Originally published on Slaw, Canada’s online legal magazine; written by Julie Macfarlane. This is the second in a regular series of columns for Slaw, written by the NSRLP team.
We are hearing more and more often from SRLs about “sharp practice” when they face a lawyer on the other side of their case.
There are many common elements to these reports, which I find to be largely credible. SRLs believe that their unfamiliarity with the legal system, combined with the tendency of some judges to assume the worst of them – that their cases are without merit, or that they are “vexatious” and abusing the process when they make honest mistakes and misjudgments – is being exploited by counsel on the other side as a matter of strategy.
The challenges of working opposite an SRL
To be fair, a lawyer facing an SRL encounters a situation they have not been trained to deal with, and may find difficult. I have seen responses that include reaching out to the SRL; panicking about their own client thinking they are “helping” the other side; trying to avoid communicating with the SRL because of fears of being called as a witness or otherwise compromised; or cynically exploiting procedural rules, including those on vexatiousness and claims for summary judgment.
But however sophisticated and intelligent the individual SRL, and however experienced (or not) the individual lawyer, there is a huge disparity of power and knowledge between them. Some of this flows from a difference in substantive familiarity, but much also comes from a legal culture that assumes that when lawyers speak, what they say is more credible and important than a member of the public.
It is all too easy for me to imagine that lawyers might sometimes believe that their duty of zealous advocacy to their own client means that they should take advantage of an SRL on the other side. This not the case – “sharp practice” against other lawyers has long been frowned upon and proscribed in the Rules of Professional Conduct – and I cannot see why this duty should be any different when the other side is an SRL. From the Ontario Rules:
7.2-2 A lawyer shall avoid sharp practice and shall not take advantage of or act without fair warning upon slips, irregularities, or mistakes on the part of other legal practitioners not going to the merits or involving the sacrifice of a client’s rights.
Further, the evidence suggests a dangerous trend of taking advantage of SRLs that is bringing the profession into disrepute.
What types of complaints about “sharp practice” are we hearing?
The types of complaint we hear (and in some cases I have reviewed case correspondence) from SRLs about opposing counsel cover a wide range, but there are some clear themes. Some of the most common complaints include:
- Rudeness and incivility. This may sometimes be “professional brusqueness” – familiar to the lawyer but not to the SRL – but is often experienced as feeling disrespected and dismissed.
- Bullying communication. An apparent effort to bully the SRL into dropping their case by the tone of letters and other communications from the other side. This may take the form of dismissive verbal comments, or written communications that adopt a bullying and belligerent tone.
- Counsel unwilling to engage in a serious settlement discussion. Of course, lawyers sometimes complain with some cause that SRLs will not discuss settlement with them, but then lawyers are trained (and have a professional responsibility) to explore settlement or compromise.
- An assertion that there is no ethical duty owed to an SRL. I have seen correspondence asserting that the lawyer’s ethical duty is to the court, and that they owe none to the SRL (this is an overlap with “bullying communications” above). While this may be true in terms of liability, it is most certainly not true in terms of the (e.g. Ontario) Rules of Professional Conduct.
- Misleading information given by the lawyer to the SRL. Whether intentional or not, I have heard many examples of lawyers giving an SRL misleading information about court dates, whether they have received service of documents, and nefarious references to “rules” that do not exist.
- Refusing to use the SRL’s preferred mode of communication. For example, serving the SRL at home during the day when they have explained in advance that they would not be able to accept service because they would be at work, and have requested another agreed mode of service, such as email.
- Inadequate notice given under the court rules (unfortunately we have observed the court allowing this when the other side is an SRL).
- Change of venue. For example, a lawyer moves the venue of the hearing to a courthouse that requires significantly longer travel for the SRL.
- Perhaps most disturbing are reports of lawyers using applications for summary judgment and / or claims of “vexatiousness” as a default whenever they face an SRL on the other side. This strategy exploits the willingness of some judges to dismiss SRL cases as without merit in an extraordinarily high proportion (95% of cases in our 2015 study), and allow claims regarding “vexatiousness” that conflate SRLs who intentionally behave badly with the merely confused (also clear in the case law).
What happens when SRLs complain about the behaviour of opposing counsel?
A big beef of SRLs is that no formal complaint can be brought about the behaviour of opposing counsel until the proceedings are over. This gives SRLs no immediate recourse for actions or behaviours that they may feel are highly unprofessional and may be damaging their case.
Once the case is over, an SRL can complain about the behaviour of opposing counsel to the Law Society of Ontario (LSO) (apologies for the fact that all my data here is Ontario-based, it would be great if others would check out the numbers in their own jurisdiction).
Since we hear so many complaints from SRLs about the behaviour of opposing counsel, I was curious to find out how they fare when they bring formal complaints forward to the LSO. David Wright, the chair of the Law Society Tribunal, graciously looked through the 150 decisions the Tribunal rendered in 2018 for cases in which SRLs were among the complainants and found as follows:
- A handful of decisions in transactional cases (e.g. property deals) where a complaint was upheld against a lawyer who had not made clear to an unpresented party on the other side that they were not their lawyer and could not represent their interests (for example).
- There were 3 cases that involved an SRL as one of multiple complainants in relation to a lawyer’s litigation practice.
- In Law Society of Upper Canada v. Pascuzzi, the lawyer was found to have failed to adequately respond to communications from a self-represented party to the standard of a reasonably competent lawyer, resulting in a reprimand.
- In Law Society of Upper Canada v. Colin Cameron Leon Lyle, three SRLs were among a number of complainants, including former clients and colleagues. The Tribunal upheld the complaints of the SRLs that the lawyer, acting as opposing counsel, was rude, threatening, and both verbally and physically aggressive towards them. For this behaviour and the other complaints brought against him, the lawyer was suspended.
- Finally, in Law Society of Ontario v. Ejidike, a lawyer was found to have lied to a self-represented litigant. For this and multiple other incidents of misconduct, her licence was revoked.
This quick analysis suggests that very few SRLs make it to the hearings stage with their complaints. Of course, Tribunal hearings are a small fraction of the total number of complaints against lawyers received each year at the LSO. The more interesting question is what happens at the initial complaint and investigation stage.
The LSO received a total of 6,500 complaints in 2018 and referred 1,200 of these for investigation, at which point 25% were closed with a caution, and 35% closed because of “insufficient evidence to proceed”. 150 were subsequently sent to the Tribunal for a hearing. I have spent nearly a month asking for statistics that show how many of these complaints are from SRLs, and what happens to them. I have sent many emails and made numerous requests to different people I have been directed to. My final answer: we don’t have that information.
What Can Be Done?
- It is very important for regulators to be tracking how SRLs fare in their complaints processes. Whatever arguments might be made about SRL complaints being “spurious” (a reflection of the assumption that their cases are “without merit”), these numbers will tell their own story about how much public confidence we can have in these processes.
- I think a case can be made for an SRL Ombudsperson inside each regulator, whose exclusive brief is to investigate complaints by SRLs against opposing counsel. I think that it should be possible for such complaints to be brought while a case is still proceeding. An Ombuds process seems especially appropriate here because it includes the potential for enhanced understanding and education for both parties, as well as the possibility of discipline (perhaps feeding into the hearing process) for egregious and repeated bad behaviour by counsel.
- There is a need for leadership by the regulators on this issue. This means sending a clear message to members that “sharp practice” by counsel against an SRL on the opposing side will not be tolerated, is not professional, and will be taken seriously as a disciplinary matter.
Many lawyers are adjusting their practice to work civilly and constructively with SRLs on the other side. Sometimes this brings extra challenges, but this particular manifestation of the SRL phenomenon does not require deep structural changes, just better training and a positive mindset about working with the public. It is important to address the problem of “sharp practice” at an early stage, and assure the public that their complaints will be treated seriously.
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Find practical guides and information resources for those representing themselves in court under the SRL Resources tab at the top of this page. See here for our Directory of Professionals Assisting SRLs (which lists lawyers and other legals pros from across Canada who provide unbundled or other lower cost legal services). Explore our website for further research, resources, information, blogs, and podcasts that may be useful or interesting to self-represented litigants, and those invested in access to justice.
I am facing sharp lawyering tactics in a case where RBC, who were apprised of fraud and forgery in their documentation, brought an action to foreclose to shut me up. Their lawyers have refused to answer communication and to produce documents and now are trying to unilaterally adjourn my Motion to Strike their Claim. They propose to bring a Motion for Summary Judgment to be heard currently with the Motion to Strike on a new date, in an attempt to confuse and muddy the waters with multiple proceedings.
I am bringing a motion for an order to prohibit RBC tactics, raising the doctrine of abuse of process which allows the court to prevent proceedings from being used to abuse. So far the only two Ontario cases in this regard are: Gammie v. Town of South Bruce Peninsula, 2014 ONSC 6209 (CanLii) at para [57] and Niagara North Condominium Corp. No 125 v. Waddington, 2007 ONCA 184 (Canlii) at para [21]
If someone knows of any other preferably leading cases where such a tactic of adjournments and layering of proceedings to prevent a fair hearing is prevented using the doctrine of abuse of process (or any other rule or doctrine), please let me know by reply comment. BTW Rule 37.16 does not apply because RBC has not brought a motion yet…they are just delaying and threatening to bring a Summary Judgement to muddy the waters in my Motion to STrike RBC’s claim.
I would say, if the evidence used in the foreclosure is bad, and you can prove it attack it!
If it were me, I would move to examine whoever swore the materials and expose the “forged” documentation. Should be enough to delay summary motion, and might prevent it if you truly can prove forgery.
If you can prove the lawyer knew the evidence was forged, definitely worth a report to the law society.
Be very careful you have good grounds to allege fraud though, the penalties can be pretty severe.
In my case they forged my signature on a day when I did not even live in the province and on a date 15 days before the agreement was to be made for a mere $50,000. Then they put a $275,000 charge on the title using all those fraudulent documents that I had never seen until I found them after asking for a copy of my bank file.
I recommend that everyone request a copy of their bank file, even if you don’t need it right now. You will be surprised at what you find. And do a parcel register search…thousands of people are finding their properties were transferred by lawyers to others without their knowledge and false mortgages were put on the titles without their knowledge or consent….awaken!
Don’t waste your time complaining to the Law Society…that’s where the rot starts. The Law Society of Ontario owns LawPro the insurer of the lawyers. They will do everything possible to never payout, even when the Judge in the action says the lawyer missed the limitation period.
We need a system of government where the government does not appoint Judges, where the Judges are elected. That’s the best way to get rid of rot before it infects the whole bushel.
I have suggested so many times that the process include a part that requires notice sent out to every litigant who appeared before judges and/or with lawyers about to be appointed /promoted and trust me they would behave their little selves and act properly since there would be a comuppance day and the for them in their carreers
I suggest as many of you as possible take a look in todays Vancouver sun newspaper, Feb 26, 2019 page A3 strike brewing over crippled legal aid system, makes for a good read for what is likely in the lawyers estimate of the self represented in the court. If you have a suggestion,, please add your voice, makes for a real good read at the end of it, And if they do go out on strike,, we will be the only people left for the criminal judges to HAVE to deal with, that will make for some fun,
HI, the opposing counsel in my case is just disgustingly prolonging my case and at the expense of my child’s healthy development. I literally just want it all to end.
The answer is well known. The Law Society put on a pretense of holding lawyers accountable. In 22 years I have never see or heard of a case where a complaint from a self represented litigant resulted in action against a lawyer.
Lawyers can commit criminal offences against the administration of justice such as providing false information to the court that is the exact opposite of reality.
Judges in turn rare say anything. I recall one judge bawling out a lawyer for lying to the court but nothing happened.
While judges turn a deliberate blind eye, they effectively encourage criminal offences against the administration of justice.
Judges also engage in the same conduct. Fabricating reasons for decision that are the complete opposite of the facts, or decisions for which no evidence existed however their decision contains justifications based on complete fabrications of facts for which no evidence existed.
Simultaneously, they strike pleadings, make cost rulings, such as ordering that no further materials can be filed until the costs are paid , security for costs, vexatious litigant orders that effectively permanently bar any application on any matter including seeking consent to seek leave or to have the order overturned.
To add insult to injury, any appeal is often heard by the same judges in the same court but with a different name, “the Divisional Court”.
When the matters go to the Ontario Court of Appeal the matters are rarely successful and its obvious that the Court of Appeal sees its role as one to protect the reputation of lower court judges and to protect lawyers.
Awesome summary Roger!
In fact, I have proof that a lawyer tampered with a witness because the witness testified about it at court. The Deputy Judge dismissed the witness tampering by saying that the witness was not a shrinking violet!
The Deputy Judge in another action was caught on audio colluding with the defendant lawyer and LawPro (owned by Law Society) lawyers on how to get rid of me.
While the ‘system’ seeks to blame self-litigants for delays, etc., in fact what the ‘system’ is upset about is that all their fraud, coercion, deceptive practices, witness tampering and ‘anything goes’ commerce has been exposed.
The fact that the Criminal Code is changed specifically to let frauds off the hook should tell us everything we need to know about who is to blame….and its not self-litigants.
Interesting page.. I’m involved with an srl claim in Alberta with many similiarities as the comments that I’m reading here. Where can I find out more about the changes to the Criminal Code to allow fraud Grace?
Thank you
Start a listserv and see. I have my hands full dealing with badly behaved judges and lawyers
Yes Roger, you said it exactly. Those are the judges I want to see removed and/or kept off the Bench
I am currently dealing with two lawyers in Ontario who turned up in court presenting a 2012 vexatious litigant order against me as their defence. They are so rude to the point of stinkness. I have asked them to show me the “Federal Civil Code” that allows them to use an order restricting my access to court/tribunal in Ontario based on a specific order regarding courts in Alberta. The case in Ontario and any other filed after the VLO in Alberta is not described in the order except for the requirement for leave in Alberta). These lawyers try to use the VLO to shame SRLs. I once said to one so we have “fat shaming”, “slut-shaming” and now we have SRL shaming
The two stupid lawyers in Ontario asked the court to dismiss my case because of the un-related order in another province. Another thing I have discovered is that these lawyers are so dunce they conflate litigiousness with vexatiousness (not too litigiousness is unreasonable suing others not just suing the many people who give cause for you to take action: Unfortunately many judges are just as daft and injudicious). Having a VLO against you is worse than if you are convicted of murder or fraud and it is for a life time ( a real life sentence). Murderers and fraudsters have a set time when their sentence ends but not someone declared vexatious and especially those of us who were unfairly so declared and or done so bacause of incompetent and/or dishonest judges who do not know the difference between a dog and cat.
I am thinking I saw somewhere in the LSO publications that lawyers should not even mention a persons’ criminal conviction-even for murder let alone use it as basis for a judge to punish them or deny their rights but it is the norm for that to be done in civil cases to those who seek justice. As well they have created an imaginary Federal Civil Code
No Attorney General in this country seems to understand that a VLO makes you a person without rights or basic legal protections. In my case the crazy judge himself said I never did anything out of malice and how that was a saving grace. Only strange thing is I got no saving grace (Show you how stupid he was). How can we complain to judges (or law societies) about bullying from lawyers when they are even worse bullies?
Horrifying story. VLO’s are obviously sharp tools prone to accident and misuse.
I shudder at the thought of being on the receiving end of such an order.
I would ask you though – if what you say is true (and I take it as such), why wouldn’t you seek review of that order, whether by the ONCA or SCC?
Me, I would not, COULD not rest until that injustice was addressed, consequences be damned.
Access to the courts is fundamental, and I’m not sure it withstands a Charter challenge. I’m not so sure you can be denied the right to present that challenge either.
I was denied,,, I filed an appeal three times with the court of appeal,,, I had fax comfirmation sheets, each time I contacted the court of appeal clerk, requesting the file number NEEDED to file and send out documents to opposing parties, each time the clerk insisted they had received NO FILING, Obviously they were lying,, but this is one of the ways the court system itself stops appeals, or anything you attempt to file, it is corruption, but it works, I have no answer as to what to do with court staff who do this sort of thing, And you know they would never try this sort of thing with lawyers
This is much the same as happened to me. I filed my appeal to Divisional Court regarding the case decision that involved the Deputy Judge condoning witness tampering, and who failed to stay within the pleadings and created novel defences for the defendants unknown in law.
My appeal to Divisional Court met with an extremely bizarre set of efforts by the court to block my appeals of the lower court travesty of justice. The Judge never looked at any of my materials, decided that two defendants had been released from the litigation by me, when on the file were the Registry filings of Notes in Default.
But, it gets worse. The Divisional Court Judge decided that I had not shown a bona fide intention of Appealing because I had not filed my Notice of Appeal BEFORE the decision was rendered. No kidding, this is not a mistake. The decision was rendered 12 months after the last day of trial and the cost award that was even more bizarre and evidence of gross abuse, was released 2 years after the last day of trial. Interestingly one defendant’s lawyer in cost submissions mentioned that the decision had been made in their favor, despite the decision never being released until a year later.
Now, I ask you, how do you combat such open corruption and if not corruption, incompetence? Clearly the courts and the registry have circled their wagons to protect a truly deprave Deputy Judge.
I prepared and served my Notice of Appeal to the Court of Appeal. Every registry has different procedures and rules and so I contacted the Ottawa registry to learn what they expected. I was told by the Ottawa registry to file it in Ottawa and they would transfer to Toronto. I did that, got home with my nice shiny Court of Appeal number assigned by the Ottawa registrar and thought “well this was easy enough”.
Sure enough, the next day I received a call from the Ottawa registrar telling me they had made a mistake, to send all my materials to Toronto and they would send their file to Toronto by Courier as well.
Well, everything got to Toronto ONE (1) day after the time limit to file and the Ontario Court of Appeal staff refused to just scratch out the incorrect number and give me a proper number, since it was very clear that I had served and filed my Notice of Appeal in lots of time.
The clerks demanded that I bring a motion for an extension of time to re-file my Notice of Appeal. So I did and the Judge, for some peculiar reason, agreed that the extension was warranted, but then went looking for my reasons for appeal and finally dismissed my motion because I had not provided details about the merits of my proposed appeal. All I was looking for was an extension of time (5 days) to re-file the NOTICE of Appeal in order to get the correct file number.
So, that meant I had to file a Notice of Motion to a 3-Judge Panel of the Court of Appeal. Well, the effort to block all my efforts to rectify what was a gross failure in the administration of justice in the first court, went into overdrive.
I was blocked by one clerk after the other. Every day, for 6 days, they kept demanding a different wording or procedure, rejecting my effort to file my Notice. And every time I would ask where their demand was found in the Rules, they said there was no Rule.
I would redo the whole thing, submit it, serve it, do up and have the Affidavit of Service notarized…and the next day another clerk would call and claim the Notice of Motion to the 3-Judge Panel was not correct and that she wanted something different, even though she knew the previous clerk had demanded it the way I submitted it and there were no such requirements in the Rules.
Eventually I wrote to the Deputy Registrar of the Ontario Court of Appeal, putting their various demands before her as evidence…and got no response. I did this by their email system, followed up by fax and then by another letter…still no response.
About 2 months later I get a Registrars Order that my motion (which I never did get to file because of their antics, was dismissed for delay with a $750 cost award). I wrote to say I never had that motion and got no response.
Yes, it happened to me as well. It shows that our justice system is patently corrupt just like the rogue countries we deplore.
In my case the Court of Appeals to for Ontario accepted my appeal, took $220 from me to file the appeal, accepted three copies of Appeal Book and compendium and Factum and then perverted the course of justice by applying Rule 2.1.01 to dismiss my appeal without ever hearing the appeal by complying with the Attorney General of Ontario’s instruction to uphold the lower court decision, which is obstruction of justice and interference with the administration of justice.
When it was appealed to the Supreme Court of Canada it didn’t care that my Charter right was violated despite the fact it had public importance. It refused to hear my appeal yet we are assured that Charter rights are guaranteed and entrenched in the Charter.
When I asked the Court of Appeal to return my $220 fee I had paid to file the appeal it refused to hear, it refused to return my money. In so doing it defrauded me of $220 and committed theft against me. This is the state of our system.
I have lived long enough to know that we lost our rights and freedoms after the Charter was installed because its true purpose is to give those appointed and paid by the government ‘discretion’ to turn a right into a privilege and to violate our rights with impunity and immunity to protect the corporate government.
It is appended to a corporate constitution…you know that because you didn’t get to vote on the Constitution nor on the Charter…it was all written by corporate lawyers.
The Charter is a smoke screen to hide the guarantees of the ICCPR and ICESCR…that’s where our rights really are. But not a single lawyer will ever mention your true rights in these two binding covenants (yes the SCC itself said the ICCPR was binding)
Still, everyone wants to ‘fix’ the current system…we will never learn, will we?
Sounds the exact way they behave in Alberta. Birds of a feather do really flock together. That is why we must push for a system of appointing judges that gives every litigant who ever appeared before such a judge (or deal with such a lawyer) the right to notice and to state any objection to that judge (or lawyer’s) appointment. Until then we will have rogues and other unfit persons occupying our bench
Grace I am trying to figure out the noting in default procedure especially the first step but all the forms speak to every other type of case except regular statement of claims. There is for land, breach of contract. I found something on the internet saying form 11 but there is no form 11 among the court forms listing
So far I figured that the clerk/registrar can note in default as also a judge but it is like pulling teeth getting information or help. Do you mind sharing info?
Yes, the problem lies with our corrupt justice system who is coddling the bad lawyers and allowing, facilitating and promoting fraud in the administration justice simply because of its hatred towards SRLs. It claims to be fair and impartial but in reality it is a wolf in a sheep’s clothing where only power, influence and privilege matters.
That is such an abuse of ordinary folk rights that it is not funny. I appealed my VLO. The court fo appel threw out my appeal claiming there is no merit (that is such a joke because the other side responded which is proof of merit-dunce judges). When that VLO tied my hand in trying to free my elderly mom from kidnappers (our own boko haram) who unlawfully locked her up in Calgary’s nastiest nursing home, and I went to court of appeal the judge questioned why I did not appeal the VLO. By then their ignorance about VLO was becoming less. She went dumb when I wrote back that she was the very judge who dismissed that appeal saying no part of my appeal had merit.
Let me just tell you all about another grave wrong done by the Court of Appeal of Alberta. I had an appeal that the court decided that I should come in private chambers to deal with. I thought the policy says only lawyers can do that so I did not take the offer and appealed what was ruled as decision to Supreme Court. The decision was January 2011 and we had meeting to settle minutes and everything but the registry held on to the order/judgement roll for life and to this even after more than three letters to the CJ they have not signed the order. At AG’s department sided with my draft and still the registry is yet to give me the document. The Supreme Court clerk called them for the it in order to process my appeal for leave and still they held on to it. The Supreme Court dismissed my leave application and hear this the other side asked for $800 cost but the SCC gave them $1,200. This is against a child who was unjustly expelled from school and even a lower court gave me a gag order against the school board and ministry so I could get her back in school and even the then QB Chief Justice had to come out in court once to deal with the two rogue lawyers
You can also take this from me: Even if we have lawyers the rogue courts will treat our lawyers exactly as they treat us. They are just corrupt and I know this because it happened to me too where my lawyer was insulted and belittled for representing me. The other side had a law firm while I had a legal clinic. We are up against something bigger than just a flawed system. Although i have had good encounters with some judges I have had enough rogue encounters to know we are up against corruption
BC SRL,
They can’t stop anyone from coming to court: I go in as I please and announce that I am declared vexatious and just get going. They can only make you jump through hoops such require that you file an affidavit when you apply for leave to file your law suit. I use it to my advantage and laugh at them. The judge who issued the order is made to look and feel more stupid than he intended for me for the order is so ridiculous. It says nothing about vexatious behaviour or anything vexatious I did: Suing people who gave me cause to take action even if it is 100 of them does not make me vexatious. What is more many judges are put off by that order and two told me to just go and file your document. When I told them I need leave they ask, what for (one mumbled ridiculous sotto voce)
I do plan to do something about it later and for sure the ones who come announcing how I am a vexatious litigant usually end up looking stupid. One read where the judge said, “there is no doubt she is a terrorist” so I asked her what’s the question? Then she realised she was stupid so she asked if the judge said that about me and I answered most nonchalantly,’ sounds about right” you should see her face
Reply to BC SRL,
Quote “They can’t stop anyone from coming to court: I go in as I please and announce that I am declared vexatious and just get going.”
What I’ve seen is they don’t get past the court filing clerk.
In some “judge run” courts, you may be able to get past the court clerk and try to bring it up when
he or she asks for matters no on the docket but those days are generally gone long ago.
Now they keep tight control and if you don’t follow the procedure for a vexatious litigant
you will end up with further yellow stickies on your file.
Even if you get a vexatious litigant order removed,
its very easy for the other side to go judge shopping
and get another judge to make an even more draconian order.
Most vexatious litigant orders are done to get rid of a case
and not because the case lacked merit.
The problem is many people cannot get an appeal filed
to deal with the vexatious litigant order.
If an appeal is filed and an
extension granted then the extension will be granted
on terms that make it impossible to comply and if you did
comply the appeal would be mute.
this is in fact the problem,, How do our charter rights to access to justice remain protected when the courts, and judges and lawyers seem intent on attacking you based on the fact that you are a self represented litigant, because if you ask how many lawyer represented litigants are declared vexatious,, that is a non existent entity
This is the courts way of getting rid of us, whether or not it has any connection to justice, We call them out on their corruption, and they steal from us forever, Where are the politicians on this one??
Why must the political class provide the solution? Do you think it’s going to be a solution that benefits us plebs?
The answer must come from the Judiciary not the Legislative; similar to how the answers to the multitudinous issues with the Legislative and Executive can only be found in the Judiciary. In my humble opinion anyways.
I ask what I would do if I were unjustly barred form access to the courts, and I reckon that I would sue everybody involved including the adjudicator and council. Human rights actions, misfeasance actions, any cause of action would be fair game. And I would file and appeal and file and appeal and attack every decision until the SCC picked one up. Perhaps I would band with others so barred and initiate a class action. Heck, I would even be inclined to try the ICC or UNHRC.
The operative word – it must be an unjust denial of access. Play stupid games, win stupid prizes.
I know what that would mean for my life – I could kiss my career, family and future away for such an undertaking. And I would add that I say nothing against anyone here subject to such an order – I completely understand why one might resign themselves to accepting such a fate in light of continued battle.
Barring that sort of radical peaceful grassroots action WITHIN the system, no great change will ever be seen.
i was just discussing with another vexatious litigant Alex clark,, that i believe we may HAVE TO file a class action to stop this declaration of us self represented as vexatious. Also,, the courts here in BC,, are completely disregarding any rights we seem to have obtained in Pintea, and Lymer. etc. I was recently told by a lawyer, that i could not appeal my vexatious designation using these cases because the court is ANGRY,, with me. So, if the court out here in BC,, does not like you,, you cannot access the court. or appeal anything. As i see it,, since this is happening to so many of us, we need a class action to deal with the issue of how the courts treat the self represented, because you simply cannot make them accept any cases giving us any rights at all!! Where does this organization,, the national self representeds stand on the issue of one class action, to put an end to this abuse of process once and for all?? one case at a time is doing nothing if every other one of us cannot use the case to help us in any way I recently supplied the court with proof of evidence fraud in my case,, They are ignoring my submission!!
I could not have said that better. The Judges work for the Lawyers. The Lawyers know that and they (lawyers) do as they please with impunity. Friendly Judges are out there. Most Judges were Lawyers prior to getting on the bench. The system needs an overhaul.
That’s when the bad actor is the judge/court and that is when we have the utmost case of access to justice. Judges are very good a coming up fabrication of facts that usually neither party presented. Until we make them all accountable to the public (not to their colleagues and friends ) we will have no change. I used to say we have 30% bad judges but I have to say it is more like 75% bad judges. Of the remaining 25% a half of them have no clue about the law at all so they just guess and suppose so that makes them even worse than the bad acting judges so that gives us a good 87.5 of the cohort of judges as bad judges
This article has been written based on law in theory not law in practice.
The Rules or the LSO do not prevent the practices described from
occurring.
As an SRL, its insulting to read propaganda of the LSO whose practical role is
to protect the legal profession and effectively prevent any accountability.
My complaint to the Alberta Law Society was refused as I was complaining about opposing counsel, and not my own. Their patronizing reason was that these types of matters are confrontational and therefore I must be confused about the nature of court. I’m a highly educated person who had at the time done a significant additional amount of research into Rules of Court, the relevant law, and ethical practices for lawyers. This unethical lawyer got the benefit of the doubt while I was immediately dismissed.
Hi Gerri, I will be filing a complaint here in the next few months Alberta Law Society. I have heard it will not be taken seriously and they protect their own. I’m still going to move forward with the complaint and cross my fingers for something to happen.
I will be filing a very large complex complaint and need some guidance, I’ve been advised by several lawyers and a senior judge to file a complaint in AB.
How is your complaint going?
The problem lies with our justice system who condones, sanctions and rewards bad conduct by lawyers.
Even when a court knows that a lawyer is blantantly lying, obstructing justice or abusing the court process, it would do nothing to stop the bad behaviour. In rather aides and abets the lawyer to defeat justice.
If the same is done against another lawyer, the court would come hard on the lawyer, rebuke him/her and even order costs against the lawyer but not when the opposing party is a SRL.
this was my experience as well, So tell me why we are reading this wonderful article,, but it is still happening, The disgraceful excuse for courts operating has been abusing us forever, They know what they are doing, When does it end?? I know out here in BC, I was ordered never to come back to court, fined triple costs even though I was already declared indigent, laughed at, mocked, told lies about rules that did not exist, had the file transferred out to another district without anyone telling me to obtain a dismissal with costs. Judges even witnessed a lawyer basically calling me a slut in open court. I was advised by the attorney for the ministry of the attorney general that my daughter needed a separate lawyer, made me hire one,, two separate lawyers knew this, one even sent me to his recommended lawyer. when we got to the court, the judge asked what she was doing there,, this lawyer,, the judge was told,, She never said a word. It was all just one big laugh at my expense, I tried to take this to the court of appeal,, they refused by pretending they never got the filing,, they did this THREE TIMES, I had a fax confirmation sheet each time, When the judicial system is determined to ignore you and your rights, Where do you go from there??? Don’t say the law society,,, they do not care and always side with the corrupt lawyers and judges, So I ask again,, while I love the article,, none of it is happening, Not out here in BC anyway,
When lawyers are arrogant enough to bill at $400/hour, with $5000 advances they can draw down at will without explanation or justification, they have no right to whine that facing an SRL for the first time is any excuse for their lying, cheating, manipulative, disrespectful chicaneries. And judges should be smacking them down for it; at their bloated incomes, it must be demanded they know (and behave) better.
As for respecting the legal profession or any of the lawyers or judges or clerks who operate within it, how could any SRL feel that way once they’ve had a taste of the disgraceful practices drowning it.
More people need to refuse legal support and represent themselves to force the profession to lower its fees and bill for what they’re worth–about the same as a teacher would be my estimate of the skill sets I’ve encountered–a bad one.
Our first mistake is to suggest that Judges smack down morally and ethically bankrupt lawyers…Judges are lawyers dressed up.
Well said. I just realize how disgraceful practice a lawyer does after I become a SRL.
this is such a good plan, I have a few questions,, Will this plan be available in BC as well? Will it apply to any case even those that have had this happen and were closed?? ie applied retroactively?? And what if anything is being considered for judges who allow or encourage this sort of behavior toward the self represented?? my case is the poster child for almost every appalling behavior you have described,
I’d wager every SRL has experienced such conduct in one form or another, but with respect, I think the author reaches the wrong conclusion. Try bringing it to the attention of a Justice when such conduct is experienced, and see how well that’s received by the Court!
Court seems to think that the prospect of opposing counsel taking such actions is utterly inconceivable. When undoubtedly refuted by opposing counsel, Court will invariably prefer the interpretation of the Law Society member, no matter how fair and reasonable the SRL may be.
Case in point – in a recent commercial action, opponent was dragging his feet over documents I knew he had, were damaging to his case, and were not listed, brought it to the attention of the. Received a comment from the Court that “Usually it is counsel complaining about documents” and nothing further was done.
Received those documents the night before trial, literally 12 hours before my opening, and it was clear the Defendant had them early on. Opponent essentially received a licence to ignore foundational disclosure rules, never mind the professional duty.
Therein lies the rub: adjudicators seem to start from the position that whatever position an SRL might be advancing is likely not grounded in law or fact, and possibly vexatious. Counsel couldn’t possibly be acting in abeyance of ethical guidelines.
Spurious claims of against counsel, if unwarranted, have pretty severe repercussions – and rightfully so. Not so much when “the great unwashed” are subject to bad actors. Noble profession, indeed!
Adjudicators are bound by principal of procedural fairness and natural justice. The Judge is the master of his courtroom, and in my respectful view, bound to ferret out such issues when advanced by ANY party.
Sadly, as a SRL I have drawn the conclusion that the only method to resolve such issues is to formally bring it to the attention of the Court by specific application if the court refuses to address it proprio motu when advancing substantive matters.
One should add, however, that there are some excellent members of the judiciary out there who take great pains to ensure the SRL’s of this world have no cause to bemoan treatment from the bench. I have seen it with my own eyes, and it is absolutely restorative to one’s faith in the ‘system’ to observe someone obviously struggling with the facts, law or other hardship receive conscientious consideration and encouragement from the bench. Must be frustrating, as it is painful to observe -and a thankless job.
Similarly, there seems to be a handful of truly excellent Members out there who are undone by the…more morally flexible members of the Society. They are a rare breed, but should you be lucky enough to oppose one, the Court experience becomes almost…enjoyable. You know, like having frank discussions about merits, settlement, refining issues, agreement on procedure. In short, what they are obliged to do and what the system was designed for!
You people are truly a credit to your profession, and you know who you are. Thank you.
In short, it is the system that needs to flex to meet the demands, and I think it can only up to the judiciary to provide the flexure. Conduct of litigants – whether members or not – can only be addressed by the Court and ought to be swiftly punished notwithstanding the status of the bad actor.
After all, Ubi jus ibi remdium right?
Good comment. I would like to point out however, that you are asking the fox to fix what’s wrong with the hen house.
Also, I asked a senior lawyer working for me once, why he was allowing the opposing counsel to get away with frauds on the court and he said that if he dared raise this fact, HE would be hauled before the Law Society for professional misconduct.
I can also tell you that I had to do a Freedom of Information request to the municipality in order to acquire the documents that should have been produced during litigation. In that pile of documents was an email from one of the Defendants to the rest of the municipality’s staff, telling them not to release any documents to my lawyer to avoid ‘helping’ me in my litigation against the municipality…no kidding! And even that was not reportable.
IF you are suing any government at any level, or one of their agencies, do a Freedom of Information and pursue diligently (they will claim solicitor-client privilege or outright lie about having the documents). You will be amazed at what you uncover.
Thanks.
I just refuse to believe it to be the case that the judiciary is entirely comprised of bad actors.
I do however believe there is an inherent bias from the bench against self reps, and I suspect it is getting worse with the advent of Meads and recent jurisprudence on OPCA litigants. There is so much that can be deemed ‘OPCA indicia’, and next thing you know you’re banned from filing anything at the Registry for life. THAT is a scary concept – well deserved in most instances but what about that outlier case?
Looking at things objectively, however, I think perhaps it is perhaps incumbent upon us as SRL’s to be the change we wish to see in the system, and I would posit that might mean pursuing wrongful actions outside of your main cause.
For instance, if a lawyer is deserving of disciplinary action, and the Society refuses to do anything – take it to a court and be prepared to go all the way. If he works an injury upon you, ask the court specifically to address it.
As to issues regarding the Judiciary, that is a very tough nut to crack, and I am not convinced of the presence of meat within that nut. It is nigh impossible to question motives of a trier of fact. It’s not perfect, justices are people just like the rest of us, and I wager we’re better with what we got than the alternatives.
I think Ms. McFarlane has the correct (and only?) reasonable approach; and that is education of the judiciary.
SRL’s are people too, with legitimate grievances, and only a culture shift within the judiciary stands a hope of effecting any meaningful change in the provision of equal justice to all.
In my view, Meads goes part way down that road but needs to go much further and define what is NOT abusive and vexatious. I am a fan of both Meads and Mr. Justice Rooke, but the law of unintended consequences has reared it’s ugly head with what was said there. That decision is just begging for someone wrongfully subject to access restrictions have the SCC spell it out plainly for every justice system participant in binding authority what is acceptable conduct and what is not. Going to take some brave SRL to fight that battle.
It is not deserved in any case. Murderers sentence come to an end but for seeking to access justice for wrongs a person believes is done to them that person gets a life sentence of living without a basic human right that exists the rest of their life? Murder is the capital charge and life sentence for than comes to an end- a reasonable end.
OPCA and all the other indicia are just farce: The wild imaginings of a mad person who was mistakenly deemed fit to hold a seat in dispensation of justice. That OPCA farce is an abuse of power against persons not in full control of their thinking or even those who just see things differently. Not too long ago gay rights was consider absurd or at best seeing things differently. Many rights we enjoy today came about because someone came with a different thinking
If a person takes a foolish case to court and UPON BEING ADVISED PROPERLY BY THE COURT that it is foolish then that person can end up paying significant cost NOT have their right taken away. There was a time not so long ago when that could NEVER happen.
You can refuse to believe till the cows come home. “its called denial”.
I recall how naïve I was when I set out on my journey of litigation. I repeatedly told myself that at the next level the adjudicator would see through all the lies. It took a while for me to understand that the adjudicators are the biggest problem and deserve the greatest condemnation because they go on and on about their blessed independence and their holy scripture – the Charter.
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Today is the first anniversary of the Canadian Judicial Council’s final decision – http://www.cjc-ccm.gc.ca/english/news_en.asp?selMenu=news_2018_0220_en.asp – that recommended the removal from the bench of Quebec justice Michel Girouard. I note that there’s nothing in the record regarding his conduct as a judge, but that’s not the point. The point is that the system has ensured that he’s continuing to receive a reportedly $315,300 p/a salary and benefits while the process of dispensing with his case moves at a glacial pace if it moves at all.
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This case is reminiscent of the Lori Douglas one, that ended when she was six months or so from qualifying for a pension. A deal was then struck that concluded the second of two inquiries (and it’s worth noting that one of the key players who facilitated that deal is now sitting on the Supreme Court of Canada bench). No doubt Justice Girouard is hoping to get the same deal. And it’s increasingly looking like he will succeed.
I think that we all see that we are trying to make a silk purse out of a sow’s ear.
Spot on Chris, they’re no different than any of us. Protect that pension!! Take your mention of the shameful case of Lori Douglas for example, and think if this happened at the place of origin at Roman law and English common law. Lori Douglas would have been stoned or hung drawn and quartered, oh, how we have regressed?
We use latin in law in respect to the founders, the judiciary mourns the death of the King of England by gowning and England even wear wigs in mourning the death of Queen Victoria. Today we give big fat pensions for disgacing jurisprudence. How does the heck does all that compute? Does these issues qualify as “public interest”?, I think so!
I agree with you 100%. I went through the same thing for nearly 32 years believing that someone would see the truth but even the Supreme Court of Canada don’t care about justice, equality and the rule of law.
A key problem is that there is virtually nowhere to obtain justice beyond the provincial Appeal Court level. A SRL’S chances are zero after the provincial Appeal Court level has been ruled upon.
The system is set up where an estimated 10% more or less is all that is heard at the Supreme Court level.
Lawyers and judges know this and use it to make SRL’S disappear from the jurisprudence radar. This fact “in and of itself” qualifies as an issue of “public importance” and requires vigorous pursuit. Other than “Pintea” that was spawned from a SRL action, it really was in actuality a “represented” case complete with Bennett Jones interveners (thanks to Julie). But for Mr. Feasby and the interveners, the outcome would have been vastly different!
The cry has been reverberating far too long of: “Where do we go for justice in this great country of Canada”?
I would urge anyone commenting to keep it simple. Address one issue alone. When you write, try to do the A,B, C’s.
Accurate state the issue, what is the cause of the problem.
Avoid confusion by limiting the issues you addressing.
Suggest a solution.
Its often very difficult to address a root cause when it results in a chain of destruction that becomes an issue
that diverts attention from the central issue.
This is then referred to as a collateral issue and then misunderstood as an irrelevant collateral issue.
Now for the solution.
Its vital that anyone litigating understand psychology 101.
Make sure you know the definitions of denial, minimization, rationalization, projection, justification and reaction formation.
My experience is that Canadian judges are chosen for political reasons rather than their lack of suitability to be judges.
Judges chambers are often described as a toxic place with toxic personalities.
I would go further. There is a trend towards recruiting judges who are the least suitable, riddled with personality disorders where they expertly engage in what is called “The process of justification”.
This is a form of denial, and minimization that requires outright fabrications to make their justifications and rationalizations.
The root cause is that the judicial selection process is flawed.
One solution is that Judges need to be screened psychologically
just like anyone else going into a position of trust.
Absolute power corrupts absolutely and its going to continue to happen absent accountability.
Know the judge and know the law.
Canada is effectively legally corrupt state where the Rule of Law only exists for those who have six figure incomes.
I’m not seeing your solution. Suggesting a psychological evaluation by those who have been widely discredited as forcing pseudo-science on the rest of us as a way of engineering society is hardly a solution.
My solution: get rid of corporate government, establish a government of the People with elected Judges.
RULE 7.2-2 A lawyer shall avoid sharp practice and shall not take advantage of or act without fair warning upon slips, irregularities, or mistakes on the part of other legal practitioners not going to the merits or involving the sacrifice of a client’s rights.
“(P)rocedure exists only to give effect to substantive law, that it is the handmaiden of justice.”
John Horn
Great insight into a problem that only study’s such as Professor Macfarlane’s work, can garner.
When viewing a slice of the whole, our perspective is limited. Upon presenting the rules on the Defenses obligations to SRL, the CM Judge in my matter replied, “ That’s not how I read the rules.”
Without a doubt, Judges turn a blind eye to and as such, support sharp practice by Defense counsel against SRL, or it wouldn’t happen. This is evidence, that like everything else, these and other tactics are deeply rooted systemic problems that synergistic-ally act against the public interest, footing the bill.
It is well documented that cultural change comes from the top down or the bottom up and Defense counsel, while absolutely responsible for and accountable to their actions, are incentivized and sanctioned in their abuse of SRL by those whose role it is to stop it, Judges.
SRL walk away with the understanding that we just paid the system to emotionally and financially abuse us.
1. We pay with our tax dollars for a disillusioned and unjust society
2. We pay unconstitutional filing and lawyers fees (see the SCC on fees people)
3. We pay the immeasurable and irreplaceable costs, losses and hardships of losing, winnable cases.
4. We are paying for the legal system employees to earn a good living off of Canadian citizens in legal and social crisis, who far more often than not, limp away from the process worse off than they were when they came to it.
# Time to stop paying for legal abuse.
‘If your lawyer isn’t taking you to settlement; their taking you to the cleaners.”
©JMGayton 2/19/2019, MH, AB, CA
Hear hear! Well said!
Great summary Judy!
I had no choice but to make two complaints against two lawyers in Alberta: One was “my” lawyer and the other for the defendant in a motor vehicle accident case. (I ended up complaining to then Chief Justice about the Case Management Justice too-he claimed to agree to recuse himself). I complained while the case was in process and did not expect the law society to deal with it then but I knew when they served notice on the lawyers they would think twice about their misdeeds.
Surprisingly the law society tried to pretend to be dealing with the complaints and even at an appeal level the person whose “decision” I appealed wrote to me removing documentary evidence from the appeal file and even sending me their own “decision” of the appeal. The lawyer on the other side somehow left the then firm and disappeared for a while (then turned up at another). My supposed lawyer tried to abandon me when he obviously put me in jeopardy-never responded to me or the other lawyer even after 7 letters to him plus very crooked behaviour leading up to that. Then withdrew as “my ” lawyer while the other one (it was a collusion) was in process of applying for my case to be dismissed. It was such a joke but the complaint got the two crooked lawyers scurrying for cover and I took over my case and got another Case Management Justice
Ms. MacFarlane’s article was like deja vu for me.
I’m a SRL in Nova Scotia
My experience suggests there is a systemic bias in our judicial system.
There’s no evidence to suggest that this is a malevolently intended bias but the bias is nevertheless present, worrysome, and unjust.
From my experience, the Court is more inclined to believe in the unsupported misrepresentations of a professional lawyer than the reasoned, well pled arguments by a SRL layperson, no matter how informed about the law, his familiarity with the material facts, reasoned, or prepared the SRL is.
Case in point,
Lawyer made knowingly made misrepresentations to the Court that a right of way was an easement and knowingly misrepresented that the Court had, in a previous action between the parties, determined the right of way was an easement.
Both representations are blatantly false.
Lawyer also knowingly made misrepresentation that her client benefited from the right of way agreement and that the SRL was burdened by the right of way.
SRL clearly pointed to, presented, and clearly pled the documented facts that there was no dominant tenement, an essential requirement of an easement, that neither party had any privity of contract with the Agreement, that neither party was a successor to the agreement, and that the Court had not determined the Agreement was an easement.
The SRL also clearly pointed to the most fundamental principles of law that require and easement to have a dominant tenement , and that require privity of contract before someone can sue, or be sued, and that, in accordance with the law as legislated in the Province,”…the rule requiring an easement to have a dominant and servient tenement is (only) abrogated in favour of the Crown, a municipality, or a public utility.”
In His Lordhip’s decision, the Justice identified that,
” Several days before this agreement was concluded the (purported dominant tenement) had been conveyed..” – there was no dominant tenement when the Agreement was entered into.
and
“…the Agreement was between several non-parties” – there was no privity of contract
Nevertheless the Court inexplicably ignored the palpable and overriding factual evidence, the trite and established principles of easement and contract law, and ignored the law, as legislated, that was of critical relevance and inexplicably concluded,
“I would be satisfied that the respondent is bound by the easement”
part of what you are describing I have encountered as well, judges come as lawyers, with no background in all areas of law,, but they adjudicate all areas of law, how??? badly, If they have no land law experience, they will issue bad decisions,, especially when they deal with the self represented, whom they truly are trying to get rid of no matter what!! But if you are a family law lawyer,, who gets a job as a judge,, how do you adjudicate any other legal issues with knowledge?? you don’t They also refuse to hear anything they do not like, LIke facts and stuff!! So we have stupidity, and corruption running our courts. They seem to have literally said to us “go eat cake” Maybe it is time for us to do something about that, What do you think Julie?
I’m not Julie, but my opinion is that we need to build a cake that they can’t have any piece of.
The lack of a fair court system is a serious and gross failure of the government…and is actually a significant sign that a society has collapsed.
How about the headline When the Bad-Behaving “Party” is the Judge. ROTFL
That would be the day in this country and that is the only time we would have any change of the sort we need to have a true justice system
Not such a bad idea Allen, Anyone who has been declared a “vexatious litigant” under the “Judicature Act” s 23.1 by a judge’s own motion to The Minister of Justice and Attorney General. And the judge’s decision is without merit and you can factually prove it. Must meet all the criteria set out in s 23 (1) a)-g). If it fails those criterias and The Minister of Justice and Attorney General does not intervene in your best public interest.
You may then have a case to challenge The PM’s office via The Minister of Justice and Attorney General for breach of your Charter of Rights and Freedoms s 7 and s 15. A lot depends if you truly believe you have “validity of enactment” under Part 3 Constitutional Questions of The Judicature Act. Page 16 I believe.
Of course this test will only succeed if you have factual indisputable evidence against the judge declaring you a “vexatious litigant” unwarranted.
Alex more than one judge advised me in open court to appeal. The last one being the very one who dismissed my appeal of it when it was done as having “no merit”. I wrote her back and told her she was the judge who dismissed it when I appealed it. The AG’s department rode on that order too. I met such dunce bats in that place that I can’t believe they are lawyers. The fact is what we ordinary SRLs have been saying all along about the unconstitutionality of s. 23 of the Judicature Act is what the judges are now JUST coming to realize. We have been way ahead of them on such things including the ordinary.
I am trying to have a meet up in Calgary in a few weeks so see if we can get going. As a group we can make demands for justice that we can’t do as individuals and we need to start taking action against rogue courts
Yes, our justice system is patently biased towards the law profession from which our judges come. I was once ordered to pay $500 costs for using the word “misled” in my court documents at the instruction of the opposing lawyer who had previously misled the court, committed perjury and obstructed justice. Subsequently my claim was dismissed for not paying the costs which denied me justice and cost me $7,500.
This issue was just mentioned on Twitter. The following was PM’ed to me and may well be of import to many people here.
Lawyer Abuse
gowlingsabuse.blogspot.com/
It is about abuse of process, malice, fraud, deceit, acting in bad faith and other wrongdoing well settled in jurisprudence as rightful causes of action against opposing lawyers when warranted.
…deal with serious wrongdoing by opposing lawyers actionable by law, which is strongly supported by case law, including binding recent Supreme Court of Canada law. A review of the plaintiff’s brief and pleadings make this clear. It is egregiously wrong that Justice Hollins mischaracterized much of the plaintiff’s case as about a claim of breach of duty by opposing counsel to the plaintiff. It is also indisputable that, of the only duty the plaintiff mentioned in her amended claims, lawyers do have a duty to the court and to meet ethical obligations.
Re-stated here for clarity is a very brief overview of some of the defendants Megan McMahon, Taryn Burnett, and Gowlings’ extensive wrongdoing which caused the plaintiff to suffer serious damages: …
binding Supreme Court of Canada law, stating that malicious and deliberate wrongdoing by lawyers, including fraud, malice and bad faith, is actionable by law and in the court’s inherent jurisdiction to impose consequences and sanctions on lawyers.
Courts do indeed have the jurisdiction to punish serious lawyer misconduct for breaching their duty to the court, acting with dishonest or malicious conduct, engaging in bad faith and abuse of process, or seriously abusing the judicial system. This is clearly stated by the Supreme Court of Canada in its recent decision Quebec (Director of Criminal and Penal Prosecutions) v. Jodoin, 2017 SCC 26:
A court therefore has an inherent power to control abuse in this regard and to prevent the use of procedure in a way that would be manifestly unfair to a party to the litigation before it or would in some other way bring the administration of justice into disrepute…As officers of the court, lawyers have a duty to respect the court’s authority. If they fail to act in a manner consistent with their status, the court may be required to deal with them by punishing their misconduct.
…It was therefore reasonable for the court to conclude that J had acted in bad faith and in a way that amounted to abuse of process, thereby seriously interfering with the administration of justice.
…This high threshold is met where a court has before it an unfounded, frivolous, dilatory or vexatious proceeding that denotes a serious abuse of the judicial system by the lawyer, or dishonest or malicious misconduct on his or her part, that is deliberate.
sawridge trust V alberta (public trustee) 2018 ABQB
“A big beef of SRLs is that no formal complaint can be brought about the behaviour of opposing counsel until the proceedings are over. This gives the SRLs no immediate recourse to actions or behaviour that they may feel are highly unprofessional and may be damaging their case.”
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This is true, but WHY is this an appropriate underlying premise for LSO investigations?
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The LSO has a responsibility to ensure that its members act in a competent and ethical manner. The LSO has also a duty to balance the interests of the public with that of their membership. Privacy, privilege and the cost of litigation are substantial barriers to obtaining proof of misbehaviour and these factors already favour the lawyer. In addition, under the current system, the police generally defer to the LSO on these matters. So, if a member of the public can supply evidence showing that a lawyer is violating the Rules of Professional Conduct, why is it considered inappropriate to investigate the matter forthwith,particularly since delaying an investigation has the potential to put more members of the public at risk? The tribunal findings demonstrate this; about 1/2 of the hearings which are complaints of lawyer misbehaviour have multiple complainants.
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So, what constitutes reasonable evidence that a lawyer is acting inappropriately? Well, I don’t know what it is but I can tell you what it is not (in the LSO’s eyes).
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I waited until Minutes of Settlement had been negotiated before lodging my complaint in Feb 2015. I complained that, despite my express written objection, the opposing lawyer had followed the Estate Trustees’ direction to use $20,000+ from my late aunt’s estate to pay the expenses of my late uncle’s estate. (The estates didn’t have the same beneficiaries and this action enriched the Trustees.) I provided copies of the opposing lawyer’s own trust accounts showing the misappropriations and the Minutes of Settlement which stated that the monies would be repaid as soon as practicable. There were numerous other irregularities, such as the lawyer-prepared estate accounts stating that a $10,000 deposit in July 2012 was car sale proceeds when the MOT transfer history which I had obtained showed that the car was not sold until September 2012. Neither the lawyer nor the Trustees could locate any paperwork to support their claim about the car sale. They undertook to provide me with a copy of the cheque from the bank.
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My complaint was sent to Investigations where it advanced on a geological timeframe.
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A year later I received updated estate accountings which showed that the misappropriation had continued AFTER the Minutes agreement and the monies STILL hadn’t been returned to the correct estate. The lawyer had calculated the sum owed as $80,000 but her bookkeeping was so bad that she had missed an further $20,000 in repayments. She would not respond to my requests to confirm that the additional $20,000 in repayments and to transfer the funds to my uncle’s estate. (I note that the ‘borrowings’ had exceeded the Trustees’ share of my aunt’s estate.) The LSO reaction? Meh. Not our problem- go back to court.
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I ended up going back to court in April 2017. Opposing litigator #3 provided some of the outstanding information. This showed that opposing litigators #2 (who had negotiated the Minutes and had aggressively asserted that there was no fiduciary breach) had been paid $25,000 in misappropriated funds for their litigation of my uncle’s estate. I also received a copy of the July 2012 $10,000 cheque which was supposedly the car sale proceeds. It was not from the person on the MOT record and had no details about its purpose. Litigators #2 had received the copy of the cheque from the bank before the Minutes were signed. They had not passed it on despite having undertaken to provide it. Litigator #3 advised that he saw no need to obtain a copy of the MOT receipt to clear up the discrepancy. He stated -in writing- that he believed his clients and the MOT transfer history must be incorrect!
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I submitted 2 more complaints to the LSO and got 2 more ‘Meh’ responses. The complaint against litigators #2 reached Investigations but no professional misconduct was found. The complaint about litigator #3 was rejected in the Intake department and I was told to go back to court.
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The LSO’s lawyer:public balance is heavily lawyer-centric in these cases but, to me, these incidents pale in comparison to another instance raised the NSRLP blog, https://representingyourselfcanada.com/the-client-most-lawyers-fear-and-wont-represent-at-any-price/ . In this case the lawyers’ testimony put a man in jail. Surely when someone’s liberty is at stake, it is appropriate to investigate the evidence about the claims of lawyer misbehaviour immediately!
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In summary, I think there is an urgent need for more transparency in the LSO complaints process. Accountability dies in darkness.
Donald’s story is horrific enough…but there are even worse stories out there. Hear and research the story of Jeanette Tossounian who was wrongfully convicted of burning down her own art studio. Her story is a much longer and even more troubling story beyond even what happened to her for her wrongful conviction. It’s a nightmare that could happen to anyone of us. https://www.youtube.com/watch?v=CixDhjGYNJg
when i tried to sue lawyers our hearings were not listed for the public to attend and done in a secrete court room-that only changed after i found out and complained-that is how the system works-for lawyers only.
the rules of the court inc vexatious etc were created by lawyers for lawyers-lawyers also lobby the gov. for laws to protect themselves but we cant do that.
in England lawyers no longer investigate lawyers-how can we lobby for that system?what can we do Julie?
When you read all the comments its so plainly clear that the justice system is bias/corrupt/against SRL’s-why cant there be a constitutional challenge by SRL’s right to use the courts/access to justice-rules in place now are designed to prevent court access so obstruct justice.
yes this is all happening all the time,, Well Julie and gang? The judicial system is not just flawed a bit, It deliberately hides, and continues, its dishonest and discriminatory attacks on justice, based on if the opposing party is self represented. What do we do with this?? just writing here is not going to help now, While it has put the matter on the table, it has not done anything to change one thing, At least not out here in BC, We occasionally see a web site developed here, or a court rule to admit there, but honestly, There is no more transparency, the law society is still the same bull, and the courts from the clerks up, have still made no changes to their behaviors, No legal aid exists, and lawyers still bully people in bankruptcy. What now??
Tom, this happened at Donald Best’s judicial review hearing. SRLs including myself, attended to observe. When we arrived there was no publicly posting anywhere. The counter clerk apparently didn’t know nor did security who were shocked to learn they had not been alerted that a Judicial Review was going on down the hall.
The problem is that the Courts do not take SRL’S serious enough in accordance with our rights. They see us through the prism of nuisance, and would like rid of us. We are not seen by most judges as legitimate enough to be bothered with. Very troublesome in a country that proclaims to run and respect the Rule of Law. Lawyers and Judges are the law in Canada, and we’re “outsiders” just as Mr Feasby said in Pintea v Johns.
SRL’S are obliged to pay all the same filing fees etc. etc. I wonder what the total dollar amount of filing fees garnered from SRL’S over the last 5 years would add up to? That would be an interesting figure to know. Additionally, what is the actual success rate of SRL’S?
It is ironic that 95% of us wouldn’t be Self-Represented if we had the funds to hire a lawyer. However,the Judge will quickly tell you that you ought to hire a lawyer.In the meantime she or he is getting paid in the region of $300,000.00 annually out of tax payers revenue! How can this possibly represent “equality”?
Then if you happen to learn their game, and let’s not be fooled, it is a game. They’ll deflect your merits away to create a “vexatious litigant” out of you. Accuse you of gaming the system for being “sophisticated” “articulate” and “well informed”. Cherry pick the Rules that favour their preconceived judgments and ignore the Rules that favour you and expose their “errors of fact and law”. The deck is marked folks, and “independence” is being used against us, and not for us!
These horrific patterns exposed by all the people that have used the legal system through out Canada actually understand how bad our legal system really is & I agree with them all. It is the exactly problems for me in Alberta, with the judges , lawyers & the law society all a protection system for those in their society . They are not letting the people have a say in changes need , Number 1 problem we have to fix . Here is many filed documents to prove what we all are saying on this blog is true . http://alberta.newjusticeforthepeople.com/ look around this site you will be amazed.
Derek, I expect to be in Alberta in a few weeks. Can you gather a few SRLs together so we can have a meeting? We have this whole justice system in right in our hands and we can wrought positive changes but that has to be a collective hand. Do be selective Derek so as to avoid head ache with silliness for that is a threat starting a collective. We will have to deal with silliness but that has to be later.. (Recall to some we are silly for daring to self-represent so we have to embrace those who fit our notion of silliness eventually)
A word to the wise Derek, only gather those you are sure are SRLs so we do not get over taken by imposters. We need to do more than talking and there are things we can DO. There is no other group in a better position to deal with the injustices of this justice system
WOW! Another Sharp Practice article revealing the destructive forces of our justice system and some (man) of the lawyers stimulating their business billable hours from it. Another excellent article receiving glaring feedback from the public our present justice system is suppose to be serving. So grateful to see so many people coming forward with similar stories collectively bringing their voices together. Until more people speak up nothing will change to the length and speed that it needs to do. Come forward ALL SRLs and Legal Consumers who have had to deal with mind and life-altering legal abuses which continue to destroy Canadian’s lives from coast to coast and asset strip its citizens. Well done NSRLP and every single comment on this blog. Note: There are far too many bad legal practitioners tainting the good work done by others within the profession. The profession, itself, needs to strongly hold their own to account. Law Societies MUST stand aside as a matter of conflict of interest and permit third party SIU style intervention to be instilled regarding investigations and disciplinary proceedings. It simply has to happen both with Law Societies and Judicial Councils if public faith is to be maintained. The public, particularly SRLs are simply not believed and tossed aside as having no merit – when they actually have valid complaints backed by reasonable supporting evidence. We need expedited change now…not after the fact when concerns have potential to be tidied-up before investigations actually have a chance to begin. Again, there are many good people both outside and within the system trying to bring change but they face an uphill battle. As much as we need their support…they need ours. Seek them out. Build those relationships. Engage them in discussions. Be the positive influencers. Get out to Law Society Symposiums. Contact your MPPs and Ombudsmans. Seek out the All Stars within the system and work with them. Get on twitter because right now the Law Society of Ontario is beginning its 2019 Bencher Election Race see this link to find out who is running https://lso.ca/news-events/events/events-2019/bencher-election-2019-candidates. Seek out fellow SRLs in your community and build strong relationships and support networks. We have been promised change is coming. Let’s help it happen!
If you or anyone you know wants to start and run a wesite to expose all this (case #s, names of Judges, lawyers, etc) I would like to hear from you.
They ridicule us every chance they get so it is time they get some of their own medicine. How about CourtofShame.ca.
If you’re from Ontario, contact me: gracejodance at gmail dot com.
Thank you
I have a website where complaints can be logged. It’s temporarily down because a lawyer filed a complaint
TYPO CORRECTION: (man) should read (many)! Sorry about that! 🙂
What happens when the lawyer behaving badly is the judge?
http://www.abajournal.com/voice/article/judging-the-judges-with-all-due-respect-of-course/
You’re correct Derek the legal system is a closed society and though lip service is given to SRL’S, we are indeed “outsiders”.Unwelcome invaders in a locked-in society where tribalism is their suit of armour. Just look at the SNC-LAVALIN fiasco, Jody Wilson-Raybould was an “insider” until she wasn’t? Too many political strings are being pulled for big corporations and powerful bodies…how can this be classified as “independence”?
Look at the facts: $100,000.00 political donation to the governing party. It’s nothing more than a cover-charge for a cover-up. I dare say, that it matters not which party is in power nothing would have been any different. Illegality is an art form followed by political spin.
Lying is a competitive sport and ought to be part of the Olympics! “Truth” and “Veracity” is extinct in today’s society. “Fake News” has become a defacto war cry should a scintilla of “truth” bubble to the surface. Thanks to Trump and now our government has been smitten with the same tactics. It’ll be interesting just how much Jody Wilson-Raybould will say or be restricted to say? Will she protect status quo of “the system”? My guess is the latter! It is sad commentary for any community or society where one holding the responsibility of “Minister of Justice” is fighting for her justice, instead of administering Justice for all of us?
Was she ever administering justice for all or did she just stay with the status quo?
After reading all of the comments on this page, I’m beginning to think that it would be beneficial if SRL’s weren’t appearing all by themselves in the Court. SRL’ could get some feed back from other SRL’s and maybe the courts would make better decisions if there were witnesses to the hearing. Maybe a listserv or something along that line would be functional.
I have said so many times. We need witnesses in those court rooms and sensible SRLs more than any other. Case in point, I had a tribunal hearing and a few “friends” came along. Two knew to take copious notes of what witnesses said but no one noted what was done or said by the adjudicator and to make those important record. For the record, I had a very good lawyer BUT the adjudicator had no qualms disrespecting him by walking right over to the other lawyer and other party’s “representative” (he turned out to be the adjudicator’s home boy/buddy) and advised them what to submit to him. I was still in the witness box and so shocked I could only open my palms to my lawyer seeking out why are you not objecting this? That was obvious BIAS. needless to say I suffered the worst case of slander and defamation by that adjudicator’s “ruling”. It is a scam for anyone to tell us how we need a lawyer for school children in England know lawyers dare not complain about such misdeeds
Notes etc you would think would be shaming and so maybe this would stop, These people know what they are doing, and have no shame about it. They believe it is just fine to abuse us. No remorse at all. So,, unless we recognize that the courts and tribunals operate without regard for us, and without shame about it. We are acting in denial of reality. I was recently told by a lawyer, that Pintea, and lymer,, did not apply to me. because the courts were “angry” with me. So,, they do not follow court rules, nor do they care about court decisions. That is now what we must decide how we are going to deal with.
Please start that list serv. I will join and I know many others will. There is strength in numbers and we are louder if of one voice
I can see how professional brusqueness can come off as disrespectful. An attorney should not be disrespectful in any way. So I can see how those complaints can seem justified.
How “generous” of you Chance Cook,,, to imply that it is NOT, disrespectful, but instead, just PROFESSIONAL BRUSQUENESS. That is a pile of bull. Lying about transferring files to another district without notification,, is not professional brusqueness. Hiding evidence by refusing to disclose, is not professional brusqueness, falsifying information and dates on evidence, is not professional brusqueness. Disregarding notification of not being available, and proceeding to court anyway,, is not professional brusqueness. etc etc etc. This naming a behavior differently in order to make it more paletable,, is not professional. With the amount of stories posted here about the egregious behavior of the lawyers and judges , which is just SOME of it, it is safe to say, This is unprofessional,, and it is disrespectful. And that is how the courts and its actors are showing themselves to be. REALLY No justice is being done by this behavior. It is a common behavior type,, used against the self represented, WITHOUT CONSEQUENCE!!
since judges feel free to “interpret” the law, as they wish,, they are also disregarding the actual legislation, When they “interpret” procedure rules as they see fit, they are disregarding procedural rules, AS THEY ARE WRITTEN. Then they have the gall to “instruct” us,, on how to follow the legislation and procedural rules, WHILE THEY DON’T!! This continued disregard for the law, is literally rendering the rules of court obsolete. And case law is useless. Even written legislation is worthless, if the courts can legitimately disregard what is written,, and “interpret” it anyway they want. This is past a legal issue, The courts have now taken over the power of our legislature, and are doing whatever they want. And we are the canaries in the coal mine.
Well said Sandra. Absolutely agree with you. Our judges are acting like tyrants and dictators making their own law and rules as they please.
What is so egregious is that they have no regards for the Constitution and will go to great lengths to defy the law knowing that it is a criminal offence to obstruct, pervert or defeat justice. That is the prime objective of frivolous and vexatious rule. It is a licence to defeat justice.
Our judges have no shame, no integrity and no moral compass.
The remedy SRL’s seek is to take their Complaints international. If our Parliamentarian’s will not act on the public’s behalf, then shame the Canadian Judicial System and Government internationally. It’s as simple as that.