Self-Represented Litigants in the Courts: How They Are Shaping the Jurisprudence

Originally published on Slaw, Canada’s online legal magazine; written by Julie Macfarlane. This is the first in a regular series of columns for Slaw, written by the NSRLP team. 

What happens to a system of expert legal adjudication when in some courts, up to three in four litigants are advocating for themselves without the assistance of counsel?

The influx of self-represented litigants (SRLs) into the family, civil and appellate courts (family: 50% across the country, up to 80% in some urban courts; civil between 30-50%; appellate around 30%) is transforming the justice system. And not, as many would say, in a good way.

Judges struggle to find a balance between appropriate assistance and explanation (as the Supreme Court of Canada decision in Pintea v Johns now requires,) and not compromising their neutrality as adjudicator. Some simply lost patience, and sometimes behave in ways that are undermining public confidence in the legal system.

Opposing counsel worry that they are spending their clients’ money explaining the process to an SRL. Some are genuinely trying to figure out how to serve their client and move the process forward expeditiously and fairly. Others develop strategies for taking advantage of SRL lack of knowledge that can only be described as “sharp practice”.

To be fair, both courts and counsel are confronting questions that they have never had to consider before. Inside the guild of legal language, arcane processes and tacit conventions, lawyers and judges understand one another. Legally untrained members of the public are outsiders.

The Self-Represented Litigants Case Law Database

At the National Self-Represented Litigants Project, we began to realize about two years ago that a significant jurisprudence was being created around these questions. We successfully sought funding (from the Law Foundation of Ontario and the Foundation for Legal Research) to establish an ongoing research database for decisions regarding SRL costs, costs against them, procedural fairness issues (like judicial assistance) and vexatious litigants. Our goal is to populate the SRL Case Law Database with extensively analyzed relevant cases back to 2013, and then continue forward.

So far we have published four research reports arising out of this work, with a fifth out this fall, as well as a preliminary report on our methodology. I encourage you to read each of these, but here at a glance are some interesting takeaways, and a few important themes.

Judicial assistance in levelling the playing field?

Since the landmark Supreme Court decision in Pintea in April 2017, a number of cases have addressed how the courts discharge their obligations to ensure a fair outcome in accordance with the CJC Principles, several of which refer to and build directly on the Principles.

There have also been a number of decisions that suggest that SRLs are exploiting their position as confused, uneducated and unaware of the complexities of the legal process to ‘game’ or ‘abuse’ it.[1] Assumed to be malevolent actors, not simply someone unfamiliar with the legal system, their mistakes are “intentional” system abuse.

At the same time, there have been a number of cases in which the Principles have been deemed inapplicable to an SRL who is sophisticated and experienced.[2]

Should SRLs Get Costs?

The jurisprudence is changing in relation to giving SRLs compensation for their time in some way proportionate to lawyers. Some cases suggest measuring this by the value of their work to the court.[3] This seems like a step towards an objective standard, but does of course privilege sophisticated litigants.

The potential that a successful SRL may receive an award for costs besides disbursements is important to ensure some incentive to represented parties to settle.

Deterrence & “Punishment” of SRLs

Some decisions suggest a strategy of punishing the SRL by using substantial or punitive costs.[4] We reported in July (Cost Awards Against SRLs) that in our Database to date, 42% of cases that awarded substantial or punitive costs against SRLs also raised issues of procedural fairness – for example questions about whether the SRL understood the procedure, or was provided with sufficient judicial assistance. Substantial or punitive costs are often justified by delays caused by the SRL’s mistakes or omissions. Many of these same cases include judicial dicta describing the SRL as “vexatious” in some way but stopping short of a formal designation of them as a vexatious litigant. Once again this raises the question of intentionality when SRLs make mistakes or omissions. While delays certainly raise Access to Justice issues, this may be in some tension with ensuring that SRLs are not penalized for their lack of procedural knowledge.

More data and analysis will be available in January 2019 in our new research report, “Vexatious Litigants”.

Summary Judgment Procedures against SRLs

Our 2015 research report on Summary Judgments noted vastly increased numbers of summary judgement procedures (SJPs) in the last 10 years, almost entirely brought by represented parties against SRLs, and an extraordinary success rate of 95%.

We are not tracking SJPs against SRLs in the SRL Case Law Database, but we are continuing to watch this via the work of other researchers. In December we act as intervenors (pro bonocounsel Kate Kehoe) in an appeal on the use of summary judgment in a child protection case – here against a represented litigant, but often used against SRL parents.

 Evaluating SRL Behaviour

With the influx of SRLs into the courts, evaluation of SRL behaviour – causes, motivations, and intentionality in delays and mistakes – takes on a far greater importance. We have noticed some gendered lines of reasoning used by judges in some evaluations of SRL behaviour. Most of this relates to female stereotypes (for example, schemers, attention-seekers, unreliable reporters, manipulators, and even “treating litigation like shopping”).[5]Women SRLs are also sometimes described in terms of their physical appearance. We also notice references to male stereotypes of combativeness and aggression in some vexatiousness cases (our upcoming report, The Vexatious Litigant).

Some Themes

If these are your takeaways, what are some of the emerging themes in the SRL Case Law Database?

• SRLs are making some progress with formal recognition at the highest court in the land. Pintea set aside the formal equality fiction for the treatment of SELs and lawyers by the courts. Some of the subsequent jurisprudence has usefully clarified and expanded the Principles,
• There are also some worrying signs of regional disparity that may reflect local legal culture. For example, there is a lot of negative case law coming from the Alberta courts regarding SRLs.
• Related to this, there seems to be a risk of judges and lawyers over-simplifying who SRLs really are. We notice this in relation to the use of gender stereotypes, as well as assumptions about intentionality. One specific example is some conflation between “Freeman on the Land” a bizarre but tiny group in Alberta, with every SRL who addresses the court wrongly, or submits a laundry list of arguments, or fails to follow a particular procedure[6].
• Public faith in the justice system is being heavily undermined by the negative court experiences of many SRLs, who now comprise Canadians of every age, ethnicity, class and educational level.

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[1] Re Thompson, 2018 ABQB 87, Thompson v Alberta Labour Relations Board, 2018 ABQB 220, 1985 Sawridge Trust v Alberta (Public Trustee) 2017 ABQB 53, Gray v Gray, 2017 ONSC 5028. For more detail see “Pintea v Johns: 18 Months Later.”

[2] Clark v Pezzente, 2017 ABCA 220. For more detail see “Pintea v Johns: 18 Months Later.”

[3] John-Cartwright v Cartwright, 2010 ONSC 2263, Cassidy v Cassidy, 2011 ONSC 791. For more detail see “Cost Awards for Self-Represented Litigants.”

[4] The definition of substantial costs is 1.5 times more than (regular) partial indemnity costs; Punitive costs have been described by the Supreme Court of Canada as appropriate “only where there has been reprehensible, scandalous or outrageous conduct on the part of one of the parties” (Young v Young, [1993] 4 SCR 3, 1993 at para 260)

[5] Delichte v Rogers, 2013 MBQB 93, M. (M.A.) v. M. (D.J.), 2013 ABPC 101, SLMD v AVD, 2017 BCSC, CLMvMJS,2017BCSC799, M. (M.A.) v. M. (D.J.), 2013 ABPC 101, Ottewell v Ottewell 2013 ONSC 721. For more detail see, “When Judges See SRLs, Do They See Gender? Observations on Gendered Characterizations in Judgments”.

[6] Noted also in Professor Jonette Watson-Hamilton’s recent blog, “The Increasing Risk of Conflating Self-Represented and Vexatious Litigants” (September 17^th 2018), ABlawg (blog), online: < https://ablawg.ca/2018/09/17/the-increasing-risk-of-conflating-self-represented-and-vexatious-litigants/>.