Written by NSRLP Project Manager Dayna Cornwall; originally published on Slaw, Canada’s online legal magazine.
As I approach my fifth anniversary working for the National Self-Represented Litigants Project (NSRLP) I find myself feeling reflective.
I could not have anticipated ending up working in the legal sphere, in the world of “access to justice.” Until 5 years ago I’d never heard that phrase, or had any real understanding of the justice system. My background is in libraries, among other things, and I’d never been involved in any kind of legal proceeding. So although I was well-educated and informed in general, and aware of many social justice issues, my knowledge of the legal world was (like the majority of people) gleaned from movies, tv, and books.
It’s been quite an education.
While preparing for my job interview with NSRLP in 2016 I was shocked to read Julie Macfarlane’s original 2013 study on SRLs – I had no idea that such high numbers of litigants in family and civil (and criminal) law were self-representing, no idea that the main reason they were doing this was inability to afford counsel. My general, vague understanding, without ever having really thought much about it, was that if I couldn’t afford a lawyer, legal aid would help me out. I wasn’t naïve enough to think I could afford a lawyer for any length of time (though I had no real sense of just exactly how much legal services cost), but I assumed legal aid would provide at least some support. It was truly shocking to learn that the threshold for legal aid in Ontario is an annual income below $19,000. Learning that the average cost of legal fees is at least $350 an hour, it didn’t take me long to realize that most of the people in my life, family and friends, wouldn’t be able to sustain legal services without going into massive debt. Seen in this light, I finally understood that for most people the decision to self-represent is barely a decision at all.
I wrote about this, and my initial shock at the access to justice crisis, in July 2018, about a year and half into my time at NSRLP.
Since then, I’ve continued to learn about the Canadian justice system, and ordinary Canadians’ experiences within it. Somehow, I still find myself continually shocked. It seems that every time I turn a corner within the legal world, I hit another wall – there are just so many barriers to full access to justice for so many people.
A sample of the barriers I’ve witnessed since coming to NSRLP include:
- Self-represented litigants being labelled “vexatious” and having their access to the courts cut off. Our research work on this topic has unearthed some concerning patterns. A vexatious designation is meant to be a punishment used in rare circumstances where a litigant is deliberately abusing court processes, but it appears that self-represented litigants are often designated (or just vaguely labelled) vexatious for behaviour stemming simply from their confusion with legal processes. Vexatiousness seems to have become a weapon that the courts can use to push SRLs out of the process, rather than dealing with the complexities of the SRL phenomenon and finding ways to help them navigate the system.
- SRLs dealing with Tarion (Ontario’s new homes warranty program) through the Licensing Appeal Tribunal, meant to solve disputes between homeowners and builders. Consumer Advocate and former SRL Barbara Captijn writes and speaks often about this issue, pointing out the lack of protection or compassion for SRLs in this process, the conflicts of interest, and the vastly uneven playing field between consumers and the building industry. This past February, Barbara wrote about one of the most heart-breaking examples of this consumer protection breakdown, Daniel Emery’s sad experience.
- Outrageously large costs awards against SRLs, used as a punitive weapon by the courts. Losing SRLs, often those deemed “vexatious,” may be saddled with what amount to huge fines in an effort to punish them for perceived abuses (perhaps even just the audacity of appearing self-represented). These “fines” can reach well over and above the intended purpose of costs awards, which is to help a winning party recoup their legal fees. The most prominent example is Valenti Pintea, an SRL ordered to pay costs of nearly $83,000 by the Alberta Court of Queen’s Bench. Mr. Pintea’s case ultimately ended up before the Supreme Court of Canada in 2017, where NSRLP acted as intervenor, and mercifully the SCC decided in his favour. We have published a great deal of content on the Pintea case, including 2 reports (2018 and 2021) tracking the use of the SCC decision across various courts, in part because it is representative of this tactic (as well as other strategies) used by the Courts to punish and deter SRLs. But Mr. Pintea’s experience is far from unique – we have heard from many SRLs who report being ordered to pay excessively large costs awards.
- Just recently we’ve become more aware of the challenges SRLs with cognitive disabilities experience in seeking court accommodations. It seems that even where processes for accommodating such disabilities exist, litigants, and even judges, are not aware of them, and so SRLs go through the process of filing motions (leaving their private medical information open to scrutiny and abuse by the opposing side) to have their disability needs met, only to often face denial – made even worse by a lack of compassion. We are continuing to conduct research in this area (we invite anyone with an experience of trying to get accommodation for a cognitive disability to get in touch via representinyourself@gmail.com) and will be releasing a report in the coming months.
- We are becoming more and more aware of the high numbers of criminal litigants forced into self-representation – unfortunately the same legal aid income thresholds exist for the majority of criminal offenses as for family and civil matters. This barrier intersects with a whole host of systemic problems faced by vulnerable people, including racism, high rates of incarceration, homelessness, etc. We hope to expand our research, resource, and advocacy work into the criminal justice system in the future.
These are just a few of the barriers faced by SRLs I’ve learned about during my time at NSRLP. Many people experience more than one barrier; often they pile up and exacerbate one other. We hear daily from SRLs (and empathetic justice system insiders) about both old and new barriers.
Why am I still shocked, after nearly 5 years? Shouldn’t I just be resigned by this point? Yet I am continually surprised to discover one more baffling and infuriating barrier to access to justice after another.
I keep being surprised because to my rational, 21st century mind, these additional challenges for those without lawyers seem both unfair and ludicrous. They make so little logical sense, let alone ethical, moral, and compassionate sense. Perhaps I shouldn’t expect compassion from a dispassionate justice system, but surely I should be able to expect an ethical system, at the very least? If law is meant to be logical and ethical, where is the logic and reason in maintaining a complicated system which, frankly, does not benefit the majority of people within it? (litigants are the most obvious victims of our current system, but I can’t believe that the status quo is healthy or good for the majority of lawyers and even judges, who face alarming levels of depression, anxiety, and substance abuse, often on top of systemic racism and sexism.)
These constant shocks have left me thoroughly disillusioned by the realities of Canada’s justice system – and I see that disillusionment mirrored every year in the law students who come to work as research assistants for the NSRLP. They too are shocked by the disparities and callousness of the system, and I know they find it painful to have their bright hopes for a meaningful career in law tarnished by the sad realities so many litigants face.
However: those students are a big part of what gives me hope for the future of law. I find myself constantly inspired by their compassion for SRLs, and their passion to take what they have learned about the system and make change. Our research assistants are driven by a concern for access to justice: yes, they become disillusioned by what they learn, both at NSRLP and in their other law school experiences, but then they turn that disillusionment into determination. Our RAs go on, at NSRLP, at law school, and then in their legal careers, to adjust their thinking, make radical, value-aligned, decisions about where and how they will work, and to speak up on behalf of litigants whenever they get the chance.
I am similarly inspired by the many legal and access to justice professionals who push for change, in ways both big and small. Lawyers and judges who stick their necks out for NSRLP and for SRLs, who make waves, who change their practices and processes, who aren’t afraid to talk to litigants about what they really need, or to speak up about the inequities within the system. Court staff who genuinely care, who go out of their way to provide information to litigants, and who tell us about their desire to do more. System administrators at courts and tribunals who reach out to us because they want to understand the SRL experience and commit to changing their processes and materials to make the system easier and friendlier.
We have a long way to go. The barriers to access to justice I’ve highlighted above are deeply entrenched, and they aren’t going away soon or quickly. And I have no doubt that I will continue to be shocked whenever we uncover a new and disturbing barrier. But we keep shining that light, looking for new ways to listen, and to help, with the collaboration of our students, our friends in the legal profession, and, most importantly, the self-represented litigants who so generously share their voices with us.
#excellent insight
Thanks Kelly! 🙂
I have been a SRL for the last 20 years. I currently have a case in Federal Court.
Two things never cease to amaze me.
1. No lawyers available. They don’t even respond to inquires and none of them work on contingency.
2. The brazenly and malicious unlawfulness of the judges.
They violate CPR daily and don’t abide by them when they are required.
This causes extreme hardship, going back to court over and over again, and more financial loss.
3. Court is always a humiliating experience. When I lose and I know I am right, it makes no sense.
One can be asking “why am I still constantly shocked” only until electrocution is complete. Rather than providing simply a place to pontificate and vent, why not use NSRLP moral suasion powers (and influencers) to petition the appropriate channels to introduce at least a modicum of distinct rules in civil procedure and judges’ practice directive: protect the interests of SRLs. Since costs orders are touted as the best tool to control waste in civil courts, one baby-step fiat that would be welcome is: For all proceedings with SRL’s, let’s say the judge must provide fulsome written reasons for costs judgment within 60 days. After more than a decade of litigation and a 9-day jury trial, the judge wrote nothing in my case. My costs submissions were clear and unequivocal. Attachments included an early settlement offer. Obviously zero costs (from surely $300,000) to the winning party was a coup for me personally, but with no published reasons one is left to only imagine the embarrassment proper reasons might have caused to the 18 lawyers and 21 judges involved. Such a monumental waste. Perhaps make the rules retroactive… In a related case the opposing lawyer brought up costs that he had “overlooked” after a 3-week trial 4 years earlier and motions 11 years earlier: Free passes to relitigate for lawyers! If an SRL tried the same, a judge summarily would declare them vex nunc pro tunc.
Knowledge vs proof.. the ultimate challenge. We go in expecting moral-based professionally-minded judges. Then reality sets in. Prove it out and prove it convincingly is the only game in Court. Nothing else matters. Certainly not morals or knowing what’s right and wrong in a case.
I just applied for an Adjournment for mental health reasons, and to obtain legal Counsel. In reply to that, I was served with an order to vacate in 10 days. I paid for the house and I’ve lived here while renovating it for seven years. There’s more to the story but the point is this.. don’t expect judge to care, (they may or may not), simply prove your case … or ELSE!
i would be willing to bet that almost all of us remain shocked. And i as well was declared vexatious with a hefty fine for daring to show up in court at all. I just submitted an expert evidence report,, prepared by a geneticist,, that showed the outright fraud involved in the dna testing in my case. I submitted it to the court, and to David EBY AG out here in BC. No one is responding,, and i was sent a threatening letter telling me to vanish by one of Eby’s lawyers. It is fraud that is clearly of no interest to anyone involved in the court!! My guess, is that everyone always knew it was fraud,, and no one cares. The court system may even have made a conscience decision to ignore it,, from the beginning. It is stealing my daughters rights from her,,,,but what does the rights of a child matter to the judicial system, Apparently it doesn’t
Dayna, this article really nails it, based on my experiences and the observations I’ve made, simply based on some the decisions. To me, the justice system, which I used to truly love and admire, has been the single biggest betrayal of life, it has stolen 10 years, that should have used for living, not squandered with delusional dreams of access to justice or that my legal agreements would ever be considered, nevermind my evidence. Thanks for this article and for all that NSRLP has done to support Seals, like me .
Dayna,
Excellent article and it is so true. I have lived this nightmare for 111/2 years and they finally got rid of me saying I was vexatious which was unadulterated nonsense. The SCC agreed and I lost everything I ever had. For those of you who are unaware of Rule 2.1, I suggest reading up on it because that is how they will get rid of SRLs. That is what they did to me.
It was started by a lawyer from a prestigious law firm and he retained a Law Pro lawyer to defend him after I sued him and his firm. The Ontario superior court judge agreed with the lawpro lawyer and when I appealed, the appeal court agreed as well, yet both had almost identical written decisions. They both had ulterior motives and the SCC said nothing.
When I was seeking leave to appeal at the SCC, I supplied a 5 page affidavit from Dr Julie Macfarlane regarding this matter and it fell on deaf ears at the SCC. So much for justice.
The legal system in Canada stinks and those who could make change at the top are not interested because they have a hidden agenda and one of the big things is protecting their own. The LSO will protect lawyers as will the CJC protect judges and I know this from firsthand experience.
The system is so badly rigged in favour of the legal profession against SRLs, the largest group of litigants ever and the profession wants this stopped at all costs.
i was ruled vexatious because i didnt pay $9,000 in court costs in 30 days-i have been disabled since birth and have an income of $7,000 per year,as well crediters cant take your social assistance income away by law-so i am vex for not giving defence lawyers all my income and being left with no income to live!!!!!!!
had i paid the $9,000 i was allowed to sue 7 lawyers-there is a protection system similar to what was shown on W5-there is a $5 billion fund to protect doctors in canada funded by the taxpayers and has been in place since the year 1900-so they protect lawyers from being sued in a corupt way.
Bravo Dayna.! Like you before I became a SLR I was thinking the same thing like you and like any immigrant who was coming to settle down in Canada. Since 2015 when I was started first of 5 cases, I was suffered psychological disabilities and I meet only two juges of the Superior Court Who respect my rights. It is so worst that I judge ask me why I was not playing golf instead of fighting for my rights (recorded). The others don’t tell it but for sure they think something like that. Conclusion : That’s the worst justice problems for any citizen of Canada but they don’t know they have it until they have to fight for their rights. By letting things going that way, Canada don’t respect their obligations regarding His adhesion to the Universal Declaration of Human Rights and the articles 7, 8, 12, 17, 29 and 30. May be SLR will have to go at UN for the recognition of theirs rights?
The “justice system” in this country is far worse than you can imagine. The access to “Justice” in Canada is right up there with the worst dictatorships. I’m not exaggerating.
I’m a professional, who, because of circumstances, has had varied personal experiences with the civil side of of the law and it is an absolute disgrace. I will tell all my stories at a future point in time.
I have said before that what the legal establishment is running is not sustainable. And I believe we are getting closer to what Christie Blatchford called in her last book “a day of reckoning”, though she didn’t suggest when that would be or what it would look like. I had the good fortune years ago to move beyond the facts of my own personal case with the discovery of the first of two curious public interest cases. As I assembled that case (a very succinct summary of its basis is found at – https://engage.gov.bc.ca/app/uploads/sites/332/2018/04/Chris-Budgell.pdf) and challenged the authorities I saw responses that signaled growing alarm about the prospect of the public learning the truth.
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Some of my efforts have elicited ill-considered knee jerk reactions, and I have good reason to believe that the latest one is the introduction in the Senate on May 25 of Bill S-5 – https://www.justice.gc.ca/eng/csj-sjc/pl/jc-cj/index.html. Whether or not that decision on that date was a response to the email I had sent just three days earlier, it is going nowhere, and will add to an already remarkable record of incompetence on the part of all the people and offices that have been claiming that they were working on fixing what is wrong with the Canadian Judicial Council. Most SRLs have probably never tried to engage the CJC and many won’t know what it is. In the faulty architecture built by the Canadian legal establishment it is like a capstone in an arch. If it fails the whole structure fails.
Hello. This is the first time I have commented on anything in this blog. I have been doing some SRL litigating. I have a lot to litigate about because i am often a target of harassment. One thing I find is that when I am allowed to make my case at all, I invariably win. i have won some substantial damages in some cases.
But if I get picked up on by the scumball network in court, there is nothing I can do. They are determined not to give me the slightest chance to present my case.
I have an idea of what needs to be done about these people. Start a registry of them. Web publish it.
I am interested in comments about this idea.
It is an interesting idea, but the first thing that strikes me is that it would likely be a huge challenge to manage, and might even end up attracting lawsuits for defamation.
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I would not simply dismiss it though. A great many of us who call ourselves aggrieved SRLs / victims of the legal system have named various individuals, including judges, and some of what we’ve said could probably be characterized as defamatory.
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I’d like to offer one of my own examples of naming names in a manner that I hoped would get it published by the B.C. provincial government. I was actually a little surprised when they did publish it , along with a previous submission by me.
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Both of them are included in the list of submissions found at https://engage.gov.bc.ca/labourrelations/written-submissions/. In the first one I attempted to offer a very succinct explanation of the legal issues I had uncovered. With this second one – https://engage.gov.bc.ca/app/uploads/sites/332/2019/01/Chris-Budgell.pdf – I provided a kind of chronology, starting in the year 1992 and identifying various individuals – about a dozen of them – who were part of the story. I can argue that each of them was guilty of some conduct for which they should face some accountability. But to have some prospect of seeing that submission published I did no more than identify what role each of them played in the chronology. I am assuming that my two submissions will remain online unless the government decides to remove all of those submissions.
I think its a GREAT idea. “Evidently” from this blog, our society needs more oversight of Court processes, (my experience screams for more) and obviously our history of appointing judges is less than optimal. I s ay go for it Tim.
I could be spending eight or more hours a day writing about the failings of the justice system and barely scratch the surface. Here though is an observation as well about Canada’s media / press corps. An item that I have to think will eventually get more attention, but I spotted it only because I picked up a stray copy of the Financial Post in a coffee shop. The article offers a clear rationale why it warranted sharing with the business community, but why hasn’t it been shared with the wider public – yet? I’m somewhat amused to find that it has now been briefly noted by a publication in Scotland – https://www.scottishlegal.com/article/and-finally-high-stakes. It includes the link to the FP article – https://financialpost.com/commodities/energy/solitaire-playing-judge-raises-issue-of-procedural-fairness-in-enmax-transalta-power-lawsuit.
I have watched from wth horror the rights of clients of corrupt lawyers get away with fraud forgery on a daily basis.
The law society is corrupt beyond your worst dream.
Canadian personal injury lawyers have stolen clients costs since 2005.
Reference Hodges Neinstein Toronto Star double dipping lawyers
My question is how do victims get money back that was stolen from them by lawyers.
Ms, Hodges got 28k lawyers 112 k
Any thoughts appreciated
Chris Budgell and James C. allude to a huge systemic problem: prime directive is “feed the beast”. This beast gets to write the menu and feed itself from the fullest pantries! Even parliament has no real say. Ontario’s anti-SLAPP legislation is one example. The recent decision in Canadian Thermo Windows Inc. v. Seangio, 2021 ONSC 6555 (CanLII), puts into numbers how much the system focuses on getting lawyers their fees over justly and swiftly resolving issues and party damages. Costs awarded: $164,186.76 … Damages awarded: $2,500. Good luck to any SRL attempting to defend such a SLAPP. Even putting in all the work according to the book, if they weren’t declared vexatious, the SRL would not get $2,500 damages and less than $500 for proportional costs at $10/hr. (Fong). More likely, the SRL would be dragged through a full-fledged trial, have to pay damages, and pay the lawyers for that privilege. Read His Honor’s decision in Thermo (supra). Mind-boggling how the will of parliament can be subverted according to the bar’s insatiable appetite. Neglecting the huge drain on tax-funded court infrastructure, this case is1.5% efficient (damages/(costs+damages). Imagine the outrage if a business got government funding for being that efficient. Are judges blind to the elephant in the room? I lament an emaciated pachyderm with no tusks. The magnificent tusks have been squandered in a bloated ivory tower, off of which very few courageous minds dare jump from their solitary game.
It’s difficult to know when the SRL complaint is justified, and when the SRL is missunderstanding or misrepresenting the issues.
There are some pro bono lawyers that listen to the complaints and give a non binding opinion.
Unfortunately, those lawyers are few, those opinions are confidential, and also, given time constraints, the lawyers may rush their job and get the facts completely wrong, and maybe biased themselves, after listening to too many SLRs making unmeritorious complaints.