“No claim for pooping and scooping into the neighbour’s garbage”: but SRLs deserve to present reasonable claims and not be halted by procedures they do not understandNSRLP
There has been a lot of chatter on social media about the Forest Hill neighbour dispute (Morland-Jones v. Taerk (2014 ONSC 3061)). Justice Morgan was obliged to point out to the plaintiffs in that case that “…a court cannot order the Defendants to be nice to the Plaintiffs….(t)here is no claim for pooping and scooping into the neighbour’s garbage can… Likewise, there is no claim for looking at the neighbour’s pretty house, parking a car legally but with malintent, engaging in faux photography on a public street…or just plain thinking badly of a person who lives nearby.”
The Forest Hill case could have been a textbook example of why we have rules to allow a motion to strike pleadings for failing to show a cause of action, and for summary judgment. However in this case (1) the matter proceeded to waste everyone’s time in a hearing for an interlocutory injunction and (2) the plaintiffs were represented by counsel.
This month at NSRLP we are focusing on those court processes, procedures, forms and formalities that SRLs find especially difficult to navigate and as a result, may be denied access to justice. Ironically, it is the observation of our guest blogger this week – Heather Hui-Litwin, a lawyer who works with self-represented litigants as a “litigation coach” – that SRLs are commonly “halted” by motions to strike their pleadings for lack of cause or summary judgment, which they do not anticipate and to which they have little or no idea how to respond, however well grounded their action.
As a “Litigation Coach”, I make a point of regularly observing court hearings in which at least one party is self-represented in order to understand the needs of self-represented litigants. Oddly enough, while SRLs appear to do reasonably well at trial hearings with judicial guidance, they seem to have more difficulties as respondents to motions. This may be because most litigants know that the legal process involves making an application to the court (pleadings), and then telling the judge their story (trial). Few people know of the many procedural mechanisms that are also available, many of which can be used to dismiss a lawsuit before the merits of the case are heard.
When I was a law student, I was impressed by the rigors of legal procedures. The rules have evolved over the decades to ensure fairness, uncover the truth and promote efficiency in reaching the disposition of a case. For example, discovery was designed to allow opponents to find out all the relevant facts before proceeding to trial. A Rule 21 (Ontario) Motion to Strike can be brought to dismiss your opponent’s case for want of a “cause of action”. A motion for summary judgment allows a party to obtain a judgment expediently in cases where there is “no genuine issue for trial”. Indeed, earlier this year, the Supreme Court of Canada in Hryniak v. Mauldin (2014 SCC 7) supported the use of this type of motion to improve access to justice. Clearly the availability of these motions is desirable, as are many of the other mechanisms available before trial.
It is ironic then, that procedures put in place to improve fairness can also be obstacles to justice when you cannot afford a lawyer.
Few SRLs understand that a proper pleading requires the inclusion of the facts to support the elements of a cause of action, or what “a genuine issue for trial” really means. I have observed that a SRL plaintiff will often find their efforts to have their day in court frustrated by having to respond to a Rule 21 Motion to Strike. They have little idea (and no guidance) on how to do so. SRLs see motions as “technicalities”, designed solely to prevent them from having the merits of their case heard. Often, their day at court is denied because they lose at such motions, and cannot afford to pay the costs against them.
How to resolve this conundrum? Rather than abandoning our important procedural standards – badly needed for the Forest Hill neighbours – we should be thinking of ways to provide better education or guidance to SRLs on some of the more common pre-trial procedures and the principles involved. For example, what exactly is a “cause of action”? How does one go about assembling motion materials? What exactly is a motion for summary judgment? A motion to strike? A guide could also explain the rationale behind these procedures (because I have seen that SRLs, like any of us, really want and need to understand why the procedure works the way it does, in order to “buy in”), and how to bring or respond to such motions.
And of course, guides are often not enough. Most people need individualized assistance at some point. In a recent case in which I acted as a litigation coach for a SRL I was able to explain what “summary judgment” really means, and help her to ascertain the types of things she needed to address in front of a judge.
I believe that we need a layer of service (perhaps on a subsidized basis) that functions with this purpose and that is open to any litigant. I see many SRLs in the courthouse who don’t qualify for pro bono help because their income is too high, but can’t afford a lawyer either. Some of them are in shock about the legal process, and simply need a lawyer or support person to talk to, but there is no such service.
Thanks Heather. If anyone else has an example of a particular legal procedure or form that you think highlights the challenges for laypersons of participating in the legal process without counsel, and which could be the subject of a blog this month, I would love to hear from you.