In our new report from the SRL Case Law Database (the “CLD”), we explore trends in legal decisions regarding “vexatiousness”, a term that is sometimes applied to self-represented litigants (SRLs) and in some cases results in restricting their court access.
In the last 6 months we have been working hard to increase the number of cases in the CLD – over 350 cases have now been analyzed and added to the database, and many more are in process. Nonetheless this report is described as “interim” because there is more to come when the database is brought right up to the present time (this data comprises family cases up to 2017 and civil cases up to 2014).
However we are already seeing a number of trends in the case law that we believe are important to highlight. These include an overlap between cases in the database which have been been flagged as raising “procedural fairness” issues (where an SRL has made mistakes which appear to be a direct consequence of their lack of knowledge and familiarity with the process, despite best efforts) and those in which they are formally designated as a vexatious litigant. As well, the relationship between CLD cases involving disabilities, substantial or punitive costs, and vexatiousness raise concerns about conflation between intentional process “abuse” and genuine confusion and mistakes, which we have drawn attention to before (for example in this earlier blog). This report provides more evidence pointing to this problem.
Another major finding of this report is the noticeable use of judicial language suggesting generally “abusive” or otherwise inappropriate behavior by an SRL, even where they are not formally designated as a vexatious litigant. These cases were identified using a search strategy that looks for cases involving SRLs that use the language of vexatiousness, but which do not result in a formal VL order. We have coined a new term for these cases: “vexatiousness lite”. We present here some interim data on the apparent impact of this “vexatiousness lite” discussion on judicial reasoning (for example, in making larger than usual costs awards against SRLs), and how often the same case appears to raise issues of “procedural fairness”.
Finally, we have also examined regional distribution of cases involving both formal vexatiousness and numbers of “vexatiousness lite” cases. Despite much similarity in the relevant Rules among provinces and territories, there are some nuanced differences in the way judges approach and apply these.
As always, we welcome all comments and reactions to this research report. Please note that we will produce a final report on the topic of vexatiousness when the CLD is complete and up-to-present, hopefully by the end of 2020.
The SRL Case Law Database Project is financially supported by the University of Windsor Law School, the Law Foundation of Ontario, and the Foundation for Legal Research. Thanks to all our funders.
Many commend great judges and lawyers for their efforts in our justice system, but the NSRLP worls to provide access to all which makes justice real!
How might I contribute from my experiences to this report?
Hello Julie, thank you for reaching out. Please send your written contributions to this report to our gmail account and we will review. representingyourself@gamil.com. Thank you.
In R. v. Power, [1994] 1 S.C.R. 601 it states:
“Where there is conspicuous evidence of improper motives or of bad faith or of an act so wrong that it violates the conscience of the community such that it would genuinely be unfair and indecent to proceed, then, and only then, should courts intervene to prevent an abuse of process which could bring the administration of justice into disrepute. ”
The courts seem to view their procedures and practices as only a means to keep the assembly line going as fast as they can. So its no longer about justice or the law or even the Charter or the truth: Its about speedy efficiency. That’s one reason why things feel “vexatious” to them.
That’s an improper motive.
In R. v. Jacobs, [1971] SCR 92, 1970 CanLII 143 (SCC) the lawyer for the defense did not show up because his secretary forgot to tell him. And the Crown asked for a dismissal of the defense appeal, which the appeal court granted. When the lawyer explained everything, the appeal court determined then that case had not been tried on its merits, and recinded its dismissal of the appeal.
The Crown objected in the Supreme Court of Canada, which ruled that the case needed to be heard on the merits, stating that Jacobs was entitled to this as a debt of justice.
SO many self represented people are owed a debt of justice as our cases are not tried on their merits.
Things we can do to not give them fuel: lawyers for hire are emotionally detached…after all, its not their lives, livelihood, future, reputation, quality of life and family on the line.
But ours is, and its hard for us to be emotionally detached. Or often even calm.
That’s what they hold against us: It’s painful for us. We react.
Absolutely true
Sylvie
Why do so many SRLs state the same issues they have with judges & lawyers. Is it because these SRLs actually know what is really going on & the judges & lawyers hate being caught & expose time after time . Then the judges use the vexatious litigant as a form of punishment & or to discredit the person so everyone else thinks what they say about judges is not true or conspiracy theories so do not believe these people . Perhaps the NSRLP could put together a list of what the SRLs are saying about judges & or Lawyers ? Perhaps the patterns will prove these so called conspiracy theories are actually true .
So what are the SRLs that have being punished by judges with restrictions orders apposed that the Jonsson v Lymer decision state should not be . How do we get these restriction removed so they can finally get their actions to trial ? Like having to pay court costs before they can access the courts . or having to hire a Lawyer to file documents when they could not afford a lawyer in the first place. What about security of costs ? If a person could save $500. per month it would take a person 110 months or 9.1 years to save the $55,000. How about $200. per month = 275 months or 22.91 years . How can these high security of costs be deemed fair ?
Look what Chief Justice of the SCC has to say . “Access To Justice is not just a fundamental right; it is a basic human need.” Chief Justice Richard Wagner Yet many of us SRLs are being denied our fundamental rights & basic human needs .
On the other side of thing’s, I believe that the system is only as good as the people running it. The rule’s however are there, we self-rep’s must do better in our effort’s to express ourselves in Court if we expect to impress the one’s who judge us.