the respondents that the rules of evidence must be followed – and had not been – by the SRL applicant in relation to the admission of expert evidence. Hence the screamer headline.

When I asked Mr. Joseph for a response to my concerns about the way he presented this case in his blog (Mr. Dror did not respond to a similar request for comment), he told me: “Your focus on those who cannot afford counsel is far too narrow in my view.” Mr Joseph may still believe that a significant number of SRLs are representing themselves because they want to – rather than out of economic necessity, as study after study has now shown.

He goes on to say that we should not “encourage self reps” and instead

“our energies should be devoted to finding ways to make counsel available to those in need.”

I could not agree more. I am wondering what the law firm (MacDonald & Partners) that both Mr. Dror and Mr. Joseph belong to is planning to do about this?

Misdiagnosing the problem – as a campaign of civil disobedience rather than SRL struggles with legal procedure – is only going to escalate the A2J crisis.

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Comments (7)

  • Derek Thompson

    WOW it is the same all over Canada . The Judges ( Ex Lawyers ) are punishing the SRLs they say for procedure errors. Yet when the other parties Lawyers makes errors they overlook their mistakes EVERY TIME !! Even Worse if you bring it up, that they have errors the Judges get mad as if they want to intimidate you ,then they want to punish you more by giving other party elevated costs ?? The Judges are out of control & we need new rules & regulations / duties & punishments against this Judges that are doing this to the SRLs . Perhaps we better start getting ready to picket the Legislative buildings across Canada ?

    October 31, 2016 at 3:54 pm
  • Anne-On Y Mouse

    Wholly unfair. I can say that my opposing party council was guilty of the majority of the same infractions (failing to respond to offers and judges orders) and worse. However when I, as an SRL, brought these issues up and requested remedy, the judge merely acknowledged my issues and ‘let it slide’ or gave the other party extensions to complete what is required (and still hasn’t been).

    SRLs and clients with lawyers are not held to the same standard, in my experience. Every opportunity is taken to make the SRL feel inadequate if exact procedure isn’t meticulously followed, yet lawyers are simply reminded by the judge (and this includes cases I’ve watched and not participated in) to correct the issue.
    Isn’t the judge/court staff supposed to help the SRL with the process while holding the professional to a professional standard? The infractions here are primarily procedural and the SRL should be entitled to the same judicial advice handed to the ‘professionals’ rather than the punitive measures given here.

    A key improvement would be some kind of information pack given to SRLs to advise them of the court procedure in their type of case (called disclosure), the kind of materials lawyers have access to during their training. Lawyers make the majority of their money from knowledge of this process and little else. How, without there being clear documentation of the rules, can one be expected to follow them? The court staff should be able to pull such a document at will if the system is so demonstrably open and clear (so that it can be followed by a reasonable person). Alas it is not, and that is why we need lawyers, it’s not about who is right, or the truth, it’s about who follows the arcane rules and petty formalities; akin to Croquet with the Queen of Hearts in Alice’s Wonderland adventures.

    As an SRL, after learning the process, I was able to achieve in 3 weeks what my $300ph lawyer was unable to accomplish in over 9 months. Dror does nothing for his professions reputation by raking his opponent over the coals at the slightest transgression. This whole story does little but reinforce that the legal system is simply a means to keep people subservient to lawyers and lawmakers.

    The judge who allows this to happen and so keenly punishes the unwillfully ignorant is unjust (SRL has obviously made reasonable attempts to try and understand). Where is the proof that she was intentionally escalating the dispute vs simply misguided? It should be the assumption of the judge that an amateur lawyer would be more likely to make a mistake than to deliberately attempt a risky strategy of escalating the legal issues they already have and can’t afford.

    In addition, how can the SRL, in the hour long motion hearing the ‘offences’ occurred during, manage to rack up $15000 in her opponents fees? This is something that could have been dealt with via a conversation in court – I know because my opponents lawyer was given that ‘right’, perhaps lawyers (esp. those who earn $15,000ph) are afforded extra privileges by judges and prosecutors!

    Certainly seems to pan out that way on the ground in conformance with the general public’s perception is that the legal system is where the rich get what they want and those that can’t afford lawyers don’t (and are punished for not hiring a lawyer.)

    All boils down to one point. If the law is to be understood by a ‘reasonable man’; then it should be expected that ‘reasonable men’ would be able to ‘defend’ themselves and only unreasonable (or uninterested) men would hire someone to ‘hold their hands’. It’s a catch 22, whereby the richest, most unreasonable party wins, because they can afford a member of the club to defend them. The layman, (aka the reasonable man) for whom the legal system is there to resolve disputes, is instead left in the cold, while the club members count their cash.

    October 31, 2016 at 4:02 pm
  • jenny

    I find it distressing that the same practice is put into effect when a lawyer shows up unprepared, example: a motion is drawn up by a lawyer in March, in May the motion is heard, the lawyer has met with and billed the client for consult, obtained materials, says they will put it in affidavit form, and then shoes up the day of the motion telling their client whom has waited for months that they are unprepared, didn’t serve documents and feel that it would be best to adjourn and ask this to the judge at the clients costs, and the judge does nothing about the lawyer’s behaviour, but instead fines the client for court costs, and those of the opposing party.
    There seems to be no difference if the lawyer is unprepared, leaves affidavits in their bag, fails to serve, fails to present materials in a timely manner, and this happened to me with motions and with a factum as well.
    Each time it was my costs, and further delay in being heard.
    Not one judge has ever asked why the lawyer showed up unprepared, why they didn’t deal with this before occupying the court, or be charged for costs himself.
    In this situation the lawyer then makes another date and repeats this performance until I paid amounts I could not afford, and left me in destitution- literally.

    Why are judges so reluctant to acknowledge the poor misconduct of the lawyer, or to address this behaviour with the client whom has no clue until the day of court that there lawyer is milking them, wasting the courts time, wasting the opposing parties time, and driving up my costs?

    Switching to being an self represented litigant was caused by failure to have adequate counsel whom performed in a most concerning manner- yet to this day has never been held accountable.

    This negative performance of the lawyer also reflected poorly on the litigant client he represented because only your lawyer is allowed to speak, especially when your lawyer screws up.

    I couldn’t get another lawyer to fix my case as I could not find another one that would allow installments of $2000 at a time.
    When I finally could get legal aid in Ontario over 10 lawyers refused to take my case because it was so poorly mismanaged. I had no choice but to take the lawyer that mishandled my materials, refused to put in 100% effort, and repeatedly told me “I’m working on it” “I’m busy with other cases I will eventually get to yours” and the classic, ” we will win the next motion” which we never did, in fact I lost everything.

    When I was a self represented litigant as I am now, I had 4 judges rule against me, but not acknowledge or deal with my opposing party in the same manner who was represented.
    When I tried to acknowledge this the judge became hostile, and started namecalling towards me.

    An example of this is I applied for a restraining order from my former partner who previously plead guilty to death threats and assault against me while I held our son; his court ordered counselling was never completed, his behaviours shifted from physical violence to emotional, verbal and psychological abuse- including stalking. My former partners counsel applied for a counter restraining order against me, and asked for 1.5 kilometers instead of the 100m I asked for; and failed to tell the court he bought a home 1 kilometer away from my residence.
    The judge dismissed this part of the motions, and did nothing about my former partners deception (he moved in 12 days later) nor the misrepresentation of his counsel giving the facts in his extremely false ” summary’ he was allowed to proceed with as opening statements to the court, and I wasn’t told when I was allowed to speak, nor when allowed to contest – the day in court cost me $750.00.

    The proceeding before that my lawyer didn’t show up, so when the judge saw me again I felt like his hostility was very evident.

    These examples I question the pro-tag action group, the Ministry of the Attorney General, and the Upper Law Society because when you have a lawyer that fails to represent you adequately it almost seems that it is even worse than being a self represented litigant.

    Duty counsel is not always available, and not all duty counsel have experience in all types of matters. Overall, the duty counsel have been wonderful, and even came in to assist because my former partners lawyer insults me inside and outside of the court room, and with just having a lawyer present he stopped the rude behaviour.

    When my former partners counsel would laugh outside the court room about the mistakes my lawyer made it was very demoralizing, when I represented myself I could hear him making fun of me to his client and his lawyer friends, and its very hard to cope with, but there seems to be no limit to how badly lawyers can behave, and with full acceptance of the family courts.

    You think that when a lawyer fails to represent their client properly that the judge might say some reprimand, or acknowledge that the lawyer should not have held court that day, and shouldn’t milk their client for adjournments- but judges don’t care about equal access to justice.
    I had one female judge tell me they don’t have time to read materials submitted, she read stuff quickly and sided with my former partner.
    The same judge did not read all materials at another motion and did the same behaviour stating that the courts were backed up, and that time I was represented but my lawyer said nothing, and didn’t oppose that our motion was dealt with rashly and without dealing with all the materials submitted and needing to be submitted for a future date.

    Two male judges when I represented myself, noted concern over opposing counsels attitude, negative behaviour and demeanour. These two judges were also very concerned that opposing counsel wanted to keep me from speaking, keep me from submitting any documents the judges asked for, keep us from being heard on another date, and specifically instructed him on my rights, and his conduct.

    These two judges over the tiresome course of 6 years in court were the only two that dealt with me fairly while my former partner had counsel and I did not.

    The other male judge that dealt with both my former partner and I (whom were self represented) was taken aback by the fathers behaviour, attitude; and lack of consideration for me, and our child.

    We had one female judge that helped both father and I while we were both self-represented: she was brutally honest, informative, and brilliant. To this day Honourable Madame Justice Marshman is the only Judge that forced father and I to go on a recess and work things out- which we did- and then he reneged and 6 years of court later we are way worse off then when we started, but she was never made aware of this deception.

    In a smaller city you have a worse time being a self represented litigant as when the head of court doesn’t like you- nobody is going to go against them, rock the boat, or explain to you that you should just give up trying because you aren’t going to get any justice – instead you get a time in a courtroom where you get an “opportunity” for justice in the same way that buying a lottery ticket gives you an “opportunity” to win…

    October 31, 2016 at 4:33 pm
  • wael badawy

    This is very sad. Technically is wrong descision.
    There is nothing in the Common Law defines what is good for an application and what is good for a Trial.
    These Judges hate to see their fellow lawyers loose.
    It is clear that the system is only working and working well for the rich who can hire lawyer.
    It is the court and the judge obligation to issue directions and notice to the professionals and the public on these issues.
    This Judge clearly erred the law and used language to paint the litigant to benifit the counsel. What is the definition of “poorly” the disclosure is a set of document that are attached as exhibits in a sequence of an affidvit. Following the same sequence of the NTR.
    The question is if the disclosure is complete or NOT. Poorly is a new term.
    This litigant shall appeal and file an stay of enforcement on the order.
    I am willing to help her if she needs help.

    October 31, 2016 at 4:36 pm
  • Bundy Szabo

    lost in all this is that this is a FAMILY law case, where
    a) there is no real choice – only a need to fight for your children, NOT for yourself
    b) a judge with all sorts of resources is critical of a single mother with very limited resources
    It is so easy to judge, to criticize
    it is so easy to NOT understand – how desperate some cases are

    October 31, 2016 at 4:41 pm
  • Colin

    Any lawyer who incurs costs in response to extraneous fillings by the other side that may simply be disregarded, whether filed by an SRL or represented, should be disciplined and, ideally, disbarred for his/her own abuse of process.

    The relevant terminology includes bad faith dealing and sharp practice.

    Evidently, for such make-work and gouging, Amit Dror is a disgrace to the profession and yet another exemplar of the principle that the expression honest lawyer is far too often a contradiction in terms.

    The same goes for Madam Justice McGee. Heather Honey is toxic, poisoned with ragwort. She should be relived of her duties so she can go back to milking cows.

    A competent judge, evident not including Heather Baby, should use a modicum of common sense and assume a measure of inquisitorial management practice when it’s clear that one side or the other is going off the rails unnecessarily complicated bureaucratic rules of procedure.

    Judges themselves need to heed Principle 1 of the Rules of Civil Procedure requiring the most expeditious and least expensive means to the end.

    October 31, 2016 at 4:51 pm
  • wael badawy

    The system allows lawyer to paint SRL with none-sence and irrlevant stuff in 20 mins applications BUT The system does not allow SRL who can not afford lawyers to disclose their views.
    This judgement needs to be appealed to fix the system.
    If a mother with kids can not fight for the kids right, who will fight for the kids right
    IT IS SAD SAD SAD SAD SAD SAD SAD ….

    October 31, 2016 at 4:53 pm

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