We received many, many, reactions to NSRLP’s Summary Judgment Report, published 6 weeks before the end of 2015.
These responses to the Report remind us that a complex balance needs to be found between protecting a court’s and litigant’s time from unmeritorious actions, while protecting and ensuring Access to Justice.
They illustrate perfectly the complexity of moving Access to Justice forward in an era in which more and more of those coming to court have no legal counsel, and many have no idea what a summary judgment is or means.
Finding the right balance requires that we distinguish between striking out an argument that cannot succeed however expertly argued and supported – and denying justice to a SRL who has not complied with procedural requirements that they do not fully understand.
Why are there so many more SJPs?
More SJPs can be reasonably understood as the consequence of growing numbers of SRLs whose cases may be “vexatious” (so the reasoning goes) – and the impact of the Hryniak principle ((2014) 1 S.C.R. 87) which emphasizes “timely and affordable” access to the legal system. The rationale is that it is necessary to remove cases without merit that might draw time and resources away from deserving ones.
On a superficial level, this reasoning makes sense. But we need to dig a little deeper.
We posed the following questions in the introduction to the Summary Judgment Report:
“Is there a risk that applications for summary judgments could be emerging as a strategy used as a matter of rote by represented parties against SRLs? Labeling them as vexatious and appealing to the (known) concerns of judges over SRLs ‘jamming up the courts’?”
The results of our study show clearly that digging a little deeper exposes a big A2J problem here.
Our data
To refresh your memory, the research and analysis we conducted showed clearly that:
- There has been a huge rise in the number of summary judgment procedures (SJPs) over the past decade. Even after removing cases with any mention of vexatiousness – accepting those cases on face value and also accepting that SJPs aim to eliminate or reduce vexatious suits – this increase is 800%
- The rate of success in SJPs brought against SRLs (again, having removed allegedly “vexatious” cases) is 95%
- Half of the reported cases included no or minimal reasons for the decision to award a summary judgment
These data demand at minimum a long hard look at the way the courts are being used to bring SJPs against SRLs, and the response of judicial officers.
Reactions to the Report
From SRLs
The most intense and immediate reaction to the Report was from SRLs themselves.
Most of these reactions were “me too – this happened to me”. A smaller number described their own effort to bring a SJP and their lack of success (borne out by our figures).
From the legal establishment
Unexpectedly, I received a number of messages from lawyers directing me to further examples of unfairness and bias against SRLs.
One such case is Simple Pursuits Inc. v. 0842748 B.C. Ltd., and Raymond Wong ((2015) BCCA 382). In this case, summary judgment was awarded against the personal appellant, Mr. Wong, when he did not appear at a Monday hearing for which he was given notice the previous Friday. The motions judge accepted counsel’s arguments that Mr. Wong had been correctly served on Friday, had been present at an earlier discussion of scheduling, and did not have a good reason –“only” that he would have to miss work at short notice – for not appearing at the Monday hearing.
Additional facts showed that Mr. Wong did not understand court procedure (he had filed a counter-claim but no statement of defence in response to the initial claim) and had stated that he required an interpreter in order to be able to properly participate in a hearing.
Despite this, the motions judge accepted counsel’s breathtakingly disingenuous (as well as wrong in law) argument that Mr. Wong had been served with adequate notice, and ordered judgment of over $100,000 against him.
The Wong 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 working well. It would be better, however, if we could ensure that SJPs do not allow decisions to be made on the basis of SRL confusion and the exploitation of power differences between counsel and an (unrepresented) litigant.
The motions judge’s assessment that Mr. Wong’s absence at the Monday hearing was evidence of “willful and blameworthy” behavior is a stark example of the stereotypical thinking that still dogs some interactions among judges, lawyers and SRLs. Mr. Wong was doing the best he could. The legal system dishonors us when it allows a litigant to be treated in this way.
A broader trend
It has also been brought to my attention that a similar trend in (federal) civil litigation is manifest south of the border. In 2009, the US Supreme Court decision of Ashcroft v Iqbal (556 U.S. 662) brought down sweeping consequences for civil suits in the US by allowing federal judges to dismiss cases at an early stage if they assess the claim as not “plausible”.
The facts of Iqbal concerned an issue of extreme sensitivity in the US (a claim for abuse while in detention brought by a Muslim man swept up in the aftermath of the 9/11 attacks).
One well-known commentator says that Iqbal has “transformed civil litigation in the federal courts” – in the first 2 months after the decision came down it had already been cited more than 500 times (For example, click here to see a New York Times article).
Whatever its intended purpose and rationale, Iqbal gives greater scope to counsel to argue that a civil suit is not “plausible” where it is being argued by a SRL.
Finding a balance
An excellent and considered response to the Report comes in an article in the Advocate Daily written by Toronto family lawyer Erin Chaiton-Murray. Chaiton-Murray writes that:
“…the study raises concerns that those with lawyers may be using the process as a tool against those who are without, where the self-represented litigant shows up in court, is not sure what they have to do and, before they know it, they’ve lost on a summary judgment motion and they have no clue what has happened. The summary judgment process is considered an efficient one, especially in dealing with vexatious and problematic litigants. But the study shows another side of that efficiency, which sees the process closed off for some and not allowing them full access to justice….it highlights the tough balance.”
Further data collection and analysis will be very important as we move into an era in which procedures to remove cases at an early stage become more and more common. I hope that the NSRLP’s Summary Judgment Report will stimulate continuing efforts to monitor SJPs, and ensure that we strive to get the balance right while maintaining fairness for all those who come to the courts, whether they are represented or not.
This means not being satisfied with simplistic stereotypes that paint all SRLs as a “problem”, and instead striving for a more complex understanding of their motivations, intentions and challenges.
It’s worth noting that Summary Judgement is just ONE tool that lawyers have. “Motion them to death” is too many lawyer’s war cry.
Real changes will only happen, when Judges get fed up!?!?
I am one of the , oh my god this happened to me people. in one case, I was sitting in the courthouse in Chilliwack bc waiting for people to arrive for discovery, as is the natural court process. everyone had been served. at the same time, my daughters father had his lawyer transfer the file to Burnaby, and he was obtaining judgement against me based on the fact that I was not there. when next I attended court again in Chilliwack. I proved to the court that this was in fact true. while the judge acknowledged this, he refused to reverse the decision. and further, proceeded to issue a summary judgement against me despite my request to be able to examine the evidence and the witnesses. I now have a professional geneticists review of the work produced for the courts. it shows many problems with the work, in one case, it is not my daughter and so not me, in another, the lab in Vancouver is shown to be communicating with and illegally sharing data with other labs. and finally, it is shown that the hla and dna testing claimed to have been done in Vancouver, could not have been done in 1994, on a 4 month old child of approx. 6 or 7 lbs as it would not have been possible to have obtained a blood sample of 5ml necessary to have run both of these tests in 1994. it is all fraud. and it is evidence in a court of law. I would like to present this review of the report to the courts. I have already supplied it to all parties including the labs involved. there is no response, so I sent it to the privacy commission of bc, who rudely refused to order the release of any of the dna file from the lab to me. then I supplied it to the attorney generals office of bc, still no response. this is the quandary, do I take it to the court of appeal, where new evidence cannot be submitted, or start a new action, where I have now be labeled as vexatious. how do I get this report to the courts.
I don’t why you people go all this trouble an ordinary Canadian Citizen ain’t got the time nor the money to have a fair trial I know that it’s not going to change because there all getting filthy rich of these people this is just an other excuse in my case I know what it’s like to be lied by everbody and most of the lying was done by QC or criminal lawyers so if one has none and the kangaroo trial or trials are held in secrecy and the police control the media and the press along they got the human rights bought off so what can you expect.
History repeats itself just like a bunch that control Germany in the Second World War it’s all hidden and covered over instead of going through all this troble educate our kids in school about it,but it’s not going to happen when I see the surade on TV and what there doing to Mike Duffy and the millions of tappers dollars and all the rest of the crooks that steal our money in Ottowa it’s a disgrace nothing is going to change greed has taken over our justice system it’s very corrup and the biggest money racket going all in the name of the Queen it’s a disgrace what you see on TV and the Justice system just don’t care about nothing,why not have everybody have a fair trial?
The politicians knows about this but greed has also set in there also big fat pays and big fat pensions that’s what it’s all about money not justice just like the mafia no better.Larry
Just now I got a letter from opposing counsel who was instructed by a case management judge for her to go and file for Summary Dismissal of my case and if that fails to ask for security for costs.Her client rear-ended me while I waited -parked at a red light. My claim was filed by a lawyer from law firm that deals in personal injury and my case was serious enough for them to spend almost $10, 000 to gather medical evidence. They withdrew after the lawyer failed to even ask for a single undertaking on my behalf at Questioning and allowed just about every whim of an undertaking from his lawyer colleague from me. This lawyer on the other aide presented evidence in court of her writing to my lawyer from than half a year asking what is my settlement proposal. Needless to say t she got a proposal from the get go and offered about 13% of what my lawyer asked for. Let me repeat she offered to settle for 13%of what my lawyer asked for and provided medical evidence for. She had filed an application against my lawyer for delay and so they ran leaving my case. This case should not even be in court for all that is left for a trial or hearing is quantum but this so-called case management judge threw the rules of court out the window and tried to give legal advise to the trained lawyer against me an SRL. A previous judge had broken every law and the rules of court and even the Act to declare me vexatious though none of the indicia for vexatiousness was evidenced in any of my actions at any time. Well I raised hell to the CJ and I understand that he removed the crooked judge from my case as case management judge.
An SRL can be declared vexatious in Alberta if the judge does not like how that SRL parts his/her hair while lawyers get away with criminal acts including crimes such as filing false affidavits to which judges turn a blind eye. Poorly written laws coupled with lack of judicial accountability have made judges untouchable crooks
I think everyone is looking too simply at this whole abusive practice in the courts. It is time to cal a spade a spade. SJPs are used in the ever present practice of corruption in our courts and there should be consequences for it. It is as simple as that. SJPs, security for costs, striking and vexatious litigant provisions are just some of the tools the crooked judges and lawyers are using in their acts of corruption in our courts and until that is said and MADE OFFICIAL then it will continue. Right now as a matter of urgency we need a Rule of Court that takes away the powers of abuse from a single judge sitting and give it panels of senior members of the judiciary. The tools of abuse also include awarding costs and violations of people’s basic Charter rights. We should stop allowing lawyers to make pre-arrangement and secret arrangements with judges to take advantage of SRLs and even lesser known lawyers. Yes the corruption in our courst is so bad that now it is used against lesser known lawyers in favour of big law firms and more well known and connected lawyers
Our courtrooms are former day arenas. The object is to win, no matter what. Justice is a side consideration. Lawyers are saying, “what, a self represented, how easy is this, they may be able to READ the rules, but bet they don’t know we don’t have to follow them. The judge is just there to say, follow the rules now, but you can bend them, twist them, switch rules to suit your needs,etc. So what if injustice is done. As long as I win,, my billing rates can then go up. Let the public go fry. And the whole court system supports this. So the whole thing is corrupt. The court registry will transfer your file without your knowledge, deny you the right to access the file, “lose” the file, refuse to give you the file number so you cannot serve the parties. All of which what happened to me. Then I booked a room for discovery, the apposing lawyers said nothing to me about refusing to attend, but transferred out the file to another court house district, and then while I was sitting waiting for people to arrive for discovery, they were obtaining a judgement against me because I didn’t show up. Clever yes. And I proved to the judge this was done, he still refused to reverse the judgement. You know the evidence rules,, we can all read them right, but how do you compel labs to release the full and complete file without a court order, which judges will not give you. And all the rules about full and complete disclosure, dream on. Most of what you get will be redacted to their requirements. so, without the evidence, or access to it, how can you prove your case? YOU CAN’T! Now your case will be said to have no merit, and dismissed as vexatious. HOW CRIMINAL IS THIS! The lawyers and judges go home patting themselves on the back, contemplating what a good day at the office they had. The self represented litigant goes home broken and broke.