Not De Cruz – but the SRL Case You Should Have Been Paying Attention To This Week

Not De Cruz – but the SRL Case You Should Have Been Paying Attention To This Week

Two cases came down on March 27, 2015, one in Ontario and one in Saskatchewan.

Please can the news report the significant cases (and not just the salacious ones)?

A “meaningless” (against a “judgment-proof” party) costs award in the divorce case of De Cruz v Lee (2015 ONSC 2012: www.canlii.org/en/on/onsc/doc/2015/2015onsc2012/2015onsc2012.html) was widely covered in the press and on social media this week.

The reason for the media frenzy was the graphic and saddening personal details of this Ontario Superior Court case, which culminated in a nine-day trial. Combined with the scathing words of Justice Skarica in the endorsement for costs, this proved an irresistible temptation for both mainstream and legal press (for example, www.thestar.com/news/gta/2015/04/08/judge-blasts-woman-for-immaculate-conception-tale-in-property-dispute.html www.lawtimesnews.com/201504064586/inside-story/monday-april-6-2015).

I asked the journalists who contacted me for comment about De Cruz why they felt that a case exposing the collapse of a marriage and perhaps a person’s emotional wellness was “news” – and why they were not covering a really important judgment (Hope v Pylypow (2015 SKCA 26: www.canlii.org/en/sk/skca/doc/2015/2015skca26/2015skca26.html) handed down the very same day.

Of course the details of a dispute over a road construction project are less likely to peek our interest on the front page of our morning newspaper than the sad details of the De Cruz case. But as I shall explain in this blog, Hope shines a light on the systemic barriers being raised to ordinary Canadians who are trying to use the courts without legal counsel.

So De Cruz went viral, and Hope went ignored.

In a surely hopeless effort to redress this, I am devoting this week’s blog to the story and the implications of the judgment of Chief Justice Richards of the Saskatchewan Court of Appeal in Hope v Pylypow.

Evolving rights – but what about fair process?

The important principle established in Hope is that SRLs can be awarded costs beyond their out-of-pocket expenses for their time and work on the case. It brings Saskatchewan broadly into line with other provinces (see for example Bergen v Sharpe and http://drjuliemacfarlane.wordpress.com/2013/11/30/bergen-v-sharpe-and-srl-costs-the-long-and-the-short-of-it/).

The gradual development of jurisprudence on awards of costs to SRLs is critical to restoring one aspect of bargaining equality where a SRL faces a represented party. If a represented litigant had no risk of being ordered to pay anything beyond disbursements when up against a SRL, whereas the SRL took the chance of being ordered to pay substantial legal costs to a represented party, there was a fundamental imbalance between the parties (well explained in para 57 of Hope). Chief Justice Richard’s clear thinking on this important issue is very welcome.

But important for different reasons is the three-quarters of the C.J.’s judgment which excoriates the Chambers judge who struck out the pleadings of the Hopes (a self-represented couple). This exposes the strategies being used by some legal counsel in bringing motions to strike against SRLs. It also describes the presumptive bias some adjudicators appear to show when asked to deem SRLs “vexatious”.

The motions strategy

At NSRLP we have started to notice – as have others – that where the other side is represented by counsel, SRLs are commonly brought to court by for a pre-trial motions hearing, and often to strike. A quick search in Can Lll for 2014-15 brings up 51 cases involving a SRL where summary judgment is sought, virtually all by represented parties. In 47, summary judgment is granted or upheld on appeal (our data collection on this topic is continuing).

SRLs often come to these hearings without understanding that this is not a full adjudication of their conflict – even with the new Ontario rules (below) – but focuses on the grounds for summary judgment. Even where the motion is refused, the SRL is often left confused and aggrieved.

Allowing claims without a basis to proceed is a waste of judicial time (and everyone elses’s). A motion for summary judgment allows a party to obtain judgment expediently in cases where there is “no genuine issue for trial”. The Supreme Court of Canada in Hryniak v. Mauldin (2014 SCC 7) saw the temperate use of summary judgments as a way to close down unsubstantiated suits and free up court time for meritorious issues. New rules in Ontario empower judges if necessary to “weigh evidence, evaluate credibility and draw reasonable inferences” in determining whether or not there should be a full trial. The Supreme Court sees the goal of the summary judgment process as “a fair and just result” and serving “the goals of timeliness, affordability and proportionality.”

Does Hryniak give encouragement to SRLs to fight and appeal all summary judgments brought against them, or is there a risk of this judgment being used to shut down individual legitimate claims? 

How the story began in Hope

In 2012, the Saskatchewan Municipal Board (SMB) ruled in the Hopes favour in a conflict with a municipality over responsibility for road realignment adjacent to their property. The municipality was ordered to undertake the road construction project “in a timely fashion” (CA, para 7). A second planning dispute was also resolved in favour of the Hopes by the Small Claims Court, but their recovery of overpaid fees in that case was ruled ultra vires (“beyond the powers”) of the court.

The municipality did not carry out the work stipulated in the SMB’s servicing agreement, nor did they return the overpaid fees. Clearly words were now flying back and forth between the parties in the local press. In 2013, the municipality sued the Hopes for defamation, and the Hopes subsequently defended and counter-claimed. This was the Queen’s Bench action that was the basis of this appeal.

And this is when the motions strategy began.

No reasonable cause of action

The municipality argued that the Hopes claim did not disclose a reasonable cause of action – that is, they did not present a legal “wrong” in their pleadings. Elson J. agreed that there were technical defects with the Hopes pleadings, but set out what they needed to do in order to rectify.

The Hopes refiled an amended set of pleadings.

Scandalous, vexatious or frivolous

Next, the municipality filed a motion to have the Hopes claim struck as scandalous, vexatious or frivolous (for example, lacking in substance, in bad faith). This motion was heard by a Chambers judge who agreed, accepting the municipality’s argument that the Hopes “four” legal actions were part of a “pattern” of abusive litigation (including their successful application to the SMB and their win on the facts in the Small Claims Court).

He went further to contradict Elson J’s decision on cause of action (the Hopes had left out a comma in their amended pleadings, which the Chambers judge stated meant that they had improperly pleaded, again).

Their claim struck, the Hopes must by this point have been wondering how they had found themselves in this Alice in Wonderland nightmare.

C.J. Richards to the rescue

The Chief Justice details the injustice done to the Hopes by the Chambers judgment. He stops short of calling out the municipality’s strategy in bringing these motions to strike, but he makes their arguments – and the willingness of the Chambers judge to accept and even embellish them – look like an attempt to deny the Hopes fair process.

This case provides a lens on how motions to strike proceedings brought by SRLs are being dealt with by some adjudicators, apparently acting under a presumption that where parties represent themselves are somehow by definition – rather than in fact – vexatious. The Hopes had legitimate complaints against the municipality that earlier adjudications had recognized. They had received no redress, only a suit against them for defamation (they were not the initiators of the original defamation suit).

As C.J. Richards writes,

“In relation to the cause of action in issue here, I understand (Mrs. Hope) to explain that she and Mr. Hope would not have sued the respondents if they had complied with the SMB ruling. That is, on its face, an understandable explanation for the litigation. It is not a basis for striking a claim as being scandalous, vexatious or frivolous.” (para 42)

C.J. Richards also pointed out that the Chambers judge had wrongly equated “vexatious” with no cause of action; contradicted Elson J. in saying that there was no cause of action; ruled that the Hopes committed “abuse of process” but this was not included in the respondents pleadings; and in the absence of any finding of fact, nonetheless stated that the Hopes affidavits were in bad faith.

Down the rabbit hole

This is an impressive judgment, frank and detailed, and for the Hopes perhaps has restored some of their faith in the justice system.

But the rabbit hole that they have found themselves down for the last three years is full of a lot of other SRLs. Some of the delays and injustices they experienced are the result of an immensely complex and under-resourced legal system – others are the consequence of unintentional and easily made mistakes.

But some of the delays and injustices they experience are the results of a motions strategy that imprisons them in technicalities, and leaves them and their case in the weeds.

No reasonable person would argue that a nine-day trial in De Cruz was an efficient or appropriate way to resolve that matter. Apparently the rules against scandalous, vexatious and frivolous actions did not operate to spare those involved that miserable experience.

Yet they are being used against SRLs like the Hopes who do have legitimate grievances, with the complicity of some adjudicators.

How did we get here? And more to the point, how do we find our way back?

 

 

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Comments (9)

  • sandra olson

    this same procedure is what was done to me. my name is Sandra olson, formerly Sandra carey,, and this is a paternity matter where dna test results were used, I knew the results to have been falsified, and I repeatedly set for discovery this matter,, I repeatedly requested the courts to order the full release of the file from Vancouver general hospital lab and Calgary childrens lab. no order was ever provided,, and when I actually had a discovery booked, and the rooms set I was left sitting in the court waiting for these people to arrive, while the lawyer for opposition was in a courtroom in a different jurisdiction claiming that as I wasn’t there, the case was his to be dismissed with costs. even when I went back to court, and proved I was waiting for all parties to present for discovery, the judge disregarded it all and I was declared vexatious, I was never provided with a very necessary right, the right to full disclosure and examination of the evidence. the courts of BC have much to account for. I now have a professionally produced document disputing the dna test proceudures etc of Vancouver and of Calgary. from casual observation, it appears Vancouver lab has been sharing paperwork on this case and the lab work with Calgary childrens to make everything line up. I doubt the courts will be bothered by this fraud,, they allowed it.

    April 14, 2015 at 3:47 pm
  • Allen

    Believe me, I am now starting to have faith in NSRLP. I honestly had written it off as one more distraction for the real issues SRLs face in our courts, that is until this article. I wondered does NSRLP have a clue about what we face in court? Why are they “trivialising” the issues of dishonesty and judicial abuse while laying blame on us of misunderstanding when obviously that is way more complicated an issue? But now I am relieved

    I have been put through the ringer with these same abusive strategies and NSRLP should know that once an SRL takes anybody to court, the least little issue that they next come upon with others also end up in court because these lawyers and court staff talk to one another and a simple dispute that would normally be settled is dragged out and the lawyers sensing by information form their colleagues a including many of those who work as court staff, they celebrate and force the aggrieved party to take the matter to court. Off course they know too many judges see SRLs as vexatious for having the nerve to try to represent themselves.. Those judges are usually ready to award costs against SRLs while awarding none to them

    Until we have a provision in place for SRLs to seek redress when courts bend and twist rules and laws to disfranchise the SRLs and courts of appeal are not the fairest avenue for this

    April 15, 2015 at 12:41 am
    • sandra olson

      he is absolutely correct. I have been saying this and saying this, the courts are completely corrupt. they refuse to play by the rules,, they lie to you, they send you on wild goose chases for material that is simply not needed. etc etc. in one instance in my case,, the court of appeal of BC actually TOOK MY APPEAL FILE, WHICH WAS FAXED TO THEM,. THEN KEPT CLAIMING THEY NEVER RECEIVED IT. can you believe that. I did not get to appeal my case, because the registry at the BC court of appeal refused to acknowledge receipt of my file,,, and then would NOT GIVE ME A FILE NUMBER. there were so many other acts of completely disreputable behavior. it has just been impossible for me to retain even the most basic level of professional respect for these people. the courts themselves are the criminals. I can be educated as much as you wish. when dealing with this sort of behavior. you will never succeed in being heard or receiving justice of ANY sort.

      April 15, 2015 at 3:54 pm
  • sandra olson

    I should add to this,,, I fax filed this appeal., three times.. each time the registry kept saying they didn’t have it… I had three fax receipts,, indicating they did. it was then I knew it didn’t matter how I sent this or how many times,, the court of appeal was off limits to me. I was never getting there,, and if I did, the judges would have treated me exactly the same. with no regard at all for the law.

    April 15, 2015 at 4:12 pm
  • sandra olson

    in another instance,, and this is all just with me,, imagine the rest of the srls . while I was sitting in the Chilliwack courthouse, waiting for the opportunity to “discover” the lab personell filing documents on mr wongs behalf,,, Mr wongs lawyer was in a courtroom in a different jurisdiction in Vancouver having the case dismissed because I wasn’t there. he had been served notice of this discovery as all parties were. I believe the judge in that matter was justice Dillon, she actually said,, I could not bring my matter back to court WITHOUT MR WONGS APPROVAL!!!! this is supposedly Canada, and not the 18th century where women needed the approval of a man to do practically everything. this sort of bullying and distorting of the law is still alive and well, here in the supreme courts of BC. if the courts are still wondering if we, SRLS require more education,, I believe I have had enough stuffed down my throat. I have seen corruption lying, fraud, acts of complete disrespect and disregard for the law. all coming from the courts. at one point,, I even put in one of my affidavits,,, that it was a REQUIREMENT that all members of the court act respectfully toward me,,, if I could manage it for them,, I had the right to expect the same. CAN YOU BELIEVE THEY ARE NOW TRYING TO CLAIM THE SRLS ARE THE PROBLEM!!!!!!! nerve, has never been what these criminals lack

    April 15, 2015 at 4:53 pm
  • Heather Hui-Litwin

    Hope v. Pylypow is a very important case for self-represented litigants. I am so pleased to see this decision (also see my blog http://www.litigation-help.com/hope-self-reps/.) The presumption that SRLs are by definition vexatious is unfortunately fairly commonplace. Prejudice in any form has no place in court rooms. Thank you NSRLP for highlighting this case. As a former SRL, I am glad to tell you that, yes, it does bring back some of my faith in the justice system.

    April 17, 2015 at 12:23 am
  • Karin Litzcke

    Thank you for this marvellous post. Even if this case were not about SRLs and thus highly relevant, staying up to date on case law and appreciating the implications of new decisions is one thing in law that an SRL simply cannot do as well as a lawyer can, so guided interpretations like this have tremendous value. And having it delivered in a manner that is not patronizing to SRLs is so rare as to merit special mention. Independent of its very welcome conclusion, the decision itself shares that quality. It also boosts my confidence in the courts to actually see mistakes being identified and corrected.

    I wish to quibble on one point in the blog post: the casual use of the word “under-resourced”. It is a different kind of rabbit hole to assume that the legal system is under-resourced; one it strikes me as being intellectually safer to stay out of except in specific and quantitative discussions. For example, one cannot assume the COURT system is under-resourced, even if legal services may be. But even then, the term “under-resourced” is misleading, when one could talk of limited affordability or availability instead.

    I come at this from 20 years in the trenches of the education wars, where the mantra of “underfunding” has successfully sabotaged any efforts at qualitative reform for some 100 years. My SRL initiatives are in the education realm, where I have observed that belief in “education system underfunding” has become so pervasive as to pass unquestioned even in the legal arena.

    There may well be a mismatch between demands on a system and its resources, but there are several ways to repair that mismatch other than adding money. The word “underfunding” is carefully chosen by vested interests in education to “frame the narrative,” ie to nurture the belief that the money presently supplied is inadequate to achieve the goals of education, when this is far from being the case. The language used manipulates how we think.

    The lesson for evaluating justice system funding from 150 years of public education bickering and tinkering is that adding money does not repair the mismatch between demand and resources IF OTHER INITIATIVES ARE NOT ALSO UNDERTAKEN. But more compellingly, adding money actually functions to discourage innovation. After all, if you’re rewarded for what you’re doing, why try anything new?

    Bureaucracies are constitutionally disinclined anyway to undertake quality improvement initiatives, and public monopolies in particular are so nicely buffered from outside change forces that they easily become complacent. These realities further entrench the lazy and convenient preference that any system has for pursuing more funding IN LIEU OF pursuing better practices.

    The reality is that the courts have not been rigorous at pursuing the efficient use of their resources because, well, no systems are, and because there are extraordinarily perverse incentives motivating both courts and lawyers to be inefficient. The advent of SRLs is not so much stretching court resources as competing for them against hitherto successful resource [ab]users who are loathe to reduce their intake. If one watches carefully what the source is of the “under-resourced” meme, it is primarily the hitherto successful combatants. Getting more resources into the system would spare them the pain of giving anything up while they appear to welcome the SRL phenomenon under the “Access to Justice” mantle of virtue.

    So the casual use of the terms “under-resourced” or “underfunding” reinforces the tendency to system decay (and acceptance of it) every time it is uttered and infers (incorrectly) that increasing funding will automatically improve service quality, availability, or access to justice. A different expression could promote a culture of respect for existing resources. Such a culture undertakes quality improvement first, can make a factual rather than emotional/political case for additional funding if it is needed, and then spends that new funding on initiatives that matter… such as the NSRLP 🙂

    April 22, 2015 at 3:24 am
  • NSRLP’s Summary Judgment Research Report: Finding a Balance between Process Efficiency & Access to Justice | The National Self-Represented Litigants Project

    […] case – just as the case of Hope v Pylypow ((2015) SKCA 26) – highlighted in the Report and the subject of an earlier blog – was overturned on appeal. I suppose one might say that this is an example of the system […]

    January 6, 2016 at 2:28 pm

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