Written by Samsudeen Alabi, NSRLP LLM student Research Assistant; originally published on Slaw, Canada’s online legal magazine.
In 2019, a case came before the Magistrate’s court in Lagos state, Nigeria involving a micro-lending company looking to recover a loan from a borrower. A lawyer represented the micro-lender. The borrower represented himself because he could not afford to retain the services of a lawyer. The lawyer filed an application for summary judgment for the entire loan sum. The borrower responded through an affidavit and a written memorandum. He argued that judgment could not be summarily given to the micro-lender because he had repaid part of the loan.
However, all the material aspects of the borrower’s affidavit were arguments instead of facts. This was contrary to the law governing affidavit evidence. The microlender’s lawyer objected and asked the court to disregard all the material aspects of the affidavit. Without these material aspects, the borrower effectively had no response to the application for summary judgment. The magistrate intervened by informing the borrower that if he had to decide the microlender’s application, “based on the documents before me, the summary judgment application is more likely than not to succeed because your affidavit is not in compliance with the Evidence Act. So, I will grant you an adjournment to put your house in order.” The magistrate’s words aggrieved the self-represented borrower. He concluded that the magistrate and the opposing lawyer were against him. Therefore, he petitioned the head of the magisterial district to have the magistrate removed from the case.
In Canada, SRLs routinely reach out to us at the National Self-Represented Litigants Project (NSRLP) to express their concern that opposing lawyers, the courts, or both have a bias against them – sometimes, they even worry that the opposing counsel and the adjudicator are working together to conspire against them. The SRLs’ fears raise a challenging issue: How can judges and lawyers navigate a suspicion of bias raised by SRLs during litigation? I intend to think through some of the themes concerning this issue by drawing from my education and work experience in two common law jurisdictions: Nigeria and Canada.
The law and the apprehension of bias
The Canadian and Nigerian judicial systems are primarily modelled on the English common law system. Therefore, the principles underpinning bias in the two countries have a similar common law origin. The Lord Justices of the House of Lords stated in the case of Ranger v. Great Western Ry. Co., that a judge, “ought to be, and is supposed to be, indifferent between the parties. He has, or is supposed to have, no bias inducing him to lean to the one side rather than the other.” This means that judges must stand outside the adversarial contest between the parties, lest the dust raised by the parties settle upon the judges’ heads.
Hence, judging requires specialized training and strong ethical grounding. In addition to having sound knowledge of the law, judges are also expected to be of the highest integrity and impeccable character. Their job requires them to conduct themselves within and outside the courtroom in a way that neither jeopardises their integrity nor casts doubts on their character. Their appointment process is painstakingly rigorous and stringent. So much so that after passing through this appointment process, the law assumes that every judge is impartial until the contrary is proven.
But unfortunately, we do not live in a judicial wonderland or an imaginary and fantastical realm of perfection. Judges will not always be as they ought to be merely by the design of our legal systems. The reality is that Judges are human beings. They bring their personalities and predispositions to their jobs like everyone else. So, the law recognizes that parties might be apprehensive of bias in certain instances. In such instances, the apprehensive party can either request the judge to remove (recuse) themself from the case, or the judge can remove themself from the case without being asked. Canadian law requires that a party alleging apprehension of bias must request the suspected judge recuse themself. Nigerian law is similar, however, it is very rare for a lawyer to allege bias against a judge in an open court in Nigeria. The conventional thing to do in such instances is to make a formal request – through a letter served on the offices of the judge and the opposing lawyer – to the head of the court for reassignment of the case. In both countries, the party alleging bias may have an opportunity to appeal.
In determining an application for recusal, the law has developed guideposts that judges must follow when a party raises suspicion of bias. The foundational guidepost is that apprehension of bias must be reasonable, because the zero-sum nature of most litigation may incite claims of partiality. The Supreme Court of Canada (SCC) identified the test for determining whether a suspicion of bias is “reasonable” in the case of Committee for Justice and Liberty v. National Energy Board. Accordingly, the question for determining whether an apprehension of bias is reasonable is, “… what would an informed person, viewing the matter realistically and practically – and having thought the matter through – conclude?” This test appears to be a simple bar for allegations. But the reverse has been proven to be true because recusal motions rarely succeed.
Exclusion and self-represented litigants’ apprehension of bias
SRLs in Canada and Nigeria have reported feeling excluded by stakeholders when interacting with the justice system. This exclusion manifests in different forms. For instance, the official language of the common law courts in Canada and Nigeria is English. Linguistic competency is a major determining factor for how well a party does in court. As in the larger society, SRLs have differing competency levels with this language. Complicating this further is that the language of the law is a jargonish one that is peculiar to the legal profession. Understandably, an SRL might feel excluded when an opposing lawyer and the judge converse and use this jargonish language.
Another reason for this exclusion is the disparity between the available resources to the party represented by a lawyer and the SRL. Added to these factors is the SRLs’ limited knowledge and understanding of the judicial process, particularly as compared to opposing counsel and judges. These factors can together manifest an apprehension of bias throughout the judicial process for SRLs. Where this apprehension is not addressed, it invariably leads to allegations of bias, recusal requests, and broader mistrust of the justice system.
The suspicion of bias strikes at the root of the integrity of the entire justice system. Therefore, “insiders” such as judges and lawyers should work to ensure that any apprehension of bias by “outsiders” is addressed. Below, I highlight a few suggestions on ways to do this.
Some takeaway points for judges and lawyers regarding SRLs’ apprehension of bias
To Judges:
As noted earlier, judges need to understand that SRLs feel excluded when interacting with the judicial system due to several factors, including the peculiar nature of the legal profession, technical rules of procedure, and jargonish legalese. Any mismanagement of this feeling of exclusion lends itself to SRLs’ suspicion of bias against them. Judges have a role in assuaging the fears and apprehensions of “outsiders” who engage with the system. Several decisions attest that judges are expected to adjudicate cases involving SRLs actively. Judges are expected to contextualize their role in such cases, and extend accommodation to SRLs that would otherwise not be available to a party represented by a lawyer. As suggested here by the NSRLP’s Executive Director, Dr. Jennifer Leitch, “changes to the procedural and evidentiary rules must be implemented by judges who take seriously their engagement with self-represented litigants as legitimate and deserving participants in the legal process.”
For instance, in the case of Canadian College of Business & Computers Inc. v. Ontario (Private Career Colleges), the Ontario Court of Appeal (ONCA) allowed Mr. Kannuthurai, who represented himself at the hearing stage, to raise the issue of bias for the first time on appeal to the ONCA. This was a clear departure from the general rule that bias must be raised at the hearing stage. The ONCA based this accommodation on several factors, principal amongst them being that Mr. Kannuthurai did not know that he was expected to have raised the issue at the hearing stage before the adjudicator he suspected of bias. This decision reflects the necessity for judges to accommodate the peculiarities of cases involving SRLs, and contextualise the rules of procedure to meet the requirements of justice in such cases. Contextualization by judges should be the norm rather than the exception when SRLs appear before the courts. SRLs are more likely to be less apprehensive of bias when they see that judges take due cognizance of the peculiarity of their circumstances, explain the process, and are willing to make necessary accommodations for them in the interest of fairness and justice.
Whenever SRLs raise suspicion of bias, adjudicators should consider taking steps to verify the veracity of such suspicion. Adjudicators should ask the SRLs for the specifics of their apprehension, and not dismiss it out-of-hand. When an adjudicator believes such apprehension is based on a misunderstanding of the law or the practice in court, the adjudicator can take the opportunity to understand and perhaps clarify the source of the SRLs’ concern. Where such apprehension is not based on rules of procedure or the law, adjudicators should endeavour to reflect and take cogent steps to address the issue.
To Lawyers:
When SRLs are involved in your cases, lawyers representing opposing parties should reduce the usage of legalese . Legal Advocacy collectives, such as the Advocates’ Society, can also reduce suspicion of bias through initiatives that prepare litigants, especially SRLs, for the courtroom. A leaf can be borrowed from initiatives such as the NSRLP’s School for Family Law Litigants. Specialized organizations such as the Advocates’ Society should consider creating a toolkit to assist self-reps in understanding notions of judicial impartiality and neutrality. They could consider creating a course on written advocacy for SRLs similar to their Annual Course on Written Advocacy for legal professionals. Together these types of initiatives can make the judicial system’s rules and practices more accessible to the public, thereby reducing the suspicion of SRLs that the justice system is biased.
A responsibility to the public
It is essential to emphasize that the suspicion of bias strikes at the root of the integrity of the entire justice system. Therefore, stakeholders have a role in assuaging the fears and apprehensions of “outsiders” who engage with the system. Taking this responsibility seriously can make the court, its rules, and practices more accessible to the public, thereby reducing the fears of bias.
This seems interesting…Musician, Fiona Apple, is now a “court-watcher”.
https://www.stereogum.com/2203825/fiona-apple-court-watching-pg-county-maryland/news/
Amal and George Clooney have a similar advocacy group called “TrialWatch”: https://cfj.org/project/trialwatch/
It seems MacKenzie Friends (Courtroom Companions” could play a similar role.
There is a problem with MacKenzie Friends as even though they are support they are considered benefit of counsel In 2 decisions now the Judge has included that although Self Represented Litigant did not have an attorney speak for them that they had the benefit of advice from counsel.
The bias factor swayed in as the Judge scolded the defendant that He & opposition counsel were discussing important legal issues that unrepresented accused would not understand. The URSL was only trying to make reference to recent precedent case that they had which solidified their position. The judge went on to ask the lawyer about the case as it opposed their assertion & he said he wasn’t aware of the case. The judge went on to rule for in favour of the representing attorney as the similarity in the precedent must not be there or the lawyer would have raised it to the court.
My Township breached our agreement ( contract), unjust enrichment, bad faith. AND
Township admitted breaches of its legislated obligations, disclosed my personal information, …
Township breached my rights of Free Expression, Privacy and Human Rights reprisal.
Reprisal is documented by Township clerk, Lawyer ‘injected’ my Human rights application into the proceeding, thereby breached implied undertaking rule and Rule 3.3 of the Human Rights Tribunal.
The Township did not plead any defense to the reprisal.
At the hearing – they argued the Small Claims Court has no jurisdiction, for Human Rights claims.
Reasons for dismissal.
Relationship with my Township is statutory not contractual, my claim is ‘vague and unclear’
The IPC has exclusive jurisdiction. The endorsement did not deal with MFIPPA S 49(1) Civil Liability.
The endorsement relied on an overturned decision – not pleaded or argued by anyone.
The Amended Claim did not include the Human Rights Claims.
Well yes it did – and the endorsement used the added HR claims to set the costs of the action.
OK I have to admit it seems to me that the endorsement did not deal with my issues.
I have to say that I do not see procedural fairness,
Costs? Yes the Township wants 12,000 or so. My claim was $8,000 for HR reprisal $7,500 for all else.
The Township alleges I filed meritless IPC appeals, civil claims, and The Human Rights Application…
Just submitted my costs reply. Considering appeal.
Can anyone provide a SIMPLE appeal ‘template’ that deals ONLY with
1. Endorsement did not deal with a) Contract b) Charter and Human Rights c) overturned decision d) Unjust Enrichment
2. Procedural Fairness
3. Costs
Help
Court Watcher in US. See Fiona Apple explain necessity to keep open courts online re transparency:
https://www.youtube.com/watch?v=94WXCgKuOws
Perhaps what we need to find out is how many SRLs (particularly those the NSRLP has heard from) concluded that they had run into judicial bias – either in the person of a specific judge or systemic bias. I personally concluded that I had run into both, and I had no doubts about that. I responded by filing a complaint in 2010 with the CJC, and subsequently further complaints with that Council.
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Now I believe we have a golden opportunity. And it could slip through our hands very quickly. The CJC is the subject of Bill C-9, introduced in the House of Commons last December 16. There are links here – https://www.parl.ca/legisinfo/en/bill/44-1/C-9 – to three Hansard records that include the 2nd reading debate. I’ve read almost all of that record and say, without hesitation, it is a disgrace. The MPs have demonstrated that they know nothing about the subject and don’t care to learn anything. That record will likely be updated on Monday to show that the bill has been moved to the committee consideration stage. That is the stage, the only stage, at which we – the public – have a chance to be heard. I took the opportunity to send a brief initial submission to the committee on September 20, with an indication that they will be receiving more.
Coles notes on your thoughts / contributions to C-9 amendments in favour of transparency and accessibility to complaints process for the public and in particular self-reps?
Grateful to see this post btw. The public should be lining up at the desks of every MP across the country on this issue.
Chris you should keep us posted so we know when participation is possible. I have personally attended political conferences and raised hell. Once a judge was present and he jumped up (was rude too calling “she” and pretty much saying I don’t know what I am saying). Every time the political party send surveys I include concern for appointment of judges and other decision makers as my major concern)
i am watching this as well chris,, the suggestion that we see bias is so off beat,, It is not a suggestion. We see it loud and clear,, could Judge Rookes comments in the law review have been any clearer, He called us,, a scourge on the court,, and said it was his mission to get rid of us, He spoke of us, as if we were rodents, There is no suggestion about it, If you are self represented,, you have encountered bias, That is why the court started calling all of us,, vexatious,
I don’t know if it’s the article you are referring to, by in the article in the Jan. 2013 “Canadian Lawyer” magazine, titled “The ‘scourge’ of unrepresented litigants.” The article focuses on what Justice Rooke refer to as “Organized Pseudolegal Commercial Argument” litigants. I haven’t found an article where Justice Rooke referred to SRL as a “scourge.” But maybe it’s a different article you are referring to.
In an Oct. 2012 article posted on this website titled, “Avoiding Conflation: OPCAs and Self-Represented Litigants,” the author writes:
“It is critical that the phenomenon of OPCA’s is not conflated with the large and growing numbers of ordinary men and women now representing themselves in court. In stark contrast to OPCA’s, they do not question the authority and legitimacy of the courts – if they did, they would not be asking the court to give them what they see as justice. They are simply trying to navigate their way through the system as best they can – and some do a very competent job, albeit at considerable time and emotional cost.”
If there is an article where Justice Rooke said that all SRL are a “scourge” on the courts and that it was his mission to get rid of all SRL, could you post a link to the article? Lumping all SRL together as “us” makes it seem that all SRL are the same, when that is not the case.
Well thought Samsudeen! Lessons for all.
One important factor driving SRL’s apprehension of bias has to do with perception of the legal profession: we know judges are former lawyers. We perceive lawyers as being elitist and clique-ish, and socializing with each other; rightly or wrongly, that is the public perception. So SRL’s are already primed to assume the judge will favour the lawyer, who may be a friend. It doesn’t take much to trigger apprehension of bias under such circumstances.
If an SRL is lucky enough to have a presiding judge who slaps down the lawyer for something, that reduces that fear, but obviously that’s not a viable solution. Sitting in Court and observing can be very enlightening – it doesn’t take long to observe that judges aren’t on the side of lawyers, although that may not quell fears regarding one’s own case.
I think there’s a PR job that the CJC could take here, in doing some informational videos that directly address these fears and explain why we shouldn’t assume conspiracy. The public really knows nothing about what’s involved in becoming a judge. We just see a prominent lawyer or former-politician/lawyer get appointed to the bench amd assume that’s all that happens. The public should understand better the training that judges receive, particularly in being impartial. But any such video must openly accept that this apprehension exists and isn’t foolishness.
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As a writer, I eant to commend you on this sentence, well done!
“judges must stand outside the adversarial contest between the parties, lest the dust raised by the parties settle upon the judges’ heads.”
“Sitting in Court and observing can be very enlightening”. I’d say it can be enlightening, but not very, certainly not on the issue of bias, which they are skilled at disguising – when they want to (which in fact isn’t always).
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I sat in on many other cases after my own train of litigation began. I think it is likely that in most cases judges are endeavoring to overcome any bias they might have in favour of lawyers (and therefore their clients) over self-reps. I’m thinking of the typical family law case (with which I have no experience). But my own litigation wasn’t about family law. It was about matters that were highly political. Labour law is inherently political. On one occasion I tried to offer some advice to another litigant and his lay advocate (a friend of his) whose case was very similar to mine. The advocate was a well educated person, a successful businessman. But he wasn’t listening to me. I advised them to contact the court the evening before the hearing and find out who had been assigned to the case. The next morning, before the hearing started, the three of us sat in a coffee shop across from the courthouse and I offered them my advice. [continued below]
This point of view, like so many, is predicated on the patronizing assumption that SRL just don’t understand. Many do, and judges’ preference towards counsel over SRLs is marked. The same arguments and evidence coming from a lawyer are received with less skepticism than those coming from an SRL. Also, judges allow counsel to school them in the law and procedures but cover their ears when SRLs try to do the same. Judges also allow themselves much more lattitude when denying motions from SRLs, favouring expediency over fairness. My belief is that this is because judges know how unlikely it is that an SRL, their resoruces already exhausted from filing the motion, will appeal the decision, in another court on impossibly short timelines, with high filing fees.
From experience and observation; I completely agree with your thoughts.
Yes we have also encountered that as there was clear errors which on leave by the SRL the Appellant judge noted but finalized with the court resources are not infinite & this case is not substantial enough to warrant use of those resources.
This does not only end at the bench but we have also seen this in complaints to the Law Society by SRL’s as often even though substantiated a form letter is sent of no further action is necessary as representation is complex & although you may not agree with tactics of your counsel or other counsel you should speak to a lawyer about your options.
In one case the lawyer opposed to the SRL deliberately mislead the court as to what the claim was about & even though the SRL kept bringing the issue back to what the issue was which was breach of contract the judge decided that because others had taken issues regarding billing which is what the Lawyer had said the matter was about to small claims court that was the proper venue & dismissed the SRL’s case with costs
The Lawyer penned in the SRL name in an exhibit which the SRL didn’t submit as it had the name of the SRL followed by the signature of the lawyer
I agree Laura, every single time I am before a judge (at least 8 times in past 5 years), my objections are ignored, the judge and opposing lawyer talk over me or about me, and the judge grants whatever unfair order the sharp lawyer seeks.
I disagree with the term “self represented litigant”. Unless the litigant is a lawyer, there is no equitable participation. Unfortunately, using the term “self represented” intimates the layperson is skilled at lawyering. I think judges accept that statement as parity and do not suspend bias.
A better term is “unrepresented litigant”. There is no confusing the disparity here. The judge cannot defend inequitable treatment when the “ layperson litigant” (another better term), presents against a lawyer.
On another unfortunate note, that incivility and harassment by opposing lawyers is an acceptable legal strategy is the action of a desperate defence, and also cruel and unconscionable. The only thing a judge should permit is an attack of the evidence, not the person.
Layperson litigants can raise an issue if the opposing lawyer and the judge talk about the layperson litigant as if they are not there. I raised an issue at a hearing when the judge was hearing from the opposing party’s lawyer first on an application despite that I was the party making the application. I was told by different judge that when the other party is represented by counsel, it customary for the lawyer (who is an officer of the court) to give the court background on the matter. In reality, that is like the fox guarding the hen house.
I presented the Crown with a constitutional question with the required 2 weeks notice, served upon both the provincial and federal crown. At Court I presented argument with precedent to establish my position. The Crown lawyer responded with “no comment”. The Judge ruled against me because he just knew the law but when I asked him to point to the law he could not do so but assured me that if I appealed then I would get my answer, but I didnt. Would a reasonable man feel a reasonable apprehension of bias? I did but was told my opinion was irrelevant. Everyone is entitled to their opinion and it is clear that the legal opinion is far superior that a SRL and a judicial opinion, well, it must be vastly higher in value because, well, all lawyers and public servants and a great number of the public believe it or are forced to accept it. one or the other. Its a crapshoot.
Funny you raise the point about importance of who is making the argument. I will just point one whole set of cases that show judges can come to court and have no clue what they are saying. Just visit the Alberta Court of Appeal site and look up cases, especially by SRLs have been dismissed for “delay”. What you will find is the judges have no idea what delay meant. The court staff (Case manager) used to remove SRL cases from various lists apparently believing they got rid of the SRL and his/her case. But in such instances they gave the SRL and automatic 6 months extra time to go get their docs together or other preparation to get their cases re-instated. When the SRL return before the expiration of the 6 months, the ignorant judges, Appeal judges to boot, throw out the case for “delay” They have no clue, delay starts after the 6 months. Just go take a look and SRL ought to do a study. I still have a problem believing they are making a mistake and are not just crooked for how could appeal court judges be so ignorant? Another very interesting study would be to look in Alberta courts (QB/KB and court of appeal) to see how many cases the judges summarily dismiss on claims of lack of merit when there have been responses from the other side. If there is no merit, to what did they respond, often explaining their “defence”. SRL need to go do these studies and see how often SRLs are right about the law but the judges (and lawyers) are not. If there is any rigorous process to these judges’ appointments, it sure is lacking a lot
The reasonable apprehension of bias stems from society’s perception of inequalities of the judicial system, lawyers’ reputation in society and the fact that lawyers are officers of the Court, section 29 of the Law Society Act, and comments in some decisions that a judge will not make negative comments against a lawyer in order not to tarnish the lawyer’s reputation.
Perhaps it is useful for SRL to become proactively aware of the usual stereotypes that SRL are categorized into, and to avoid playing, or being baited into fulfilling those stereotypes. A Google search on “self-fulfilling prophesy” reveals that when people are treated a certain way by a person or group, they may fulfill those expectations as a result of the way they are treated. SRL are historically known by legal profession to make wild unfounded accusations against lawyers and judges. The more that even one SRL makes an accusation against a judge that is wild and unfounded, the more it hurts all self-represented litigants, who are up against the stereotypes, which can be used to the advantage of an opposing lawyer. In the article above, the judge in the case described at the beginning of the article seemed to be trying to give the SRL a chance, rather than granting judgment in favor of the other party based on the inadmissability of the affidavit. Yet, the SRL then sought for the judge to be removed. As a SRL, if a judge granted an adjournment so that I could comply with a rule, I would consider myself fortunate.
Are you suggesting then that it would be better if no SRLs ever suggest bias on the part of a judge and never request that a judge recuse him or herself? One of the problems I perceived is with case assignment. Every judge, upon appointment to any bench, is presumed to be qualified to hear any case. You can’t ask a judge to recuse him or herself because this is their first case (even if somehow you knew that). So case assignment itself should not be subject to any bias. But I think it’s pretty clear on the record that it is. We have no idea how case assignment works in any court (including any indication that it is consistent across courts). I suggest that the courts should divulge how many incidents of recusal occur each year, how many of them are in response to requests from a litigant (because some might not be) and how many times litigants make such requests. Why don’t we know that? Years ago I put that issue in a letter to a Chief Justice and Associate Chief Justice. I was told that how case assignment is done is no one’s business but the court’s.
No. I am not suggesting that at all. As with any case, there would need to be sufficient evidence and a legal basis. If the case of bias fails, the matter before the court will be decided by the judge that the SRL alleged bias against. That may not help them in the end. A judge is legally presumed to be impartial, unless it can be proven otherwise, which is a high bar to meet, whether or not a party is represented by counsel.
The practical difficulty is very simple to understand. If one encounters real bias in a judge (or any adjudicator) there is no actual recourse. The one offered is to take the matter to the next level of court. But judges will never make a finding of bias on the part of another judge. If there are any examples of that happening they are extremely rare. Consider that if a court clearly found that a judge sat on a case that he or she should not have, then that would warrant a complaint to the Canadian Judicial Council – a complaint that could lead to the judge being removed from the bench. When appeal court judges are presented with compelling evidence of bias on the part of a lower court judge and choose to deny it, then does that not say that they too are biased? That impartiality is always “assumed” is not an answer.
I have read cases where an application for the judge to recuse themselves on reasonable apprehension of bias is brought within the same proceeding. If the judge did not recuse themselves, and it could be shown this was in error, it could be raised in an appeal. Although I have not read it yet, there is a recent article in the Osgood Law Journal that discusses reasonable apprehension of bias. Here is a link to it: https://canlii.ca/t/7jsk7.
I am not saying bias does not exist. Though a self-represented litigant has to show a reasonable apprehension of bias by a judge based upon a legal test that is applied to any litigant, whether or not represented by counsel. Self-represented litigants are up against another major hurdle because it is has become stereotypical for self-represented litigants to make wild accusations against judges.
In my experience I have found that our judges who come from the same profession are flagrantly biased toward represented parties and despise self- represented parties.
In fact one Alberta judge had stated to an SRL that there is no free lunch. In my case the Federal Court of Appeal defended the opposing counsel who had failed to serve the factum until reminded a day before. The three panel head justice claimed that lawyers are busy people without questioning the opposing counsel why the factum was not served pursuant to the rules.
In another case a Brampton Small Claims Court adjourned the trial to advise the opposing in-house counsel to plead the action out of time when it was not out of time. Hence justice was perverted.
Hi Anon, I have read a lot of decisions regarding the “vexatious litigant”. And the template is the same. While some parties may be truly vexatious, that is not the case about me. I am disabled by PTSD, with neurological damage. When in court I am triggered, a very bad thing. I start to stutter, my brain shuts down, and any points I can muster are received as incoherent. I am vexatious to the court. A time waster in an era where there are no resources to fund for slow people.
Add the mean bashing opposition who uses my disability against me and total rushed docket, and a decision is always made against me.
Appeal?? It is not that simple. The opposition points to my losses as evidence of vexatiousnous, the judge nods his head knowingly, and I lose again. It matters not that I ask for accommodation so as to be able to participate. I am ignored. Human rights are supposed to kick in but the system says “make me!” How does a disabled single person who lives on disability appeal that? Court says “make me”
I’m not saying that litigants (whether self-represented or not) never make “wild accusations”. I am saying that if some of those accusations are valid, there is no recourse. If the bias is evident in the conduct of appeal court judges where are you going to pursue that? To the Supreme Court of Canada? You’d have more prospect of being heard if you took it to the Pope.
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Actually I never tried testing the SCC myself. I went to the Canadian Judicial Council. And that produced a very long record (though nothing that I can refer to on CanLII). But there will be a record (including a video) produced next Thursday when I testify – in person – before the House of Commons Standing Committee on Justice and Human Rights. You can view here – https://www.ourcommons.ca/Committees/en/JUST/StudyActivity?studyActivityId=11897428 – the video of the meeting today in which they heard from the first witnesses.
“Their appointment process is painstakingly rigorous and stringent. I beg to differ. We need a more stringent process and one that includes SRLs. I have been asking for a requirement that when a prospective appointee (judicial/admin tribunals) is being considered notice is given to every party who appeared before them or appeared with them (as lawyers) to be given notice and opportunity to participate in the appointment process. Just the prospect of this should make those inclined to be injudicious, toe the line. As a SRL, I have been mistaken about judge(s) and I owe one in particular a BIG apology, but most times I have been spot on and it is those times that matter. In my most recent foray, the CJ removed the culprit and did as I asked. (he agreed to go but I do not know who or what he agreed with). Off course I present my evidence. I then got two of the best judges ever to deal with my case. I never got all I asked for, but I was satisfied those judges exercised much effort to dispense justice.
I truly appreciate the recommendations for minimising “outsiders’ fears (and even suspicion) of bias. That worked for me
In my case,, i set the case down for evidence examination,, served everyone on the correct form,, and served everyone the required 2 weeks in advance, On the very day that the examination was booked for,, the case was being heard without my being there, as i was never told they were transferring the case, while i was sitting in chilliwack waiting to begin the examinations, That was not bias,, that was sharp practice, i refiled, the case,, with proof of this happening, The judge made no comment,, and completely disregarded my evidence,, then labeled me vexatious,, and threw me and my case out of court, Sound like justice?? Not to me,
What happened to Ms. Macfarlane …
Hi Audrey, Julie has retired from the Directorship of the NSRLP to pursue her campaign to end the mis-use of NDAs (learn more here: https://www.cantbuymysilence.com), and to spend more time with her new grand-baby! However she still sits on our Board of Directors.
It is impossible to disentangle the biases in the legal / justice system from the biases in the political system. Last Tuesday I flew from Vancouver to Ottawa and appeared on Thursday at the third (and I believe last) of the hearings conducted by the HoC’s Standing Committee on Justice and Human Rights to hear a total of 13 witnesses. The formal arrangement gives each witness just five minutes to make their case. I had not timed my opening statement so I ran out of time. I might just go back to do this again in front of the Senate’s equivalent committee. First view this video – https://www.youtube.com/watch?v=hJ5Fnm3fTIE – featuring JUST committee member Larry Brock, who is enjoying his first term as an MP. Mr. Brock was assigned the role of putting some questions to me. Here are the videos from the three meetings:
https://parlvu.parl.gc.ca/Harmony/en/PowerBrowser/PowerBrowserV2/20221117/-1/38022?Embedded=true&globalstreamId=20&viewMode=3
https://parlvu.parl.gc.ca/Harmony/en/PowerBrowser/PowerBrowserV2/20221121/-1/38101?Embedded=true&globalstreamId=20&viewMode=3
https://parlvu.parl.gc.ca/Harmony/en/PowerBrowser/PowerBrowserV2/20221124/-1/38126?Embedded=true&globalstreamId=20&viewMode=3
A comment in two installments:
Further to my November 26 comment, I am pleased to report further developments arising from my trip to Ottawa.
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With only five minutes for each witness to address the committee, and the requirement that we provide a copy of our “opening statement” the day before, I could have written something entirely different from what I did write. I was very pleased after returning home to find that posted online with this page – https://www.ourcommons.ca/Committees/en/JUST/StudyActivity?studyActivityId=11897428 – is a complete record of the committee proceedings, including the text of my “brief” – https://www.ourcommons.ca/Content/Committee/441/JUST/Brief/BR12143805/br-external/BudgellChris-e.pdf.
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Committee member Larry Brock put it to me that all they wanted to hear from the witnesses was what specific amendments we wanted to see. I am however even more pleased today with what I chose to put to the committee. And that is because I’ve just found this CBA National Magazine article – https://nationalmagazine.ca/en-ca/articles/legal-market/law-firms/2022/a-wake-up-call-for-law-firms, which includes the link to the 380 page FLSC / CBA report -https://flsc.ca/wp-content/uploads/2022/10/EN_Preliminary-report_Cadieux-et-al_Universite-de-Sherbrooke_FINAL.pdf. That CBA article was written just two and a half weeks after I appeared before the committee. Another witness was someone speaking for the CBA.
That CBA article paints a picture that is dramatic. To summarize, the legal culture is systematically harming lawyers. And yet there continues to be no acknowledgement of what it is doing to everyone else, including SRLs.
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I have not read the report yet but by coincidence I happened to land on a page with this paragraph:
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“I recently dealt with a different judge in another settlement conference who insulted me a few times
during a [x minutes] video conference. I was the only non-male in attendance. I spoke to a colleague
about making a complaint. She consulted with a retired judge who is a personal friend. I was told that
making a complaint would be useless and could affect my reputation with the court.”
One of the many indications that the legal establishment isn’t interested in addressing the access to justice deficit is the longstanding tradition of judges, upon retirement from the bench, returning to the practice of law to serve corporate interests, with no indication that any of them ever get involved with clients / cases that could challenge some of the A2J problems. I just spotted this CLM article – https://www.canadianlawyermag.com/practice-areas/litigation/retired-quebec-chief-justice-jacques-fournier-joins-blgs-disputes-group/373136 – published yesterday.
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It mentions there the Canadian Institute for Advanced Legal Studies, the organization whose principle interest is holding biannual gatherings at Queen’s College, Cambridge, and once every four years, gatherings in Strasbourg, France. They are preparing to hold the next Cambridge Lectures this year, as noted here – http://canadian-institute.com/english/speakers-e.html . The programmes for previous years can be accessed there. They’ve included virtually nothing related to the A2J deficit. I have yet to confirm, but I suspect, that at least some public money is being spent to pay for these gatherings, which in all these years have never been mentioned by the media.
I have experienced many of these issues even though I have only been in Court a few times. These are summarized in two papers I have written, the court version of which is summarized here. In brief, I opposed a bankruptcy where virtually all of the documents filed by the trustee were allegedly incomplete, misleading or simply false. For example the trustee reported the bankrupt as a single mother on welfare, when she was a full-time public servant and her adult children were both employed. The Registrar had all the evidence to support this, but accepted the trustee’s statements anyway, AND he did not record the hearing. On Appeal, the judge’s comments were basically that my appeal was going to fail because there was no transcript of the hearing. My Application for leave to take the trustee to Small Claims Court was telling. The judge accepted their lawyer serving notice to a random stranger who happened to share my last name. The judge then accepted the lawyer filing her documents 22 hours before the hearing and stopped any attempt I made to address them. Under PEI Rules she had no right to participate in the hearing. I did get minimal satisfaction when the court gave me a two page written apology, but left me and the other creditors (who knew none of the facts) ripped off.
My Two cents is that the small claims process should be fair and just. Meaning both parties involved in court proceedings should be self represented. Fairness can never be achieved if there is an unbalanced of power. A lawyer and judge on one side and the self represented litigants all alone. Judges always seems to side with lawyers and talk down to self represented litigants.
I believe in Quebec that there are only self represented litigants in small claims court. This should be standard.