Building More Layers of Research on the SRL Phenomenon: Upcoming Publications from NSRLP

This week, NSRLP is releasing the first in our upcoming series of Research Reports using material from the SRL Case Law Database.

Lidia Imbrogno

Since January 2018, a student team (under the leadership of RA Lidia Imbrogno) has been building a detailed database of decisions that affect SRLs and reflect an emerging jurisprudence.

There are over 200 cases in the Case Law Database (CLD) to date, and work continues, as research assistants add further decisions that involve one or more SRLs and shed light on one (or more) of our four guiding questions:

1. Under what circumstances are costs awarded at a punitive – rather than an indemnity – level against SRLs? And under what circumstances are costs awarded in favour of a successful SRL and how are these assessed? (This question is the subject of this first research report.)
2. How are courts applying their discretion to designate a SRL a “vexatious litigant”? Where SRLs are described as “vexatious” but not formally designated as such, does this affect the way they are treated by the court?
3. How do courts deal with accommodation requests for special consideration in cases involving SRLs (e.g. time extensions, venue adjustments), including for physical or cognitive disabilities?
4. How are courts developing and applying the principles of procedural fairness in relation to SRLs, especially in light of the 2017 Pintea decision by the Supreme Court of Canada?

The first CLD paper published today is by Lidia Imbrogno, and reviews the state of the law across Canada on cost awards to successful SRLs. It shows how the courts are having to adjust to the phenomenon of considering costs for individuals other than lawyers on retainer. This is important information for:

• Successful SRLs who may want to seek costs for their time
• Lawyers representing clients with an SRL on the other side – anticipating that their client could be ordered to pay costs for the work of the SRL on the other side
• Pro bono counsel who can be compensated using the same principles of “time value”

NSRLP welcomes these developments, which are a part of countless ongoing procedural adjustments to the reality that so many people showing up in court without a lawyer to represent them experience.

We shall be publishing further Research Reports in the CLD series over the summer (all resources related to the CLD can be found here), including papers on:

• Gender stereotypes in the treatment of female SRLs
• Punitive cost awards against SRLs
• How judges use the term “vexatiousness”, and its impact on SRL outcomes
• A review of procedural fairness cases in the 12 months since the Pintea decision

The Transcripts Research Project

Also upcoming this summer are the results of NSRLP’s Transcripts Research Project. In response to years of complaints and queries from SRLs about difficulty of accessing transcripts – which are also very costly – we decided to do a country-wide review of procedures.

We set ourselves three questions to answer in each province:

1. Can I get a transcript?
2. How much will it cost?
3. What is the procedure for obtaining a transcript?

In uncovering this level of detail, RAs Becky Robinet and Kaila Scarrow found themselves immersed in yet another area of practice and procedure that is struggling to adjust to the influx of SRLs. Becky and Kaila found some relatively simple and straightforward procedures – and others so complex that they despaired of finding their way through them.

Transcripts are often critical documents for SRLs. They enable people to recreate what was said in a hearing when – as SRLs tell us all the time – their anxiety may prevent them from being able to recall the details of what happened, and they may have heard legal terms they did not understand at the time.  In some cases, this is also a logistical issue – some courts require a transcript to be submitted with an appeal.

We shall be publishing two resources this summer as a result of the Transcripts Research Project:

• A review of the similarities and differences in procedure and costs across the country, and the A2J issues these raise for SRLs
• An “Obtaining a Court Transcript” Primer providing a province-by-province summary of the answers to the three questions above, based on our research

NSRLP is committed to ongoing research on emerging A2J and SRL issues. We are still only scratching the surface of the innumerable questions and issues created by the SRL phenomenon.

Come ride along with us this summer as we roll out our new publications.