NSRLP’s Summary Judgment Research Report: Finding a Balance between Process Efficiency & Access to JusticeNSRLP
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.
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
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.