A short history lesson
The courts were originally created to protect citizens from the overreach of the State. Over time, they evolved into a forum for the contestation of claims between individuals, and eventually, corporations and institutions.
Independent of the sovereign – and later the legislature – the purpose of the courts is to offer deliberated conflict resolution by neutral experts (judges), whose wisdom and learning in law is trusted by both sides to come up with a fair outcome.
For centuries, court processes have assumed the involvement of expert agents who make the argument on behalf of the client. Representation was originally undertaken as a “gentleman’s calling” by wealthy individuals who could afford a “higher calling”. The earliest lawyers did not expect payment. This seems like a quaint idea today, when legal practice is a livelihood, and most sectors preoccupied with profit-making.
Without the involvement of representatives, how do individuals adequately protect themselves from the overreach of the State? And how are disputes fairly and equitably resolved where one side has expert representation and the other has none?
If we cannot answer these questions with a confident affirmation of the traditional role of judges and the courts to ensure protection and fairness, we have an Access to Justice crisis.
Looking back at 2018
As 2018 draws to a close, a number of themes are worth noting in the continuing saga of self-representation in Canada.
Many of those bringing their cases to court alone (a majority in family courts, a third or more in civil courts) do not feel protected or fairly treated. Despite the development of more online resources (the one bright spot noted by delegates at our recent stakeholder dialogue), most SRLs describe their experience as miserable and frustrating.
In the courts
- There is growing evidence (surprise!) that SRL outcomes are much worse than those for litigants represented by lawyers (see for example Loom Analytics, now Court Analytics where outcomes are broken down according to representation, among other factors).
- The promise of Pintea v Johns (last year’s Supreme Court of Canada decision that held that protecting due process rights of SRLs requires they have a minimal understanding of the process) has been clarified and expanded in a handful of decisions (for example Moore v Apollo Health and Beauty Care), but diluted in others. Courts in Alberta are busy coming up with exceptions (the “sophisticated SRL”; the SRL who does not deserve due process protections because of earlier behavior deemed abusive). SRLs are routinely accused of exploiting and “stage managing” their position, and trying to obtain “special favours”.
- “Vexatiousness”: a weapon of choice for some opposing counsel and judges. In some jurisdictions there is growing case law on designating “vexatious litigants” ( watch for our upcoming report from the SRL Case Law Database in the New Year, and in the meantime, read Jonnette Watson-Hamilton’s excellent blog here). Short of formal designation, there is increasing use of an informal label of “vexatiousness” to justify higher costs and/or adjudicative outcomes focused on punishing “bad behavior”, rather than adjudicating over merit.
- Bright spots? Shout out to the BC Provincial Court rule permitting McKenzie Friends (how about some imitators?), simplified Notice of Appeal forms in Newfoundland and Labrador, and efforts by remarkable individual judges to provide order templates to SRLs.
Unfortunately, many SRLs now wonder how they might be protected from unfairness in the courts, rather than be protected by the courts.
In the legal profession
- Two years ago, I wrote an end-of-year blog titled “2017 could be the Year of the Paralegal”. In my usual overly-optimistic fashion, I was getting ahead of myself. In 2018 we have seen some steps taken toward licensing paralegals to offer some family legal services in Ontario, but an actual outcome to the 2017 Bonkalo Report that recommended this reform lies buried in a Law Society of Ontario committee.
- In British Columbia, the Law Society membership just voted down a similar proposal even as the Attorney-General put framework legislation in place to permit paralegal licensing. Is expansion of the profession into the legal professions (plural! lawyers plus paralegals) as the new BC legislation puts it, inevitable? Perhaps, but how much longer are the tens of thousands of Canadians who could afford to use paralegal services, but not retain a family lawyer (I know of no math that makes services at $150 an hour as costly as those that are billed at $500 an hour), expected to wait for any help?
- There are some bright spots. More and more lawyers have joined our National Directory of Professionals Assisting SRLs, and unbundling is ever-so-slowly (hearing a theme here?) emerging from the shadows as a respectable way to serve clients. We know some new calls to the Bar who are setting up their own shops offering legal coaching (from their laptops, not a fancy office), and they report that they’re making a good living, and doing deeply satisfying work.
In the law schools
- NSRLP hears increasingly from law students across Canada who are eager to get involved in our work. On the initiative of students, “SRL Awareness Day” expanded from Ontario into BC law schools this year, as part of BC A2J Week. And Windsor Law offered a credit course in SRL Coaching (with instructor Georgette Makhoul) for the second year in a row.
- So much for student interest, but what about the faculty? When I offered all the materials for my new Clients class, which includes a section on working with SRLs, to anyone who was interested in using them, I had just 3 takers (from Australia, New Zealand and Harvard), and none from Canada. When NSRLP offered a faculty seminar recently at Windsor Law on the SRL phenomenon and the work of the NSRLP, attendance was very disappointing, as it was at a similar event two years earlier. There is, unfortunately, little course coverage of SRL-related issues either here or in many other schools.
A wish list for Santa
Are we daunted? No we are not.
But it does feel like the time to politely call out some of this apathy and even hostility toward learning about, and responding effectively to, the SRL phenomenon in the courts, in the legal profession, and in the law schools.
So… to keep our spirits up, we have the following wish list for Santa:
- Some strong provincial Court of Appeal and even Supreme Court of Canada decisions in 2019 that will clarify and strengthen due process rights for SRLs (for example in relation to judicial assistance, vexatiousness, and costs awards). Case in point: NSRLP is intervening in an Ontario Court of Appeal case in 2019 that will examine the fairness of using summary judgment motions to knock out SRLs.
- Make 2019 the Year of the Paralegal! (Better late than never!) Two critical first steps are the licensing of paralegals to undertake some family legal services in Ontario, and BC. If the regulators continue to resist or stall, let’s see some bold action by Attorneys-General.
- See every law school in Canada introduce mandatory programming on the background of the SRL phenomenon and what it means for the lawyers of the future – either as a stand-alone course or as part of any existing credit class.
Because it is the responsibility of the courts, the legal profession and the law schools to figure out how, without the involvement of legal representatives, Canadians adequately protect themselves from the overreach of the State, and have access to a process to resolve their disputes with one another fairly and equitably.
And just one more thing please Santa…
- NSRLP badly needs funding to continue to meet the ever-growing demand for SRL-related research and resource development, and for advocacy to raise awareness of the A2J crisis, allowing us to focus our time and energy on this work, rather than on writing innumerable funding applications. (And if you’re interested in donating to NSRLP, you can do so here. Any help you can afford would be greatly appreciated!)
Happy holidays everyone!
Dear Julie,
What a wonderful summary of the “facts” to the reality of what is happening with SRL’S.
I just finished watching a 7 part series on HBO/ CRAVE TV called John Adams one of the founding fathers and 2nd President of the USA that shaped the “independence” of America as a republic. I highly recommend it for all that is interested in law.
John Adams was a lawyer and a famous historical event was when he unpopularly defended British soldiers from being wrongly accused of deliberately firing their muskets into a crowd and killing many revolutionaries back in the 1700’s. John Adams won that case and sacrificed his law practice by doing so. This forced him to find another vocation, so he became the vice president to George Washington then eventually the 2nd President and 1st President to occupy the newly built White House.
One phrase struck me as something that is applicable today, but not always practiced,here it is;
“Facts are stubborn things and whatever may be our wishes, our inclinations, or the dictates of our passions, they cannot alter the state of facts and evidence”
It got me to thinking that if I were a judge rather than a SRL would I examine my past “discretionary” decisions, “opinions” and judgments And ask myself, did I sincerely take all the “facts” and “evidence” into consideration or were my decisions tainted with my “wishes” “inclinations” or “passions” or “the dictates” that altered those “facts of evidence” for any other reason than finding the truth and administering justice?
Have a merry Christmas and a Happy New Year.
I just filed a constitutional question as a self represented litigant to the Health Professions Review Board in British Columbia over the provincial governments abuse of power in mandating the nurses regulatory body (RNABC) to become a college in 2005. In doings so the government balanced it’s health care budget by being able to control nurses wages and keep a predominately female occupation oppressed. Many other government tribunals went along with this plan, including the BCLRB, who have a zero success rate for union members complaining about unfair treatment by unions. So a nurse, by law, is a public servant who cannot strike, and is legally required to work in a union to work as a nurse, and has no recourse at all if treated unfairly. The BCNU is the largest healthcare union with a monopoly on healthe are employers. And the BCNU is the governments biggest ally, along with WorkSafeBC, in oppressing nurses to manage costs. Watch for this case in 2019 as it goes to the Supreme Court of Canada.
A compromising solution—allow paralegals who work in lawyers’ office to have the jurisdiction you want them to have, but not independently-working paralegals.
Compare: in the family doctor’s office, a “physician assistant” has replaced the medical student. So now, the first part of my yearly medical check-up is conducted by a young lady who performs, among other preliminary advances, what I used to call, “the medical student’s handshake,” i.e., with a gloved hand and forefinger she says “hello” to my prostate gland. She types all the information obtained into a computer. Then the doctor comes in, reads the notes, checks whatever the notes and my medical history require checking, adds his notes, answers my questions, and is out the door in at most, 15-20 minutes, and on to the next of his 5 examining rooms–an assembly line, mass production method of producing medical services and fees. See, wouldn’t the legal profession be better off serving a comparable program of socialized law? There would be no, shortage of clients, or A2J problem, or unpaid fees, or bad debt collection problems.
And the NSRLP could move on to providing more sophisticated help to the legal profession, the justice system, and the residents of Canada, by becoming a better lawyer-referral service than any law society could ever be capable of providing, including negotiating “volume discounts” with lawyers who will service lower income clients at lower cost and fees, in exchange for large numbers of referrals provided by the NSRLP.
That’s somewhat similar to what the big commercial producers of legal services (like LegalZoom, LegalX, etc.) do in the U.S. with the volume-discount strategy. They have lawyers: (1) perform one “last legal check” of the product or service before delivering it to the customer; and, (2) they advertise that customers can ask a lawyer questions and get free answers. U.S. lawyers (attorneys) provide such services on a volume-discount basis and in the hope of recruiting clients. Such use of lawyers in those minor ways not only greatly increases the commercial producers’ marketing power and success, but also serves as a defense against accusations by State law societies that they are guilty of “the unauthorized practice of law” and vulnerable to “UPL prosecutions.” As a result, the U.S. commercial producers are now very large and rapidly expanding, and the U.S. general practitioner is rapidly disappearing. Those commercial producers have started the same process here in Canada.
So, Canada’s legal profession, particularly its general practitioners, very much need a comparable defensive strategy against the commercial producers, and against the great many small commercial start-ups offering the retail market various forms of automated legal services. The NSRLP could provide that defense.
I would like to know if anyone else had the media only tell the lawyer side after being ruled vexatious {to get revenge}even lawyer magazine only did an interview with the defense lawyers and spread the story canada wide,to do such a thing like that proves criminal conspiracyAlso did the lawyers claim you had no claim but never offered evidence/case law/or arguments to prove you had no claim,and the only argument was from the judges who represented the defendants?
I would like to comment on the link of the “sophisticated SRL”;
The Supreme Court of Canada’s exact endorsement in Pintea v Johns SCC 37109 was:
“[4] We would add that we endorse the Statement of Principles on Self-represented Litigants and Accused Persons (2006) (online) established by the Canadian Judicial Council”. [end of sentence].
Additionally, the actual “Statement of Principles” state: “PROMOTING RIGHTS OF ACCESS” “Judges, the courts and other participants in the justice system have a responsibility to promote opportunities for ALL PERSONS to understand and meaningfully present their case, regardless of representation”.
Be it noted that there is nothing in the SCC endorsement in Pintea v Johns No. 37109 that quantifies “sophisticated” “articulate”, and “well-informed” litigants, NEED NOT APPLY?
My point is that even “sophisticated” Lawyers and Justices of the Courts require guidance on procedural matters and errors of law and facts FREQUENTLY. Proving that none of us are infallible! Confirmation of this is brought to mind in the “colossal error” in the Travis Vader murder trial where ABQB Mr Denny Thomas admits that he was wrong to use Section 230 of the Criminal Code to convict Travis Vader on two counts of second-degree murder! This error in not knowing the proper section of the Code forced Mr Justice Thomas to convict Travis Vader of the lesser offence of manslaughter instead!
No disrespect to Mr Justice Thomas but my point is that no matter how “sophisticated” and “well informed” we all are, mistakes and assistance is still required at all levels in the legal system as it is forever changing, and massively complex even for Judges.
The conclusion that due to the fact that a Self Represented Litigant [SRL] “familiarized” “studied” or boned up on the law and procedures is deemed “sophisticated” “articulate” and “well-informed”.Is somehow not entitled to the available assistance expressed in the CJC “Statement of Principles” from the bench. Is nothing more than a circumvention by the particular justice on the bench to fulfil her wishes and “sidestep” legal precedent and/or SCC endorsement or perhaps the very doctrine of “Stare Decisis”. Which is the cornerstone of the very fabric that makes up the “Rule of Law” available to all individuals?