Summary Judgments – the backstory that may shock you

Summary Judgments – the backstory that may shock you

About a year ago, a NSRLP lawyer-volunteer began to regularly observe hearings taking place at a busy Toronto courthouse that included SRLs. She reported that she was seeing a number of procedural motions against SRLs. In these cases the SRL was usually bewildered and perplexed by what was happening – they had often come to court expecting to present their case for trial – and instead found that they were suddenly facing the dismissal of their action.

And at the NSRLP, we began to hear from SRLs who described efforts to dismiss their case using a Summary Judgment Procedure or SJP.

We were concerned that SRLs often do not understand legal rules and procedures, but were attempting to represent themselves because they could not afford to pay for a lawyer to do so. While their actions and behavior might have been considered to be vexatious or an abuse of process by system experts, this may have been the consequence of their lack of understanding and general desperation rather than a deliberate effort to disrupt the system. Furthermore, these cases were clearly raising a crisis of confidence in the justice system for these individuals.

In April 2015, our attention was brought to a decision by Chief Justice Richards in Hope v Pylypow (2015 SKCA 26)[1], which I blogged about[2]. Chief Justice Richards was highly critical of an earlier Chambers decision to strike the pleadings of a SRL couple finding “no cause of action” – and further critical of the conflation the Chambers judge seemed to make between a finding of “no cause” and “vexatiousness”. 

We began to wonder – was an application for summary judgment emerging as an intentional strategy used by represented parties against SRLs, labeling them as vexatious and appealing to the concerns of judicial officers about SRLs “jamming up” the courts?

And if this was becoming a strategy, how successful was it?

 

Recognizing the context & the variables

We realized that one response might be that an increase in SJPs simply reflects the growing number of self-represented litigants (SRLs) in the courts, and the need to strike actions without merit at an early stage. Growing numbers of SRLs in civil and family courts raise challenges for the efficient use of available justice system resources which must be balanced with a commitment to access to justice, as described by the Supreme Court of Canada in Hryniak v Mauldin[3].

We also recognized that procedural changes that have taken place over the last decade – for example, the change in the cost consequences of a failed application for summary judgment in Ontario following the Osborne Report – might also affect a ten-year review of SJPs.

But we decided that we needed a closer look at the data[4]….and this is what we found (you can read the full report and see all the numbers here)

 

A huge rise in the use of summary judgment procedures against SRLs

  • The number of SJPs being brought against SRLs rose from 5 in 2004 to 61 in 2014. This is a percentage increase of 1160%.

 

SJPs brought against SRLs are almost always successful

  • In 2014, where SJPs were brought by represented parties against SRLs (almost all the cases), the “success rate” (judgment granted or appeal against summary judgment dismissed), was 96%

 

Digging deeper

This was shocking, but wait. Perhaps, we wondered, the 2014 cases we had found described intentional vexatiousness and process abuse, and should indeed be removed, in the spirit of Hryniak?

We next reviewed each of the 65 cases we found in 2014, and removed each case that included either a formal declaration that the SRL was a “vexatious litigant”, or any indicia in the judgment hinting at vexatiousness or “process abuse” (for example, multiple filings in this case, or previous actions on similar points)[5].

This review left us with 45 cases in which there was no reference to vexatious behavior or process abuse – instead the summary judgment decision focused on the merits of the arguments, the technical completeness of the pleadings, and the sufficiency of the evidence being presented by the SRL.

  • In this “sanitized sample”, the increase in summary judgment applications from 2004 to 2014 is still 800%.
  • Where SJPs were brought by represented parties against SRLs (almost all the cases), success was still almost universal: 98% of applications in this group succeeded[6].
  • Almost half of the decisions as reported – which include appeals against an order of summary judgment – include no or minimal judicial reasoning on the summary judgment issue, making further analysis difficult.

 

Another check on the data: focus on one jurisdiction

Phew, we thought, it still looks bad. But wait a minute – there are so many different forms of summary procedure across the country. Maybe we should reduce the potential variables and focus on just one set of SJPs and see if the data look any different? We chose Ontario’s Rule 20 & 21.

Here’s what we found:

  • Applications under Rule 20 & 21 by represented parties rose by 93% between 2004 and 2014
  • In 2014, where these were contests between represented parties, 61% resulted in an order granting summary judgment
  • Also in 2014, where motions were brought by represented parties against SRLs, 88% resulted in an order granting summary judgment

 

What does all this mean?

Broadly speaking, the data confirmed our worst fears. We were concerned at the outset that SJPs might be being used against SRLs in a way that took advantage of their confusion and lack of knowledge and skill.

The results suggest that SJPs are increasingly being used successfully against SRLs. And given the results we see even when we remove cases formally or informally referencing “vexatiousness” or “process abuse”, this suggests that many cases are being struck because of technical errors that are unintentional and could be addressed if SRLs had more assistance.

Or – perhaps most worrisome – that the SRL stereotype rather than the reality of “vexatiousness” in a particular case is being used, rather effectively, by counsel to appeal to judges to order summary judgment against a SRL. Without more complete reasoning offered in many of the decisions, this is difficult to assess.

 

Recommendations

There are four recommendations in the full report. These are for:

  • Better monitoring of SJP decisions and outcomes
  • Further and better judicial education informed by this data
  • Enhanced assistance for SRLs who are presently often “ambushed” and unaware of what is happening in a SJP
  • Consideration of whether the strategic use of SJPs against a SRL raises questions of ethical practice for lawyers.

As always, we welcome your comments, suggestions, and reflections. As courts across the country consider modifying existing SJPs or introducing new ones, there is a lot more research that could be done in this area. We offer our new report as a starting point only.

[1] www.canlii.org/en/sk/skca/doc/2015/2015skca26/2015skca26.html

[2] https://representingyourselfcanada.com/2015/04/14/not-de-cruz-but-the-srl-case-you-should-have-been-paying-attention-to-this-week/

[3] 2014 SCC 7, [2014] 1 S.C.R. 87

[4] This research was conducted by Julie Macfarlane with Katrina Trask and Erin Chesney

[5] We could not of course appraise the fairness of such conclusions, and simply accepted them on face value.

[6] We counted partial success as 0.5 in our calculation

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Comments (7)

  • sandra olson

    this is exactly what was done to me. out here in Vancouver. it was a joke to me then, and the judicial system is apparently still carrying on in this criminal manner. what a croc

    November 16, 2015 at 9:48 pm
  • Allen

    Dr Julie, I have written to the Alberta legislature time and again asking them to do this research and for them to see the abuse meted out top SRL’s. Not only do they use SJPs but they also use orders for security for costs that judges smirk and issue to stop SRLs in their track. The order usually says if the money (usually huge sums, in one instance for me the lawyer asked for $65,000 the judge granted $24, 000 despite being told I was a pauper) is not paid within 30 days at most the case is dismissed without need for the other party to come back and apply). Oftentimes the lawyer does a property search and woe be unto the SRL who owns a house of a car. The judges put liens on them. The Alberta Court of Appeal treats an appeal in this instance as entertainment. I could tell you stories that would make your hair stand on end.

    Not only do the SJs get issues routinely but even when there is a hearing, regardless of how well and how much evidence the SRL presents, the judge just twists the law-just like judge Robin Camp did in that sex assault case. They ignore the rules of Court and do all manner of ill to SRLs. One recently told me the welafre office could have been clearer about what they wanted me to provide to them but that I am smart and intelligent and should use my smarts and intelligence to figure out what they wanted. Welfare had stopped my cheque and my prescription benefits for a whole year-almost killing me and when an ambulance had to take me to the hospital despite my having my benefit card, they refused to pay the ambulance and my name got sent to collections. The judge went out f her way to cover up all the corruption. In court she mouthed to the lawyer what argument to make and after her foolish unreasonable decision, I applied for her to rescind the decision and recuse herself from my case , she ordered the clerk to unfile my application and hurriedly signed a bogus order for the Attorney General lawyer

    In another instance a witnessed a judge tell al poor lady who had already paid 3 lawyers and was then on her own trying to get her house from her original lawyer who literally stole the woman’s house, I heard a Master tell her how the Limitations Act says her claim is filed late. That was a lie for that Act exempts cases involving real estate matters. Needless to say the judge upheld the master’s foolishness about limitations act and with that the judge helped to steal the poor woman’s house. I could tell you stories

    Let me put it this way for you the behaviour of judge Robin Camp is typically all Alberta judge’s behaviour. That is the norm

    November 16, 2015 at 11:12 pm
  • Allen

    and doctor Julie, assistance for SRLs is a waste of time. What needs to be addressed is crookedness on the Bench. In the same case with the poor lady whose house the gang of judges help the lawyer to steal, she went with one of those “assistance lawyers” and when the lawyer started to make argument for the lady the same thiefing judge who ultimately sealed her fate, he simply just ignored the lawyer and started addressing the SRL directly. off course the poor SRL had no idea that she should refer the judge to the lawyer and say she is representing her, SRLs usually are eager to speak top judges not knowing they are the enemy

    In today’s court, most cases are fact base and even the dumbest SRL can relate the facts to the court. The SRL usually is not versed in legalese and when they tell the facts or make argument using everyday language that says the exact same thing the legalese says the judges pretend not to understand ( in some cases they actually may not understand, I find them often very unaware of basic legal principles) so they take the easy and safest way out by saying the one word that works for them-dismissed.

    It is for the court to come to legal conclusion but when the SRL is not able to argue legal conclusion the court throws out their case despite not doing that to well trained lawyers. When we get the crookedness off our Bench we will have a justice system

    Did you know that in Alberta since September last year just about every appeal to the Alberta Court of Appeal – the appellant has to get permission from the court to file the appeal and often the judge whose decision is being appealed has to agree. There are serious access to justice issues in Alberta. Lie I say Judge Camps behaviour and thinking is the norm and they account to no one. Any SRL who can properly navigate the process is declared vexatious in Alberta

    November 16, 2015 at 11:23 pm
  • Allen

    Also Dr Julie just look into costs against SRLs and you see the big business it is for lawyers. Then maybe you want to look into who is making these orders for dismissal against SRLs. I am sure you will find that more often than not the person acting as “judge” has no authority to make such an order: For instance single judge sitting at an appellate court (where only a panel can dismiss a case); or a case management justice where the rules clearly forbid a case manger to dismiss a case without consent of all parties ;or a master who has no authority to dismiss the case. Most SRLs think everybody sitting up there is a judge with authority to dismiss their case

    You will only need to look at the situation in Alberta

    November 17, 2015 at 2:03 am
  • evert-jan Steen

    Having been alerted to above’s findings, while preparing for my own SRL’s claim against BC’s Minister of Justice/ Attorney General’s Office, slated for a Feb.12/16 Summary Judgment in Victoria, ensured I have a solid, clear case, with precedent samplings and exhibits, I look forward to experience how the Supreme Court Judge will lay out his/her ‘Argument.’

    Intending to purchase a transcript and publishing it on my blog, I must confirm there will be a court reporter present.

    January 3, 2016 at 11:54 pm
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