Today’s blog post is written by Aaron Huizinga, self-represented litigant, advocate on issues of Access to Justice, and devoted father.
I am a self-represented person (not out of choice, but out of necessity) and I have represented myself at the tribunal level, and at both family and civil courts. I have appeared in Divisional Court, and the Court of Appeal.
In my experience, we have a customer service issue in our justice system in Ontario, and likely across the country.
Going to the Service Counter
Imagine purchasing a TV, or a computer, or a car, or a truck, and then discovering a concern, or problem. But when you approach the retailer or manufacturer you purchased from, instead of providing advice, or fixing the problem, you are told to go somewhere else.
For instance: you buy a car from one of the Big 3 auto companies, and in response to a problem with the vehicle, the service department tells you they aren’t able to assist you, or provide you with advice.
This is the way our justice system works for self-represented people.
When self-represented people have questions (and remember that Dr. Macfarlane’s 2013 study showed that approximately half of all self-represented people do not initiate their lawsuit or proceedings: they are simply trying to respond) they go, reasonably enough, to the frontline justice system workers – the court staff.
The court is a publicly funded system that is paid for by our taxes, and is supposed to work in the interests of the public. But we are told to “go hire a lawyer”, as court staff are not able to provide “legal advice”.
The “Information vs. Advice” Quagmire
Why can’t our court staff, who are knowledgeable in legal matters, as they work in the justice system each day, provide practical legal information about procedure, and directions to reliable sources of information, with the caveat that a self-represented litigant may also want to seek further legal advice or conduct their own legal research? Most people understand that, unlike legal information, legal advice can only be provided by a lawyer.
But many court staff feel constrained by the prohibition on giving “legal advice”. They are not trained to understand the real differences between “legal information” and “legal advice”. So they default to saying “I can’t help, that might be legal advice”. This came up over and over in Dr. Macfarlane’s 2013 study.
Why do we have this problem? Our justice system is governed by a monopoly – lawyers – who are, of course, in a profit-making profession. This private entity controls and determines who can and can’t provide legal advice. Not our elected representatives, not our court staff. Lawyers – who have a vested interest in monopolizing our justice system.
Basic information regarding procedure and rules should be provided to all who need it by court staff. Do we not all pay for the court system with our tax dollars?
The control and oversight over who provides legal advice needs to be governed by a public body, not provincial law societies, which are in reality lobby groups for lawyers’ interests.
We need to change our justice system into one that works for the people of this province, and the nation. We need a justice system that provides answers to basic questions, such as which court form to use, and access to knowledgeable, affordable sources of help on more difficult problems. Basic customer service. This is what modern-day consumers expect.
Often the problem is also that Court staff have varying opinions on how to proceed in any particular instance. For example, at one appellate court, I tried to file a Motion and each day for 5 days, I was told it could not be filed as it was because the staff member wanted something different…a word, a format, something that the person the previous day had demanded. Finally, I never did get it filed at all.
I’ve had situations where I am told to file my materials at my region’s Courthouse. I do so in lots of time, only to get a call that’s it filed in the wrong courthouse and must go to Toronto. By the time it gets to Toronto it is one day late. But the Toronto Court simply can’t just do the right thing and correct the file number. Instead I am put through 5 motions to get an extension of one day, and then denied the extension of one day because the Judge did not see my reasons for Appeal (I had not discussed them since the motion was ONLY about getting an extension of time that should not have been required had the Court of Appeal simply corrected the file number that had been provided erroneously by the Ottawa Court).
I understand from 2 registrars now that they have been told to ‘discourage’ self-litigants. Indeed, a year ago, I was deliberately sent to the wrong Court by the Court Registrar and when I returned asking her why she would deliberately send me to the wrong courthouse, I was told point blank “that’s what you get for not hiring a lawyer”.
I, too, encountered on two occasions a Deputy Registrar, who upon perusing my appeal documents, told me the spacing of my factum should have been 2 rather than 1.5 between lines because some appellate judges have more eyesight. Also, the margins were too wide or that my toner cartridge was spewing out light printout using the energy savings mode.
Then, there was the nitpicking that instead of 3-ring binders, I should have used cirlox spiral binding.
I learned to file my documents at least one week prior to the closing date to allow time to deal with Deputy Registrar “required” revisions.
I agree. I’ve left the courthouse so many times in a pile of tears because of the treatment by the court staff. Some are wonderful and helpful, but there are so many that are rude, condescending and just plain vicious that it over shadows the kind people. I’ve had many of the same experiences you mention. I have a disability and I had to discuss it with the person who handles the accommodations in a public waiting room with no privacy! I’ve been told many times, “this is what you get for not hiring a lawyer”. Does anyone think that I wouldn’t want a legal representative to represent me if I had that kind of money! It’s pitiful how we are dealt with…yes, dealt with.
I’m actually surprised that what I experienced years ago at the hands of courthouse staff is still going on. In fact it sounds worse.
How can we make headway as individuals with no collective voice? I’ve been investing my time challenging the attitudes and the conduct at the top: i.e. the senior judiciary. I recommend that some of this blog’s participants consider reading the work of fiction by Canada’s former Chief Justice. I’ve never read anything of that genre before, but I’m pursuing the question of whether she needed what is called a “private investigators” license to accept the engagement she recently did from the B.C. legislature. It occurred to me that among the characters in her book there might be a PI. And there is. He – Richard Beauvais – is introduced on page 80. In the course of skimming the book I spotted what I think is evidence of certain biases. Her protagonist, at page 121, describes the jury selection process, which is an adversarial one. She lists those selected by her and her co-counsel (acting for the very wealthy person accused of murdering his spouse) as “a school librarian (formerly married to a wealthy businessman), a commerce professor, a portrait artist with a shop in Granville Island, a real estate executive, an accountant, and a magazine publisher”. She then says, “The prosecution ends up with a mill worker, a cab driver, a nurse, a turbaned grocer, and the ubiquitous dockworker.” That’s eleven jurors, but she then mentions separately one more who is chosen as the foreman.
Well I’ve served on a jury. I didn’t perceive us in that fashion. Is this excusable because it’s a work of fiction? I don’t think so.
Great perspective and totally accurate which reinforces the “members only club” assessed by Rob Harvie. Corruption and collusion is clearly rampant across Canada in our courts. “Judicial Independence” has and is being used as a gatekeeping blocking implement for stopping and furthering SRL cases.
There is no doubt that SRL’S are looked down upon by court staff as much as they are from lawyers and judges. I am speaking from experience garnered over a 12 year disgusting and blatant ordeal.
it really wouldn’t matter if court staff help with procedure and rules, They lie, I had a court staffer at the supreme court level, transfer my file out to another district, he saw me almost daily leading up to my set and booked examination of evidence, and said nothing, the case was dismissed with costs because I was not there, know where I was?? in the first court, waiting for the parties to show up for the examination I had booked, and served notice for, When I tried to appeal to the court of appeal,, I filed three times,, by fax, I had a perfectly fine, fax confirmation sheet that everything went in,,, three of them, The clerk at the appeal court told me over and over,, no,, no file here, And refused to give me a file number, I could not serve my appeal,, as I had no file and so no appeal, Thinking that they are just following “the rules” by not telling you procedure is not true, They lie about it to hide how many ways they can HELP TO GET RID OF YOU,
Very true. And more.
It shall be a balance between the service to lawyers and SRL. As long lawyers are seen as extension of the court and large firms are future employers to clerks and Justices; we can not dream about customer service. There is a no compete clause in all business that you can not work for your employer customers that shall govern all justice employees, associates and affiliates and that they should not be employees.
This is a real problem with our legal system. One that I face often when assisting my clients.
Although I have 35 yrs of legal experience – know legal procedures – I am often reminded by lawyers – almost to instill fear – that I cannot provide “legal advise”, something I have known for 35 yrs.
It’s simple – Go to a lawyer for legal advise. Go to a clerk for legal information.
Nice post. Let us not subject SRLs to further abuse by calling it the Canadian “Justice” System. Justice is a pie in the sky dream; in reality, it’s the Canadian Judicial System with some provinces more corrupt than others!
Even seasoned lawyers can’t differentiate between legal advice and legal information and suppose a lawyer on the opposite side gave you incorrect legal information which you acted to your detriment? Can you sue him? His Law Society will not discipline him!
In my situation, the opposite side’s lawyer (who chaired the 2011 revisions to the Code of Professional Practice) learned that I was intending to file for personal bankruptcy so he emailed me telling me to seek the advice of a bankruptcy trustee who will advise me how to deal with my lawsuit’s asset. When I did see a trustee and he recommended that I file for personal bankruptcy, that opposition lawyer then filed a motion killing my lawsuit because a bankrupt’s assets now vested (belonged) with the trustee!
I complained to his Law Society accusing him of intentionally giving me bad advice. The Law Society’s Director of Discipline replied saying “He gave you legal INFORMATION not legal advice and beside, it is incumbent upon you to follow the advice of your own lawyer and not blindly do what the opposition lawyer SUGGESTED what you might do. Also, the opposition lawyer is protected by Judicial Immunity in that what he suggested that you should do was a litigation strategy of his”.
Some years ago I was anxiously desperate to find a lawyer that would take my case based on its merits and his or her oath to provide that service with the expectation of some reasonable financial closure upon completion.
In one very frustrated conversation, me trying to be considerate and humble, I played my card and blurted ‘why won’t you take my case’ !?
The short answer: ‘its just not worth enough money’.
This is one of the most common situations which forces us into self representation.
And, you are quite right, without the administrative roadblocks the grey areas the lack of help, a SRL might have a fighting chance.
I (we) are all for some kind of reform. At the front lines and especially clipping the wings of the unscrupulous overpriced lawyers.
This is true in Alberta as well. You have nailed it with your analysis of how things really are for self-represented litigants trying to navigate their way through the system and dealing with Court staff. I have heard Court House employees actually scold people for asking questions. I am a Paralegal who assists self-represented parties with their family court matters in Alberta, and it is unfortunate but independent paralegals are not encouraged to provide any assistance to self-reps in our province, and our law society refuses to allow us to become regulated for fear that we might take business away from lawyers. The reality is, most practicing lawyers in Alberta that know me, acknowledge the need for access to justice and think what I do is a great idea! The thought that we would be taking business away from lawyers is absolutely absurd, as many self-reps. end up on their own after having been through 2 or 3 lawyers who have depleted their financial resources so they’ve already taken their cut! Unfortunately, it really boils down to egocentrism and as you say – the monopoly! Until the egos are set aside, there will be no access to justice for the ordinary person who marginally exceeds the income criteria to receive Legal Aid coverage and others who find themselves alone in the system trying to fumble their way through, hoping they don’t get bulldozed by procedure, which almost always happens. I hope I live to see change – then my work here will be fulfilled!
This aspect is automatic in every other profession. As an example in the building industry, the Planning and Building Departments of all communities assist community members by providing zoning and procedural information. They do not tell them – ‘Go hire an Architect’. I am an Architect and do have clients that come to our office regularly to go further with a project as required by the Ontario Building Code and the laws that cover construction, however initially the consumer has the right to review all applicable laws and procedures governing how a site could be developed prior to seeking out our professional services. This is assumed in our profession but severely lacking in the legal system from judges down to administrative personnel who always expect you to speak to a lawyer or refer you to one rather than be helpful. The legal system has been self-serving for maximum profit far too long and must be brought into the real world where competition is a requirement of success. This is difficult to achieve when so many lawyers are also elected representatives at various governments levels where the changes must occur.
Joseph, your comments about the planning and building department being able to provide advice is a great example of how the system needs to work.
The law society shouldn’t be able to dictate who can and can not provide legal advice, that should be left to a government agency.
I agree. When I worked with the courts in Alberta, I noticed, in the past, that court staff, when they didn’t know the answer, would often tell the person to talk to a lawyer, whether the question was procedural or legal. I created instructions for staff as to what constituted legal advice as opposed to information. I like to think that I influenced staff to be more willing to answer questions, and to spend the time to find the answers for people.
However, the SLR also has to understand that many of their questions DO require legal advice. Many times, when I have told someone that they need to ask that question to a lawyer, they have responded “I don’t want legal advice. Just tell me what you think I should do.” Well, that is legal advice!
Well done Colleen for trying to drive positive change. Your’s is an interesting perspective I hope NSLRP might use to further advance this conversation, if you would be willing.
Certainly, SRLs need more help from court clerks. I am wondering if paralegals can be recruited for court clerk positions. I presume they would at least understand the difference between legal information and procedural information and may be more able to help self-represented litigants.
Colleen states, “Many times, when I have told someone that they need to ask that question to a lawyer, they have responded “I don’t want legal advice. Just tell me what you think I should do.” Well, that is legal advice!”
I suggest that you let the self-represented litigants know about their option to talk to a lawyer that he/she is comfortable with or to conduct their own legal research or to do both. You cannot guarantee/assure whatever a lawyer advises must be correct. If you are following this blog, you would know about the issues that lawyers create because of their lack of competency or training. You should not pretend to be blind to these realities if you really care about SRLs.
I am also skeptical about your conclusion that a SRL’s request “I don’t want legal advice. Just tell me what you think I should do” is legal advice.
When SRLs file a particular document or complete a particular step, they may want to know their next step. Such information should not be denied.
Well said, Aaron.
Participating in our current legal system as an SRL reminds me of trying to get school essay assignments in on time. Those who are unable to hire a tutor (lawyer) are still expected to focus on writing a good essay (develop strong legal arguments) while also learning new computer software skills & the required essay style (court procedures and rules).
Improved customer services at courthouses are much needed and long overdue.
Quality service at court desks is certainly a key part of the Access to Justice problem. Some clerks are just downright and unhelpful, others not. Most have no legal training or certification, and very few are paralegals. But for the court staff to provide any legal advice – instead of procedural information – risks cloaking the court with the appearance of bias. That can never be allowed to happen, otherwise respect for the law and the judges will instantly disappear. If you qualify for Legal Aid then the staff will tell you go there for advice, otherwise you will have to seek out the services of a properly trained and licensed lawyer willing to work on your terms.
I feel Mr. Huizinga does not take a broad enough view. It seems to me there is simply a lack of commitment to justice in the system given it is a bureaucracy. I’ve seen court staff give advice and special dispensation to lawyers while deny information to me claiming it might be advice. I’ve had judges decline jurisdiction when they most certainly had it, and exercise jurisdiction when it did not exist. There is no accountability for such errors in the justice system compared to real life. ‘Sorry for costing you and others hundreds or thousands of dollars? Oops?’ People lose their jobs over screw ups in the real world in part because there is recourse. Where do you complain about injustice in a system premised on being a final extreme option?
Yes I also have being abused by the clerk staff in the same ways as you all have described so good as they too are not accountable as judges for their terrible actions.
You tell us if this is proof of some of the abuse out there .
http://alberta.newjusticeforthepeople.com/queens-bench-chambers-more-tricks/
I had the misfortune of having to represent myself at the Small Claims Court, Divisional Court and Superior Court.
The same clerk first told me that she could not swear my affidavit, then she could (AFTER I found this LINK and showed it to her) but not in Divisional Court or Superior Court. PLEASE NOTE – NO FEE FOR THIS SERVICE
https://www.attorneygeneral.jus.gov.on.ca/english/courts/guides/Guide_to_Motions_and_Orders_EN.html
Your affidavit can be sworn before:
a Small Claims Court or ServiceOntario staff member who has been appointed a commissioner for taking affidavits (there is no fee for this service);
It could be she really did not know – but she was very adamant about other issues – unless and until I brought her printed pages.
It is VERY difficult to deal with the public – particularly in stressful court proceedings, but in many cases we are NOT there by choice, pay dearly with blood sweat and tears.
Court staff are paid to provide “CUSTOMER SERVICE” – all I ask is that they are polite and professional.
PS
this link https://www.ontario.ca/page/find-notary-public-or-commissioner-oaths-taking-affidavits
used to say NO FEE for affidavit
NOW it says FEE MAY be charged.
PPS
These NSRLP pages used to have a field for commentator’s website
I think it is time for us to recognize that the common law system is not working and not compatible with a system, where litigants are forced to self-represent because of lack of affordability of lawyer fees. We may have to move for the Civil Law system.
In one of my comments to a previous post, I stated that self-regulation does not work in Health system as well as in the justice/legal system. It looks like more and more people agree with that. Now, how can we compel our elected officials to remove self-regulation and leave the regulatory authority with the public? For example, England, Wales, Australia and New Zealand ended the self-regulation of Health professionals as well as legal professionals, after hearing lots of criticisms, and adopted public regulation instead. We should push our elected officials to follow suit.
On July 22, 2015, my employer “Guelph Mercury” sent me an email attaching my Termination Letter. The email stated, “Please find attached a response to your July 19, 2015 email to the Mercury”. The Termination Letter began by stating “After reviewing your July 19 email, …” However, the Human Rights Tribunal of Ontario opined that the July 22, 2015 email and the attached termination letter was related to July 17, 2015 email but not to July 22, 2015 and summarily dismissed my Application without allowing for hearing.
On the face of the evidence, the lawyers’ argument that the Tribunal should dismiss my Application by presuming that the employer’s email and the attached termination letter was related to July 17, 2015 email but not to July 19, 2015 email is an exploitation of the privilege that the Tribunal offers to Lawyers over self-represented litigants and such dishonest and misleading arguments are also professional misconduct.
Further, the Tribunal’s conduct of blindly supporting lawyers and disregarding a SRLs evidence and submissions is obvious bias and abuse of power or improper exercise of jurisdiction. I took the issue to the Divisional Court, but the Divisional Court sided with lawyers and the HRTO and ordered cost against me. The Court of Appeal also refused my Request for Leave to Appeal without reasons and ordered costs against me. Similarly, Supreme Court of Canada also refused my Application for Leave to Appeal and ordered cost against me. Justice was not done and the rule of law was not upheld.
I wanted to go public on the above issue, but I have prior experience with CBC telling me that it would speak only with lawyers. The CBC felt SRLs are not credible and their stories should not be aired. I am wondering if anyone can help me share my story with the public and media to create awareness and demand a better protection of rule of law.
reply to Koba . Perhaps it is time for a website ? http://alberta.newjusticeforthepeople.com/
the justice system is the worst place for there to be corruption-the lawyers/judges are their own judge/jury/executioner-they wont stop being corrupt until they face GOD-and there is no-one that can stop them-the pm/mp’s are lobbied by lawyers and we can do that so there is NO hope-but dont give up because it would be even worse without all of us fighting.
We need to start a protest group and go to the media etc to shame them into letting us use the courts-the constitution doesnt really exist for us-if it did we would win our cases-we need to fight for the right to have constitutional rights !!!!
Well said, Tom!
We need to start a protest group. When we are united, the politicians and media may not be able to refuse to talk about our concerns by treating us as some kids fighting against the elites: lawyers and judges.
In order to start a protest group, we need to create a separate forum to unite people that are interested in protesting. I wonder if any SRL that is tech savvy may create such an online forum.
I have also made a request to NSRLP that it create a separate forum for SRLs to share their full stories, concerns and suggestions in a less restrictive manner.
Almost all judges are corrupt as long as they wield unfettered power and held unaccountable for their bias toward high prices buddy lawyers and their disdain of SRLs.
If per chance an SRL got lucky with a kind judge, the other side’s lawyer appeals the decision to a 3-member panel of corrupt appellate judges!
reply to all . Check this out once again a past president of a law society & a judge that sets up unrepresented persons as vexatious litigants http://alberta.newjusticeforthepeople.com/vexatious-litigant-scam/
gets promoted ??
https://pm.gc.ca/eng/news/2019/05/22/prime-minister-announces-appointment-new-associate-chief-justice-court-queens-bench
How sad is this ??
Well written and to the point. I appreciate the detail in this article!
Just prior to filing my Statement of Claim in 2012, I was arrogantly mistreated by two older male Deputy Registrars (a fancy tiled for a court registry clerk). They spoke to me quite roughly and impatiently. I reported them to their boss the Registrar.
Several months later, L learned that both of them had “retired”. Currently, all Deputy Registrar are female, friendly, helpful, not condesending, and they smile a lot. What a breath of fresh air!
Your welcome, I have advocated for changes in the justice system as well the child protection system in ontario.
I have also spoken at a conference for the society of adjudicators and regulators on the experience of self represented persons.
Any one remember this ? Alberta Queen’s Bench, Justice Denny Thomas wants to have a public access database naming all “vexatious litigants” Does that some like a judge that wants the people to be shamed publicly etc. which is all the signs of being ,defamation: libel & or slander ? Please read thsi & let me know your opinion(s).
https://dialalaw.peopleslawschool.ca/defamation/
I am not about to defame someone publicly via a radio or television interview.
Pertaining to paragraphs in my Statement of Claim in which I have asserted this and that, how is that considered libel just because the defendant disagreed with my assertions? How and why would the defendant claim I was vexatious?
He and Justice Rooke (Meads v. Meads) are in a competition to see who can be most abusive toward the Canadian public. The Supreme Court in a case involving mobility rights, relied upon in Divito v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 47, [2013] 3 S.C.R. 157, but you do that in court and you will be abused with impunity : “[25] As a treaty to which Canada is a signatory, the ICCPR is binding. As a result, the rights protected by the ICCPR provide a minimum level of protection in interpreting the mobility rights under the Charter. ”
In Thomson Newspapers Ltd. v. Canada (Director of Investigation and Research, Restrictive Trade Practices Commission), [1990] 1 SCR 425, 1990 CanLII 135 (SCC) : “While individuals as a rule have full legal capacity by the operation of law alone, artificial persons are creatures of the state and enjoy civil rights and powers only upon the approval of statutory authorities.
The individual may stand upon his constitutional rights as a citizen. He owes no such duty to the State, since he receives nothing therefrom, beyond the protection of his life and property. His rights are such as existed by the law of the land long antecedent to the organization of the State, and can only be taken from him by due process of law, and in accordance with the Constitution.”
Just try to bring up the very common law that you are obligated to use to protect yourself and your property and you shall be abused, denied justice and ridiculed after being swindled. Judges that deny the ICCPR and ICESCR must be fired immediately and the individual denied whose rights were trampled should be able to sue the Justices because they are ‘artificial persons’.
Now, if that ever happens, you will have a working system.
Console yourselves with the fact, that former Chief Justice of the Supreme Court of Canada, Beverley Mclachlin, probably commiserates with you, since her merely euphonious December, 2006 STATEMENT OF PRINCIPLES has come to naught after 13 years, as I told her it would, unless actively enforced by her and the Canadian Judicial Council. [ The end of my letter to her, referred to under the ” Postcard ” post of May 1. ]
She promulgated, on behalf of a unanimous CJC, that all court staff shall help the SRL to their utmost and for the judges to do the same; including a softer evidentiary approach and to repair minor irregularities on the spot. Yet 13 years later we still have to smell this untreated sewage served up in a perfume bottle: the only difference being an inflationary price.