Putting the Brakes on Summary Judgments Against SRLs

Putting the Brakes on Summary Judgments Against SRLs

At NSRLP we were thrilled to see the Ontario Court of Appeal decision in Khan v. Krylov & Company LLP (2017 ONCA 625) last week.

The Court firmly put the brakes on the use of summary judgment procedures – here Ontario’s Rule 2.1 – to eliminate actions that are inadequately pleaded by SRLs.

The judgment states:

“Rule 2.1 is an extremely blunt instrument. It is reserved for the clearest of cases, where the hallmarks of frivolous, vexatious or abusive litigation are plainly evident on the face of the pleading.” (para 14)

In Khan, the Court of Appeal is saying that just because pleadings drafted by someone without legal training may not argue clearly, or offer all the relevant evidence, or make the case in the most artful or logically consistent way – that doesn’t mean they are an abuse of process.

Of course, Khan is unlikely to be the final word on this issue – there have been hopeful signs before (e.g., Hope v Pylypow). However, after 3-4 years of sitting on the sidelines watching courts across Canada introduce procedures enabling summary judgments –  purportedly to combat the “scourge” of SRLS – it does appear to us that finally the monumental misjudgment of the basis of the actual problem has been recognized.

Our research

At NSRLP, we have been concerned for many years about the use of summary judgment procedures – including the much simpler Rule 2.1, which was introduced in July 2014 – to eliminate cases brought by SRLs.

In 2014, our Summary Judgment Research Report (featured in CBC’s The National’s documentary, The New Litigants) showed that even after cases involving anything approaching “vexatious” or “abusive” behavior by the SRL were removed, the success rate for counsel-brought motions for summary judgment was still an amazing 95% (Canada-wide figures, from cases reported in Can Lll).

The same exercise for counsel-brought Ontario cases against SRLs brought under Rules 20 & 21 produced a success rate 88%.

We acknowledged at the time that,

“…an increase in SJPs [summary judgment procedures] may simply reflect the growing number of self-represented litigants (SRLs) in the courts, and a felt need (seen in legislative and judicial initiatives) to strike actions that do not have merit at an early stage. Growing numbers of SRLs in civil and family courts raise considerable challenges for the efficient use of available justice system resources…”

Nonetheless we thought that these figures were extremely worrisome.

The fact that 50% of reported cases did not provide reasons, or provided minimal reasons, made it difficult to discern just why the motion for summary judgment had been granted. Is this acceptable because the losing party was an SRL?

At the time I remember thinking, “please, could someone other than our kitchen-table top operation (our summary judgment research report was brilliantly researched by a volunteer who was also a court clerk, and a third year law student, under my supervision) pay attention to this trend?”

The reaction

The attention paid by the legal establishment to the 2014 Summary Judgment Research Report was not quite what I had hoped for. I was taken to task by colleagues. Was I questioning the ethics of the profession? Was I suggesting (yes) that this was a conscious strategy to defeat SRLs?  It seemed to them that the real reason was that there were too many SRLs in the courts and SRLs, well, they were a nightmare. Et cetera.

The rest of the context

When the National Self-Represented Litigants Project  began in 2013, with the incredible support of Windsor Law and later the steadfast support of the Law Foundation of Ontario, then-Project Coordinator Sue Rice and I set  just one major objective: to convince the legal profession and the judiciary that the vast majority of SRLs were not in the courthouse because they wanted to be, or because they were having a good time, or because they wanted to sow anarchy in the justice system – they were there because they could not or could no longer afford to pay for the services of a lawyer.

The stubborn stereotype

I started to blog very early on about the conflation of a fraction of SRLs in the legal system with pre-existing mental health problems, or the even tinier number who are so-called Freemen on the Land, with the majority of SRLs. I read list after judicial list of characteristics that apparently made an SRL part of this unhealthy group and thus subject to a “vexatiousness” designation or summary judgment. They included things like writing too much, advocating too zealously,  odd or irrelevant attachments, multiple methods of emphasis including highlighting and underlining, or just that the judge looks at the pleadings and concludes “I can’t make heads or tails of this.”

These “sins” permit a court to dismiss your case summarily? Or label you in such a way that you can no longer access the courts?

Then there is the problem of exaggerated intentionality, a meme for any rigid stereotype.

Is an SRL who files papers late in the day perhaps disorganized and scattershot, or an anarchist? A person with a pre-existing psychiatric disorder? Or just a regular person overwhelmed –  as most of us would be – with trying to advocate for himself in an unfamiliar and often hostile environment where the insiders sneer at him. Or, just a really fed-up, exhausted, stressed-out person?

The death of deference

And then there is the change in the way that many, if not most, personal clients regard lawyers in 2017, compared with 10 or 15 years ago.

There is a willingness – sometimes arising from mistrust – to question the lawyer’s judgment, just as the SRL did in Khan v Krylov (which focused on a dispute over a payout following a settlement).

My research interviews with clients for the last 15 years and now with SRLs reveal a growing chasm of mistrust between lawyers and their clients. The causes are described with a high degree of consistency as a combination of failures by lawyers to listen, to explain, and to convince clients that client interests will always come first.

As the Court boldly stated in Khan, “…the pleading alleges that the law firms conspired to defraud the appellant.  As distasteful as this allegation might be, it is not entirely implausible.” (paras 10 & 11)

This is the highest court in Ontario acknowledging that SRLs have to be taken seriously and at face value. Otherwise there is no Access to Justice.

Postscript

It is impossible for me to conclude this blog without pointing out to Michael Myers that his assertion to the Law Times (commenting on the award in Khan of $3000 costs to the SRL) that “self-reps don’t incur costs…self-reps don’t have legal bills” is sadly a perfect example of the disconnect between how lawyers see the world, and how their would-be clients live.

Legal bills are not the only type of “costs”. If you are an SRL and have to go to court, it’s a fact that you have to take a day (or more) off work. And that’s after being up all night prepping.

FYI, there is a growing jurisprudence on fair costs for SRLs. We shall be releasing a research report on our work on this as part of our larger SRL Caselaw Database project (begun with volunteer Cindy Freitag, and carried forward by a team of five law students) later this year. We shall also be releasing results from our search of family cases and “vexatiousness” (both described and designated) to show trends across the country.

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Comments (12)

  • Wael Badawy

    This is great.
    However what we see in Alberta is the opposite extreme.
    No summary judgement were awarded for any srl.
    And all summary judgments against srl.
    The young new jugdes are very familiar and working with those counsels who they are basically friends with the counsels from the past. The senior judges are 100% against giving any award towards srl on a summary judgement basis.
    We have been looking for many of the judges comments for about three years.
    These comments do not make it through the transcript or the record as they are filtered out by the transcript management service.
    We record these comments through our volunteers who either listen to the record or attend the hearings.
    These comments are stunning.

    Good luck to any srl.

    August 14, 2017 at 11:17 am
    • sandra olson

      I commented on the odds against slrs, in a comment in the Vancouver sun news. One person commented that he had never heard of this, and demanded to know where I got this information. I have found the legal industry generally keeps to itself anything that is not a big hurrah for them and what they want to do with slrs.

      August 14, 2017 at 3:26 pm
  • sandra olson

    this is what I have been waiting for,, and needing,,, in order to once again try my best to approach the court with my new evidence. I was summary judgemented. and declared vexatious. This issue was paternity of my child. that is not a vexatious issue. The question has always been the reliability of the dna testing involved. I have an expert report that shows the fraud and lies, involved in all of the material. What little I could get. The labs refuse to release any real material. and despite my many requests to the court for an order for release of it. I got now help at all. Maybe now, finally,, I have something to go with. And yes, the snide rude comments of the court staff, judges, and outright abuse from judges and apposing lawyers, has been absolutely traumatizing. I have no faith at all in the judicial system, and none at all in mankind. This is the sort of case I was waiting for. thank you

    August 14, 2017 at 12:10 pm
  • Brian Chutskoff

    Professor Macfarlane’s comments made under the above heading: “THE DEATH OF DEFERENCE:”

    …..”As distasteful as this allegation might be, it IS NOT entirely implausible.” (paras 10 & 11)

    HOPEFULLY, will permit – the (ALLEGED) cited “Leading Precedent” in the Alberta Jurisdiction with regard to a judicial finding of “Vexatious Litigation” (AND therefrom striking, BY SJ, an SRL’S CLAIM in legal-professional negligence) AND the CONCURRENT SJ declaration, on a Judicial Motion alone, (without prior notice to the SRL) that the same SRL was a “Statutory-Vexatious-Litigant” – to be SET-ASIDE; on the grounds that the alleged cited precedent represents a “miscarriage-of-justice” based on both procedural unfairness & a misapprehension of the evidence before both the ABQB & the ABCA which were reluctant to consider therein the SRL Chutskoff’s allegations, which are equally “distasteful” to those in “Khan”

    Chutskoff v Bonora, 2014 ABQB 389 (CanLII), , retrieved on 2017-08-14

    August 14, 2017 at 1:21 pm
  • allen

    I was declared vexatious because the judge was vexed that I dared open my mouth in court or dared make the claims I made even though I presented evidence of everything I claimed. One lawyer even complained that my claim about the sex assaults I (and mom) endured in a certain nursing home and that I witnessed done to others there was “embarassing”. The judge(s) did not care that they left my mom in the hands of these cavemen Canadian Boko Haram kidnappers and that she was separated from her family and given less status that a mutt in this country. I (and her grand kids) have not seen her in 10 years and I could go on and on. One of the saddest encounter I had was when a female judge snickered at the hearing about the sex assaults we suffered. Not one of the male judges actually smiled but the female snickered and asked other lawyers including those from the attorney General’s department ( I claimed Charter violations among other reasons), she asked them
    any of you have anything to say to help Mr so and so ( the lawyer for the cave men who kidnap women in Calgary) of then with the help of the government who even pay and reward them to do this kidnapping and Boko Haram behaviour

    The judge declaring me vexatious never declared a single one of my cases vexatious so only the good Lord knows what made me vexatious and he even contradicted himself by saying the only “saving grace” was that I did nothing out of malice> It should follow that a “saving grace” would save me but not in this judge’s court. He even over ruled the decisions of other judges including those in supervisory positions to him and took over cases that were under control of case management justices

    As a result of this wrongful and abusive declaration I became unemployable and had absolutely no right or protection as a person in this country. Vexatious litigant provision is supposed to be rarely used but instead these incompetent abusive judges made it a sport to damage people’s credibility and reputation and often to protect criminals. That is a total mockery of justice. They and the government ought to be ashamed of themselves. What is more the court should NEVER be given such broad powers and only got it because the elected government has abdicated their duty to us; it used to be the power reserved for the legislature but now individuals have the power to abuse others in this manner

    It is time we get together and champion our cause for just about every declaration made in Alberta was done contrary to the law let alone all the other grounds to challenge this practice

    August 14, 2017 at 9:50 pm
    • allen

      @Brian Chutskoff, let us be clear Alberta courts do not find or declare “vexatious litigation”; They always improperly find the litigant vexatious not the litigation and even the university law professors in Alberta dive down this road without thinking. They are all off base and makes you wonder how they come to their decisions. It seems neither academia or judiciary in Alberta understands the legal notion of procedure

      All the declarations of vexatiousness in Alberta that I am aware of were improperly done and the court in every instance failed to even serve the required notice to the attorney general. Need I point out that the legislation itself is unconstitutional? The use of the word “improper ” make sit so and that is a settled matter but because it is aimed at SRLs no one cares about the un-constitutionlity of this piece of legislation.

      I have to say htough that the saddest part of all this is when one “victim” thinks only their case is unfair and even point to others and saying theirs is justified

      August 14, 2017 at 10:06 pm
  • Tda

    This is a small step in the right direction. I’m a self represented litigant in Nova Scotia and maybe it’s because I really hit the books hard that I’m a bit tougher than the average litigant. I don’t know. The one thing I have experienced is the sort of notion that a self represented litigant is automatically vexatious, otherwise, wouldn’t this person be represented by counsel? Unfortunately, access to lawyers is not democratic. There’s that inherent “Oh, self represented. Well let me pat him on the head, give him a few minutes before I tell him he’s wrong”. Some judges turn off and just wait for you to finish. You can feel it in the air. So I command it. The disappointing thing is costs. However, self represented litigants are entitled to them. My time isn’t as valuable as a $400 an hour lawyer but it has a value and I intend to seek payment for it. The courts need to wake up to the fact that representing yourself is not something we wish to do, it is something we must do. There is so much more to be done.
    For instance, to complete my claim for damages the court typically needs expert evidence. I’ve contacted actuaries. They don’t work with self represented litigants. Experts in general don’t work with self reps. There are so many barriers. I’m hoping more judges begin to shift like I’m seeing out of these recent Ontario cases.

    August 15, 2017 at 12:36 am
  • sandra olson

    it seems to me, that with this judgement, and with the excellent research on the issue of summary judgements against slr’s, that someone Preferably a lawyer, would be willing to take the issue of the constitutionality of this vexatious litigant declaration, and summary judgements, to the high courts for resolution of it. It is more then clear to us all, that the courts are refusing to follow court procedure, and targeting large numbers of the public with this attack JUST BECAUSE we are self represented. In order to get the public itself, out of the courts. I realize it might not be a popular move within the legal field, but then, doing the right thing rarely is.

    August 15, 2017 at 3:26 pm
  • Chris Budgell

    I think I can shed some light on this issue, because most of the long trajectory of litigation I’ve pursued has been contending with and challenging what I’ve called “gatekeeper devices”. The term “summary devices” will do just as well.
    .
    This link – https://www.canlii.org/en/bc/#search/jId=bc&sort=decisionDate&id=Budgell&origJId=bc – brings up eleven of the formal results of that trajectory. Add the term “vexatious” to that search and it finds just one (number 3) of those results – https://www.canlii.org/en/bc/bcsc/doc/2007/2007bcsc991/2007bcsc991.pdf.
    .
    That judgment has eleven references to Rule 19(24), which I’ve just discovered here – http://www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside/168_2009_01#rule9-5 – is now Rule 9-5.
    .
    To get a sense of why that judgment is worth a thorough read just read the final paragraph.
    .
    I think that a thorough reading reveals that both the judge that presided in that case and the one she liberally cited displayed total disdain for me. In fact I’d use a slightly stronger word – contempt.
    .
    And of course I still don’t accept those outcomes. The Labour Code provision (section 13 – itself a gatekeeper device) that I was challenging was in fact altered. No one has claimed it wasn’t. No one has stated that the change wasn’t “substantive”, and effected in a manner that bypassed the proper authority of the Legislature, and created no publicly accessible record. Those are the facts. How could such facts not support a claim that needed to be fully adjudicated?
    .
    I’m going to see if I can find a copy of the letter that Attorney General Wally Oppal sent to me that convinced me I needed to proceed with that action. I’d like to share it with the public.

    August 16, 2017 at 5:31 pm
  • sandra olson

    today there is a story in the Vancouver sun news, about tyranny. when you are stripped of your constitutional rights, when you lose your right to a fair trail WITH A COMPLETE REVIEW OF ANY AND ALL EVIDENCE THAT STANDS BEFORE YOU. we are on our way to losing our democratic freedoms and will be living in a state of tyranny. To those of us who never had any fair access to any courts simply because we are self represented, we are already there. That is why I ask again, who will speak up about this and stop the courts themselves from stealing our rights and destroying our freedoms. Doing nothing is not an option. The courts are reluctant to take responsibility for their behavior. That is also not an option. Who among the legal community is willing to speak up to appose this trend in our legal system.

    August 18, 2017 at 12:21 pm
  • W B

    I read through the decision and I can not find the section of the analysis that says
    In Khan, the Court of Appeal is saying that just because pleadings drafted by someone without legal training may not argue clearly, or offer all the relevant evidence, or make the case in the most artful or logically consistent way – that doesn’t mean they are an abuse of process”.

    here is the link that I found http://www.ontariocourts.ca/decisions/2017/2017ONCA0625.htm

    I need this for a brief due filing on Friday morning.

    Any information will help

    August 30, 2017 at 11:37 pm
    • sandra olson

      did you find this passage yet? I could use it as well. thanks

      September 4, 2017 at 12:35 pm

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