Originally published on Slaw, Canada’s online legal magazine; written by Julie Macfarlane. This is the seventh in a regular series of columns for Slaw, written by the NSRLP team.
My inbox fills up each day with messages from members of the public (NSRLP has an active public email, answered by dedicated NSRLP research assistants, but many SRLs write me directly).
It is still not well understood that the vast majority of SRLs are still looking for and extremely desirous of legal help. In my 2013 study, this figure was 86%. Similar results are reported by studies in the US, England and Wales, Australia, New Zealand, and Northern Ireland. All these studies also found that by far the most significant reason for self-representation is lack of funds, or exhaustion of available funds (half the SRLs you meet).
If your mind is going to that defiant SRL you met last week in court who told you they didn’t want a lawyer, please think about this for a minute.
How many people (who are already feeling powerless) will admit to being short of cash? Is defiance really a reliable indicator of financial viability in the face of legal bills? And how many people who have already spent $50,000 on legal services and now have to self-represent because they are out of funds do you suppose will think that this was good value-for-money?
How is this serving the public interest?
The meta-message that underlies the calls for help that come in every day to the NSRLP is how can we trust the legal profession to serve the public interest – the so-called “bargain of self-regulation” – when up to 80% of people come to court without lawyers because they are unable to afford, or continue to afford, to pay for legal services?
Or when the legal profession in Ontario and British Columbia continue to stall and block the provision of affordable services for individuals other than lawyers? Chastising the public as if it is a small child and the legal profession its parent: “why know better, trust us.”
When the possibility of self-interest in blocking competition is obvious to anyone with a pulse.
How does the profession serve the public interest when it is exclusively responsible for investigating complaints against lawyers and disciplining them – and when information about the outcomes of complaints brought against lawyers by members of the public is hidden from public view? Isn’t this also a conflict of interest, I am asked over and over again?
Ordinary Canadians everywhere understand that the emperor has no clothes here. They can see an inevitable tension and likely conflict between the role of the individual lawyer to uphold their clients’ interests, on the one hand, and as protector of the public interest, on the other. It’s time to accept that this is how most members of the public think about this issue.
Consumers of professional services in the Internet age no longer accept the conflict of interest that is manifest in allowing powerful monopolistic professions to regulate themselves.
It’s over
When the emails ask me – how can this be OK? – I do not know how to respond other than to say, it is not. Because I now find it to be indefensible.
In England & Wales and in Australia (especially in Queensland and New South Wales), similar public outrage at exactly the same things has produced a range of experiments with alternatives to self-regulation.
What Richard Devlin and Porter Hefferman picturesquely described as “rumblings in the peaceable kingdom” of the Canadian legal profession back in 2008, have now reached the a sustained roar of public disapproval. It is well past time to act.
A public belief in the legal profession to regulate itself in a way that is fair and transparent and protects public interests rather than protecting their own will never return. This is no longer fixable.
I no longer see a feasible alternative to or a plausible argument for the continuing self-regulation of the legal profession. I would encourage readers of this blog to join me in declaring this publicly.
I feel passionately about the profession I have given my working life to. There are many wonderful lawyers out there. I know lots of them. Their reputation too is being trashed by our institutional myopia and defensiveness on this issue.
Lawyers who truly care about the future of their profession should declare their willingness to look at alternatives to self-regulation.
What replaces self-regulation and would it be any better?
This question – along with cries of “traitor”! – has often closed down discussion in the past, but cannot be allowed to paralyze us any longer.
The end of self-regulation does not mean it never worked, or that improved models of self-regulation (for example the addition of an independent Commissioner here and there) might not make marginal differences.
But marginal differences are not enough. We need to rethink our assumptions and reach for new ideas – and there are lots out there. We need empirical data that tests different models, including but not limited to joint court/ profession regulation, court/government/profession regulation, or no regulation at all (the market model, fast becoming a default: look on Craig’s List). Models that experiment with separating licensing from discipline processes. Or permitting partnerships among lawyers and other professionals. Among many others…
The Utah Supreme Court “regulatory sandbox” is by far the most impressive example of this grounded approach in practice. Having established a new branch of the legal profession (Licensed Paralegal Practitioners, also known as Limited Licence Legal Technicians in Washington State) in 2015, Utah’s Supreme Court has now launched a new regulatory body, under its supervision, that will advance and implement a risk-based, empirically-grounded regulatory process for legal service entities.
The types of providers anticipated include software companies developing online legal resources, para-professionals in not-for-profits offering advice in their area of expertise – imagine eviction, immigration, benefits – or accounting companies offering legal services as part of its overall service package. Participating in the “sandbox” as a pilot requires each services provider to collect and share data with the regulator that identifies, measures, and assesses potential consumer risk.
If we were to do this in Canada, either province-by-province or better still as a national co-ordinated action plan (with timelines!), we would have data that could be used to make decisions. We would finally have something to show the public when they ask if anything is ever going to change (and I would finally have something practical and concrete to tell the SRLs who write us every day in despair).
We could stop having debates in which people assert their certainty about all the stuff that “won’t work” and instead have discussions based on real experiences and consumer input. It would enable us to develop new regulatory models for what Utah calls “consumer-facing legal services …targeted at the risks posed to the purchasers of legal services.”
The public at large and SRLs in particular no longer believe that the regulation of legal services by the legal profession is about protecting them and their interests. And please: the issue is no longer whether or not they are correct or even fair in this assessment. It’s over: the argument has been lost. Let’s move on and make a plan to protect the future of credible legal services.
I agree that the lack of funding plays a major role in the success rate or the lack of: but that’s not the complete picture!
The “LEGAL SYSTEM” or if you prefer the “THE LEGAL PROFESSION” ( lawyers, court staff and especially JUDGES with a very few exceptions…emphasis added, by applying RULES OF COURT SPIN etc. ) blatantly redirect “SELF DIRECTED LITIGANTS” case arguments towards “PROCESS” and not “SUBSTANCE” of the key complaint.
I personally have been before 15 Justices and submitted my case to the Supreme Court on TWO occasions and the REGISTRAR i.e. THE GATEKEEPER stopped my concrete substantive direct evidence in it’s tracks from being heard before a SCC justice.
CONCLUSION: THE APPLICATION OF DISCRIMINATION AGAINST “THE SELF REPRESENTED LITIGANT GROUP” by the “LEGAL SYSTEM” or the “LEGAL PROFESSION” if you will?
Example: At one of my hearings I reiterated the main issue or “The SUBSTANCE” of my case which was “FRAUD”and The Justice SCORNFULLY RETORTED WITH “WE’VE BEEN THROUGH ALL THAT” in other words: “I don’t want to hear about that anymore, I have my own agenda!”
As far as the CJC is concerned. The CJC ought to be abolished as they exclusively operate as THE GATEKEEPER for the Judiciary!! Unless of course they are forced to deal with cases brought to their attention by” LEGAL PROFESSORS” or Provincial and Federal Justice Minister such as that which was done against “keep your knees together” ROBIN CAMP! My perception of this case was to justify their (CJC) existence by throwing a few crumbs out to the public at large. What have they ever done for THE SELF REPRESENTED LITIGANT???
Alex, the question actually is what have they ever done for the public? It really makes no difference whether you have a lawyer or not. I had one of the best lawyers in the business at the labour board and the adjudicator just dissed him: He got up and went to the other lawyer and right in my hearing with my lawyer sitting right across form me he told her what to submit to him including what argument to make. He had my lawyer identify everyone who he is connected with that was sitting at the hearing. Remember it is a public hearing. He broke every rule, every principle then issued a bogus decision that I am using to embarrass all of them. Even the court joined the band-wagon. Last week I made the appeal of the decision that pretty much tells me I should have stolen my employers money and help others to steal it if I wanted to keep my job for daring to tell the board what was happening is insubordination and confrontation. They breach my contract over 10 places and is making a fool of themselves. I will never win and I know but I hope they will be stressed to death.
We need to stop talking about legal representation is the problem. The problem is crookedness in court and solving that will solve every problem. We have too many crooks for judges so no one is afraid to go rogue. We need to organise and confront the roguse an dget them out but they sure know how to tie up our lives so we have no time
One comment in two installments
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Which labour board were you before? I don’t believe that individuals can expect to be accorded due process by any of them, but I’ve built a case that I think will ultimately have an impact regarding the conduct of the BCLRB and the courts.
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We’ll make more progress by recognizing the opportunities to connect nominally separate issues. Right now there is attention being paid to the issue of former judges returning to the practice of law. It isn’t true that an individual leaves behind their identity as a lawyer on appointment to the bench, and there is compelling evidence that sitting judges are cultivating opportunities for themselves post-retirement. Most recently, and rather amusingly, there ‘s the report of Quebec Chief Justice Duval Hessler informing those present in a courtroom that on retiring this coming April she intends to set up shop as an arbitrator.
To date sitting judges have been accorded an open licence to engage however they wish with parties who routinely appear as litigants. We the people aren’t even granted the right to be informed about these engagements. There is a speech of which I have a copy that I still haven’t gotten around to posting online. It was given by B.C. Court of Appeal Justice Carol Mahood Huddart to an annual meeting of the BC Council of Administrative Tribunals. The title, “Know Thyself: Some Thoughts About Impartiality of Administrative Decision-makers From an Interested Observer”, is itself revealing. That’s Interested, not Disinterested. I discovered that speech after she and two other BCCA judges conducted a hearing that I was subsequently told by the court registrar had not been recorded. I had faced counsel for three parties in that hearing (for net odds of six to one), and the experience was made extremely painful for me. They overturned what I had won in the lower court and thereby gave the BCLRB the ticket to cancel a hearing that had finally been scheduled. Would that hearing at the BCLRB have taken place if by some miracle I had prevailed for a second time in court? I don’t know. These people work together. There has long been an entire team of former labour lawyers sitting on BC’s superior courts. Former BCLRB Chair, Stephen Kelleher, is one.
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If you can’t access that speech by Madam Justice Huddart, I’ll share it with you by email. Just ask the NSRLP team for my email address.
I was before the one in Ontario. Never in my wildest dreams. If they were bad I can tell you the court is worse. They literally told me I should have kept quiet and let others steal my employer’s money and that doing my job of minding my employer’s business makes me insubordinate and confrontational. I just laughed at them this past month and let them know I reserve the right to be confrontational and insubordinate to thieves
A lawyer begged me not to go to court of appeal but I am on my way
Anyone who still thinks the crookedness we face in court is because we need a lawyer just take a read here
http://pridenews.ca/2019/02/08/response-article-discusses-absence-diversity-canadian-judiciary/
Allen, you have basically reiterated what I was saying about the “Legal System’s” attack on “Process” to deflect the “Substantive” evidence in your case.
It is true that unless you have a lawyer who is a member of the “members only club” you will receive the same treatment that is used against SRL’S who are without a doubt a “disadvantaged group” and are commonly targeted by the “members only” club of Lawyers, Court staff and Judges. On the aspect of “PROCESS” it is clear that all “vexatious litigants” are declared as such on the basis of “Abuse of Process”.
I agree with the comments posted by Alex Clark. My experience in family court and with the CJC can only be described as abhorrent; to the extent that as a victim of what appears to be perverse injustices, including alleged fraud, en masse, was used against me and I was accused of being a “frivolous, vexatious litigation” and accused of having committed an “abuse of process” when my evidence demonstrated that I was the victim of perverse injustices, fraud, frivolous, vexatious litigation, abuse of process, breach of duty of care, etc.. This blatant “victim blaming” is so perverse, it is not to be believed. My case should be taken up by the NSRLP as an example of the perverse injustices against a litigant, while represented and self-represented. It’s a travesty most Canadians would not believe. Had I not experienced it first hand, I would not believe it. Any litigant in the family court arena should watch the documentary “DIVORCE CORP.” to understand the abhorrent process that exists here in Canada. See link … https://www.divorcecorp.com/
Thanks Marci,
In a nutshell, the sooner the critical mass of judges stop seeing themselves as divine and SRL’S as nuisances, vexing or the scourge of their comfortably appointed lifetime tenure, the dismal success rate of SRL’S will continue. This conduct is being permitted to fly in the face of the bedrock of democratic justice to infinity…
encouraging outlandish bad faith and lies in our Courts to prevail over truths!
I still cannot wrap my head around how all these empty headed persons are getting appointed to our Bench when there are way better capable persons
All is not lost if we believe!
Guarantee of Rights and Freedoms
Rights and freedoms in Canada
1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in its subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
Equality Rights
Equality before and under law and equal protection and benefit of law
Affirmative action programs
15.(1)Every individual is equal before and under the law and has the right to
the equal protection and equal benefit of the law without discrimination and,in particular,without discrimination based on race, national or ethnic origin, colour religion,sex,age or mental or physical disability.
(2)Subsection(1)does not preclude any law,program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race,national or ethnic origin,colour,religion,sex,age or mental or physical disability.
In law, is important to take a first principles fact based approach rather than engaging in telling people
theories and fiction that ignore and or fail to address the root causes.
In my opinion, the root cause in Canada is a flawed judicial selection panel that attracts the most corrupt who
appoint the most corrupt from a pool of what is most of the time, the least suitable lawyers to be judges.
In Ontario, the lawyers chosen to be judges are often notorious for their bias in society and predictable
as to being seen as willing to make political decisions rather than legal decisions.
When judges fabricate evidence , appellate court judges see their mission to engage in protecting that fabrication because they too, believe in first principles approach that relies upon denial and an assumption that Judges would
never break an oath. Their second principle is to protect the legal profession, which encourages blatant fabrication of evidence
by lawyers in front of judges who will knowingly accept and plagiarize pure fabrications.
Their third principle is to assume that no one has a right to fairness which cannot occur in a Canadian court without
a lawyer who can call out another lawyer who fabricates evidence.
What the legal system needs first is accountability because right now, judges and lawyers are above the law and
in reality we have a lawless society.
Hello Roger Townsend,
I cannot agree with you more. Indeed, in my last written submissions to the Ontario Court of Appeal, starting from paragraph 317, under the subheading “The Flaws of Judicial Appointments in Canada” I put into the record my views on the judicial appointment, which is accessible at http://www.tinyurl.com/koba29-2
Koba
Well said Roger, and all this is allowed due to the sham conduct of the Canadian Judicial Council [CJC] who do nothing in addressing judicial misconduct unless they are forced by irrefutable evidence against Judges.
Solve the A2J problem by bringing about a method for affordable legal services to be manufactured by lawyers. Then the NSRLP could become the best lawyer-referral service in Canada, able to bargain for reduced legal fees in exchange for significant volumes of referrals. Then it could have a very large impact on the problem of unaffordable lawyers.
See: “Unaffordable Legal Services’ Concepts and Solutions” (SSRN, pdf., November 7, 2018); at:
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2811627 .
Hello Ken Chasse,
Good that you raised this. However, I observe some people are also skeptical about the competence of lawyers. Otherwise, I would like to help people obtain some unbundled legal services including legal advice for $24.95 a month under a personal legal plan. Those that are looking for that kind of services may subscribe to that services at http://www.tinyurl.com/ls-srl
I would suggest that people read the contract and, only if they are satisfied, subscribe to that services.
Koba
Why don’t you tell us what this service provides. I am yet to see one that provides anything
…almost too ill today to even comment …The Law Societies as regulators…and the Justice System at large… have literally made 1000s of us…sick. #FaithInLawSocietiesNoMore
E.
I was shocked to learn that no SRL has challenged the Canadian and provincial Human Rights Commissions about their exclusion from the protected groups. How did the current protected groups (national origin, physical disability, mental disability, source of income, sexual orientation, pregnancy, etc.) get their status?
For myself, I currently have a case in which SRLs must paid 100% of the cost of trial transcripts (such transcripts cost $6,500 for a 2-week trial that an Appeal Court Chief Justice had acknowledged to be very costly for the average citizen) upfront or I don’t have the right to appeal a civil division decision. Clients who have a lawyer don’t have this problem as their lawyer has a credit amount deposited with the Transcription Services Section of the Manitoba Justice Department which to draw on. Manitoba is the only province that has this stipulation. Other provinces permit SRLs to pay a reasonable deposit with the balance to be paid at a later date. That doesn’t prevent them from filing a notice of appeal within 30 days due to being poor.
In late January 2020, I will have a Queen’s Bench Court judge review the Manitoba Human Rights Commission’s denial of my request to have SRLs officially recognized as a protected group. (I do wish that some groups would support me as interveners as I will take this all the way to the Supreme Court of Canada.) Wish me luck!
Hello Veteran SRL,
I live in Ontario. If you like, I can prepare and send an affidavit in support of your case. I wonder what you would do after taking the case to the Supreme Court of Canada and how you would deal with cost orders, if any.
I wish you a very good luck!
Koba
i wish to congratulate you on noticing how the members of the judicial system who you thought were there to assist you,, are really just there to stall and create chaos, We also have noticed that the hand that is proferred as help,, can often just be a hand out of the way. In any case, the evidence is the primary consideration for accuracy of judgement, If the evidence is disregarded, frauded, or incomplete, then the judgement will be wrong, and does no service to the law, What i have found in my case, and i have noticed in a good many other cases of the self represented, is that the evidence requirements of disclosure, examination etc that are really there to protect the accuracy of it, are disregarded, dismissed, and instead of dealing with this issue, the courts, are following the same course of obstruction of justice as donald trump, create chaos, label people PERSONALLY as vexatious, as a bother, and so make the issue of the accuracy and reliability of the evidence, a non issue, The problem, really is not the evidence, it is US, Once they get that done,,they throw us out the door, and never look at our matter again, This is the consequence of a failure of the courts to respect the rights of the public, We have the right to have our evidence examined when we say it is frauded, fully disclosed when it is not, and to have the courts refuse to rule unless and until, these elements have been met, Instead, we have no lawyers, because no one can afford them, then when we, the self represented get to court, instead of a helping hand to obtain justice, the courts are the proferred hand to the fast track out of there, The label of vexatious, So now,, justice is not being done,, and it is not even being seen to be done,
I have known ever since I came to court that lawyers are incapable of regulating themselves. I have a complaint about every lawyer and judge that I have come across. I’ll just share one example.
Lawyer could not calculate child support or spousal support correctly. She said I owed 800 spousal support. After wasting everybody’s time and giving my ex visions of a lottery win, spousal support was 0. Of course I ended up paying 6,000 in fraudulent spousal support that i will never see before I got it changed. So I filed a complaint and it was dismissed.
To add insult to injury, this lawyer then packages all my complaints and sends them to the CEO of my company and basically says “Just thought you might want to know what your employee is doing during working hours” Of course I was doing no such thing. The great thing is that my company just gave me the package. Since when is this allowed in lawyers code of conduct?
I was pleased to see Julie mention accounting firms. What I have learned is lawyers and judges know nothing about finance. A friend of mine showed me a trial transcript where a lawyer said and I quote “I’m not very good at math so I checked my numbers about 500 times” My experience is the standard level of competence for lawyers is to not be good at math. And these are the people we allow to calculate child and spousal support?
I’m thinking about sending some financial lessons to Julie so she can post it on NSRLP. Hopefully lawyers and judges read it. They sure could use a whole lot of financial education.
Hello Veteran SRL,
In your message, you mentioned:
“I was shocked to learn that no SRL has challenged the Canadian and provincial Human Rights Commissions about their exclusion from the protected groups. How did the current protected groups (national origin, physical disability, mental disability, source of income, sexual orientation, pregnancy, etc.) get their status?”
It was not quite right. I raised it before the Human Rights Tribunal of Ontario. I also mentioned about that in a comment in the past. I thought a mere claim that self-represented litigants belong to protected grounds may be a big jump and may not work very well. Therefore, I raised that the applicants before the Human Rights Tribunals belong to protected grounds; that as marginalized as they are, they are unable to afford to hire a lawyer and that is the reason why they become self-represented litigants; and that since protected grounds are factors in the adverse impact of having to self-represent, all of the barriers related to self-representation should be accommodated up to the point of undue hardship. Under the Ontario Human Rights Code, a claim of analogous ground is not usually made although such claim is usually made under section 15 of the Canadian Charter of Rights and Freedoms.
The Human Rights Tribunal is very slow in moving my cases. It issued a Notice of Intention to Dismiss my case as falling outside the scope of the Tribunal’s jurisdiction, for which I provided a response. However, a decision has not been delivered yet.
I also have a case before the Federal Court of Appeal, where I argue that the practice of ordering cost against human rights claimants violates the section 15 rights of the charter.
I wish you a very good luck!
Koba
You raise a serious point of “public interest” SRL’S need to up their focus on Sec. 15 (1) & especially para (2) where it is specific to “disadvantaged group” discrimination!
Thanks Julie for writing this. A long ago, in a comment to one of the access revolution blog, I mentioned that self-regulations of medical profession and legal profession do much harm to the public and they should be replaced by public regulation like, for example, England did. At that time, I felt I was alone with this thought. So glad to see many other people also have the same view.
Great article! My first experience with self representation was in front of a politically recommended judge in a Chilliwack BC Small Claims Court. Court staff made numerous, serious errors in the processing of the case. In fact the errors, and later comments, were so serious in nature they indicated political interference in what was supposed to be an independent neutral process. I was threatened with arrest and confiscation of my recording device if I were to record the proceedings. The court no longer provides transcription services. The judge refused to answer questions as to why there was no transcription and why his staff threatened me. He and the government lawyer laughed at my misfortune, and seemed to think the entire process was funny. I wasn’t allowed to present my case, and he dismissed it. As someone with a severe learning disability it took a huge amount of effort, time, and money to get to court. All wasted in my opinion on a rigged process with a pre-determined outcome. The mountains of hard physical evidence to prove my case meant nothing.