Without a Litigation Representative, Brain-Damaged Plaintiff Forced to Represent Herself by Court that Alters Her Competency Designation

Without a Litigation Representative, Brain-Damaged Plaintiff Forced to Represent Herself by Court that Alters Her Competency Designation

One of the stories that haunted me from the 2013 National Study was told me by a woman (“Fiona”) who, following a traumatic brain injury sustained in a motor vehicle accident that ended her career, was trying to recover spousal support arrears. She had had a lawyer, but like many of the SRLs in the study, had run out of funds to continue. Fiona explained to the settlement conference judge that as a person with a brain injury, she needed to take notes for her future recall, but the judge would not let her and told her, “You must respect the court and you should not take notes when I am talking. Put your pen down.” Fiona then asked if someone else might sit with her and take notes on her behalf, but the judge refused this request as well. Fiona tried one more time to explain that she had a brain injury. “You look pretty good to me” said the judge. “Sit down.” (at pp102-103)

You may have read in this week’s news about Judy Gayton. She is the plaintiff in a medical malpractice case in Provincial Court in Alberta who was forced to represent herself despite the fact that she has a severe brain injury (“Brain-damaged woman denied legal aid calls her case ‘frighteningly unfair’”).

The NSRLP first heard from Judy on October 1 this year. She asked whether we could help her find a legal representative who could take on her case. So began our efforts to find support for this remarkable woman, and a story of so many shocking aspects that the (very welcome) CBC attention this week can only scratch the surface. This week’s blog will share, with Judy’s permission, more details, and consider what her case means for Access to Justice for PWDs (people with disabilities) in Canada.

Because it was clear to me from that first message in October that what was happening to Judy was probably happening to PWDs trying to bring, or defend, claims in courts all over Canada.

Who is Judy Gayton?

Judy is a young woman residing in Medicine Hat, Alberta, who suffered a traumatic brain injury in a car accident in 2005 and further injuries in 2007. She receives AISH (Assured Income for the Severely Handicapped). She is the plaintiff in two civil cases, one arising from the original accident and a second against the Canadian Medical Protective Association for medical malpractice. Our involvement with Judy has been limited to the medical malpractice case.

For the record, NSRLP has no view on the merit of these actions. Our interest is in ensuring that as a participant in our justice system she is treated fairly. However, it is worth noting that there has been no effort to dismiss her actions under summary judgment procedures (increasingly common with SRL actions). Moreover, Legal Aid Alberta provided representation for 4.5 years in the medical malpractice case and is still supporting the personal injury action.

Judy is well-aware of the limitations of her cognitive ability, and her inability to moderate her emotions. In a September 2016 letter to the case management judge and to the defence, where she asked for a one-week extension to a filing deadline (a request which like every other was refused), Judy described herself thus:

“The disabilities I struggle with render things such as unraveling complex details like the Appeal Court rules for the Appeal Court Record extremely difficult for me. It takes me considerably longer to grasp new information, I misunderstand things, I struggle to focus, remember things etc. I am a person with disabilities. I am struggling to comply with the Courts demands of me. I am in a crisis. …(E)veryone knows that I comply to my best of my ability and have always attempted to put my best foot forward for the Courts consideration. So when and if I do not, it is because I am genuinely outside the scope of my abilities as a PWD.”

How did she get here?

Judy became a SRL when Legal Aid Alberta ended its support in late 2013 (a subsequent Rowbotham application for state-funded counsel failed in July 2016).

In 2014, Judy was designated as a person without capacity or competency to bring her own case under the Alberta Rules of Procedure s2.11(c). The definition of incapacity is drawn from the Adult Guardianship Act. This meant that Judy must have a “litigation representative” to act on her behalf (including filing documents and speaking in court).

Makes sense. Judy certainly agreed. Her medical experts supported the fact that she could not handle the case – whether as a negotiation or an adjudication – without a legal representative. Judy was adamant that she could not represent herself.

The problem, however, was finding a (competent, affordable, available) litigation representative. Judy had short-term help from two counsel, but quickly ran out of funds and found herself on her own again. This is where we came in.

Step 1: A Student “Coach”

Our first approach to assisting Judy was to match her with a law student “coach.” We have used student coaches to provide legal information and emotional support for SRLs for four years now, for the most part to family litigants (an ongoing joint initiative between Pro Bono Students Canada and the NSRLP). Mattie Marie Eansor, a 3L joint Law/Social Work student with a special interest in law and disability issues, volunteered to try to help Judy work out her next steps and respond to court documents. Over the coming weeks, Mattie Marie would spend many hours trawling through Judy’s documents, keeping in touch through emails, always trying to keep Judy calm and focused on her next steps. She did an amazing job. Judy described her to me as a “God-send.”

The case moved inexorably towards trial. A date of December 6th 2016 was set. In a panic, Judy tried to file for an adjournment to give her more time to find a pro bono lawyer, or at worst to prepare for trial. The court refused to accept her documents since as a person without competency she could only file via a litigation representative.

Stuck in a Catch-22

Judy was now in the ultimate Catch-22 – she was looking at an approaching trial with no legal representation and she was not allowed to file for a reasonable adjournment in order to prepare – or far better – secure counsel.

Thinking that this could not possibly be logical or just, I decided to informally contact a senior Alberta judge to make him aware of the situation. He kindly agreed to talk to the law student coach, and then to the local justices. However, his conclusion was that nothing could be done. “Some problems do not have solutions” he wrote to me.

Competency? “Turn your mind to trial”

Desirous of getting the case to trial, the defence now asked the case management judge to vary the competency order to remove the requirement for the litigation representative. The case management judge agreed. Instead of a litigation representative, he suggested, Judy could have a McKenzie Friend –a courtroom companion to take notes and sit silently beside her. Helpful for some SRLs but completely inadequate for someone in Judy’s position.

Judy asked if she could appeal this. The judge told her, “turn your mind to trial.”

At a subsequent hearing – for which NSRLP submitted an expert affidavit, worked on by me and my colleague Dr. Laverne Jacobs – no change was made to the order. The judge said that our affidavit was “interesting” but that it did not “apply” to Judy because she had been “disrespectful.” (Judy has certainly had a few meltdowns in court over the years; part of her condition is that she is unable to regulate her emotions when under high stress.)

Last-ditch efforts – and the inevitable result

In the final week before the trial date Judy tried – now with capacity – to file for an adjournment, but was turned away from the court office and told to “bring it up with the judge” on the day of trial.

We scoured Alberta’s pro bono organizations for someone to represent her.  Judy had tried these sources in the past, but we gave it one more go. Despite the best intentions of these good people, they are simply overwhelmed. One told me, “what bothers us the most are the clients we have to turn away.” And no one – let’s face it – wants to take on a trial for a brain-damaged client which begins next week…

Judy went to court completely alone on December 5th. She asked for an adjournment. The judge said no, come back tomorrow for trial. The next day,  Tuesday December 6th,, he dismissed her case.

A2J for PWDs in Canada

Before Judy, we had already been noticing a sharp uptick in the number of enquiries NSRLP was receiving from PWDs. We were hearing from individuals with all types of disabilities – physical, mental, emotional – who described the impossibility of representing themselves in an intimidating and often hostile justice system where they could not get the accommodations (audio, linguistic, signage, alternative devices, or other supports) that they needed. Worse, some described an institutional failure to understand their needs and being treated as a “complainer.”

Most PWD have marginal incomes. But given the limits on legal aid, PWDs were also being denied legal aid in a system that differentiated their unique needs from those of able-bodied people. In August, we received the welcome news that Elizabeth Portman, a PWD in the NorthWest Territories whom NSRLP had been supporting via email for several years, had succeeded in her case at the NWT Human Rights Commission (where she was assisted by my colleague Dr. Laverne Jacobs and also by the redoubtable Melina Buckley). The Commission accepted Elizabeth’s argument that her legal aid denial five years earlier was discriminatory, because it did not consider the impact of her disability on her ability to represent herself.

Creating a Kinder and More Just Legal System

We hope that Judy’s case will open the eyes of the public to the current failure to provide Access to Justice to Canadian PWDs. There are no easy solutions, but there must be solutions. Judy Gayton has now filed a human rights complaint in Alberta, using Elizabeth Portman’s decision (which is currently being appealed by the NWT government).

Judy wrote to myself, Mattie Marie and my colleague Dr. Jacobs just before the trial. I publish her words here because I believe that they remind us of the crucial importance of humanity, kindness and fairness in our justice system.

“There are no words for the gratitude I feel for how much you have all gone out of your way to help me.”

Sorry to state the obvious, but we have a lot of work to do here.

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Comments (17)

  • allen

    I have posted about Alberta’s most celebrated vexatious litigant before. I must say I am not sure which one of us is the enviable title holder but I am sure most SRLs must have heard of Victoria Wong. She is brain damaged as well and a judge without good reason except the required temperament of judge took advantage of this woman same place there in Alberta. No wonder Alberta has lost his blessing-its advantage” and is now a pauper’s paradise

    The judge ordered security for cost $10, 000 from Ms Wong after without any legal evidence that she had magically returned to mental capacity. She was declared vexatious in a rather abusive way. Ms Wong like the women here mentioned had h a traumatic brain injury too

    In my own case because of an accident in 2005 I was laid up for a while and could not pursue my case. mentally I was unfit to go to court and physically I was unfit as well. Just about then the rules changed and during the transitional rules period two lawyers applied to hav emy case dismissed for wan to prosecution. No explanation or medical evidence I could show could satisfy the judge as to why it was a bad idea for me to come to court during the time I could not. My case was dismissed contrary to the rules. At appeal court same thing happened despite one of the panel of judge’s did express dissent but never wrote anything. Next thing I was declared vexatious despite th eignorant judge saying I am not malicious. One has to be malicious in order tobe vexatious but not in my case. A certinlocal univerity full of hypocrits published a story about “refinging vexatiousness” instead of calling out the crookedness. That;s why I was not too impressed when they took action against a certain judge for I found it hypocritical. I could say lots more about them

    As much as NSRLP is differentiating these access to justice issues they all come down to one thing in my humble opinion and that is the crookedness and often the egotism on the bench. Too many of our judges are misbehaving on the bench and plain and simple too many think our court rooms are for them to do as they please. All of that spells injudicious conduct. It is not the varied issues with which SRLS turn up in court but rather the problem with the court itself. . Injudicious conduct is the problem

    December 12, 2016 at 7:11 pm
  • Twechar


    It is very clear that if you’re looking for a sympathetic judge in Alberta is likened to leaving the porch light on waiting for Jimmy Hoffa to come back home!

    December 13, 2016 at 11:10 am
  • Arif

    1-I would like to learn the insurance companies names and any connection with any banks.
    2-Seems like their lawyers are already sold out and most likely judges too.
    3-In Ontario same criminal organization fallwing the same steps.
    4-I am suggesting her to fill up a complaint form against Canadian government (because judges are federal judge)UN human rights council to make them aware of the situation.
    5-contact and call observer to her trial from ODHIR international human rights organization for fair trial.
    E-mails are :tina.gewis@odihr.pl, PublicAffairs@odihr.pl
    6-Write to mp’s about the situation.

    December 13, 2016 at 12:05 pm
    • sandra olson

      i will speak only from my experience out here in BC. the politicians are on board with the courts. no help would have helped because they, both the courts and the politicians want to silence you and get rid of you. the only thing that has a chance, is international. that one i have not tried, but will. thank you for the lead.

      December 13, 2016 at 3:26 pm
    • sandra olson

      i have already contacted prime minister Trudeaus office, they referred me to the attorney generals office, who told me to beat it. no interest in any politicians offices for justice of any sort.

      December 13, 2016 at 3:40 pm
    • Judy Gayton

      Thank you for your consideration and important suggestions Arif.

      December 13, 2016 at 7:37 pm
  • Barb Kueber

    Great article, thanks!
    It a bit much that the judge wouldn’t let her take notes, I thought all the provinces had human rights codes that prevented this type of discrimination and guaranteed accommodation,
    She likely wouldn’t have gotten any help at all in Ontario, she might have gotten a bit of general summary advice from ProBono law, but even that’s not certain. I believe in our court of appeal, there is amicus counsel available one day per week.
    I caught this decision.

    December 13, 2016 at 1:27 pm
  • koba

    I am sorry to hear this story. Is it possible to appeal the decision on the grounds such as procedural unfairness and discrimination against disability? The Courts are obligated to provide services without discrimination, which includes discrimination against disability.

    I am afraid that the Alberta Human Rights Tribunal may say that it does not have jurisdiction over the judicial function of a judge because judges are protected by the doctrine of judicial/adjudicative immunity. I am also afraid while there is an appeal process, her Application in the Human Rights Tribunal, depending and what she claims, could be considered as a collateral attack.

    I am a foreign trained physician. If she wants, I can go through her medical file only to see if I can find any medical negligence.

    December 13, 2016 at 2:20 pm
    • sandra olson

      yes, the courts may be obligated to provide a fair and reasonable legally based decision. but if you look at the number of stories out there on how they are NOT doing what they claim to be obligated to do, it should be obvious, they feel no conscience or responsibility to those who they injure while NOT following these guidelines. the courts THEN claim that you are being treated this way because it is YOUR OWN FAULT. they have done nothing wrong, you showed up in court without a lawyer, so boo hoo to you. we have the charter, we have court evidence rules etc etc, but if the courts refuse to follow them. claiming they have an obligation to do so implies something that does not exist. a sense of responsibility to the public, and a conscience.

      December 14, 2016 at 2:46 pm
    • Judy Gayton

      Thank you for your consideration of the extraordinary circumstances of my case Koba.
      I see your concerns. I tried to read the case being used as precedence but it was over my head. So although I am unclear about the exact nature of the HR complaint, I don’t think it is about the injustice the Courts levied against me as an impoverished PWD often forced to SR. It is about other systemic failures to assist PWD. I have faith that Dr. Macfarlane and her team understand the value of the process and a good Human Rights lawyer has offered to assist.
      Thank you for the kind and generous offer to review the medical file for negligence, in which there is also assault, battery and fraud, some of which is noted in the statement of claim.
      I have an excellent expert witness who supports my case who attended upon the defendants dr’s as a brain injury survivor, was misdiagnosed and drugged with neurotoxins known for 40 years to cause brain injury. I suffered 3/4 adverse drug events in 3 months all of which almost killed me, resulting in coma, stroke and numerous diseases. The dr’s breached 12 standards of practice including repeated failure to provide informed consent and breached my right to refuse ‘treatment” when I knew I was dying and begged for my life.
      Brain injury survivors are highly vulnerable to the known iatrogenic re-injury that all neurotoxic psychotropic drugs cause. According to my expert, these drugs are contraindicated and not approved for use in brain injury survivors. As a group, we are at high risk of suicide, homelessness, incarceration in prisons and psych wards. Victims of domestic violence, such as myself, suffer more brain injuries than NFL football players and suffer CME and other dementia’s such as MS and Alzheimer’s disease. These drugs are further harming and in no way helping us. This case speaks to the importance of safe, effective, proper ‘wait and see” care and rehabilitation for survivors so we have a chance to heal as opposed to being rendered further disabled. I greatly appreciate your offer however and if under the circumstances you wish to speak to my current experts, I would have to leave that up to them. As per my Dr’s, I am not competent to try this case, a fact that did not bar the court from forcing me to try and lose it.

      December 14, 2016 at 3:13 pm
  • Judy Gayton

    Thank you for bringing the Appeal court’s decision into the discussion Barb.
    There are 4 errors in the 1.5-page decision by the Appeal Court that I believe should be corrected in the public interest.

    The most important issue is that the appeal is alive- sitting in sini die. It is not doomed to fail and could have garnered me state funded counsel, which the dr’s enjoy, courtesy the government’s 3-billion-dollar tax payer fund (not insurance) via the Canadian Medical Protective Associations (CMPA). So while the Drs are provided with state funded counsel, Med Mal victims can’t even get Legal Aid to assist them owing to a recent policy change. Legal Aid $80 million, CMPA 3 billion; you do the math. Our government is funding one side of the litigation against the public interest. Further there are but a hand full of Med Mal lawyers that work for Plaintiffs so most of these cases never see the inside of a court room.
    However if the lawyer who addressed the application, followed through with the appeal, my problem could have been solved. And it still could be.

    Justice Rowbotham’s states:
    [8] The respondents ask that I dismiss the appeal on the basis that it has no merit. That application must be brought before a panel of the court: Rule 14.74(c).

    So although the NOTICE OF APPEAL was struck, but could be refiled. The APPEAL ITSELF has NOT been dismissed and the defense must bring an application before the AC panel to dismiss it.

    As such, the Plaintiff could also refile it to be properly heard. Because it is not doomed to fail, having refused to even provide me with the chance to do that before dismissing my case was a callous injustice.

    There was no way I could try this geometrically complex med mal case with 13 banker boxes of medical/legal docs, with a brain injury, without counsel or my expert witness’s – who will NOT work for SRL. I was set up to fail.

    If this decision is not appealed it will set a dangerous precedence for PWD and SRL alike, where it will be somehow acceptable to force them to try Med Mal cases themselves without an expert witness- when in fact if you do not have an expert witness in a med mal case, you cannot even go to trial – IT’S OVER.

    And yet, I was not only allowed to do so, I was in fact forced to do so under very disconcerting circumstances. The question is will I be able to find a lawyer in this province willing to address these critical public interests appeals or have things just gotten a whole lot worse for all Canadians?

    December 13, 2016 at 7:02 pm
  • Twechar

    Why are the Superior Courts no longer a place where one can go to obtain justice? What is the reasons that SRL’S are being treated so badly before Superior Court Justices? Am I naive or is it ,that our system of justice is regressing below third world status ? (Apologies to third world countries). Is there no humanity in the judiciary?

    December 13, 2016 at 7:37 pm
  • Koba

    Hello Judy,

    I am glad that you were able to secure some help. Is your expert witness a medical professional or a brain injury survivor or both? Can they be considered as credible sources before the expert medical witnesses that may be called by your defendants?

    As far as I learned, physicians are allowed to make mistakes. It is only the negligence that will allow the courts to award damages. So, the focus must be on proving the negligence rather than the errors, which another reasonable physician with the same level of qualifications and experience, in your physician’s place, may also make.

    Also, a treatment without consent is battery. However, often the defendants may try to establish that there was implied consent or that even if you knew the information that you now alleged to have not known at that time, you would have anyway consented to that treatment because there were no other better options.

    It is very important that you well prepare your case; otherwise, there may be big cost consequences. Like you said, Canadian Medical Protective Association is a very wealthy organization, which vigorously fights against the negligence claim leaving very less chances for the plaintiffs to win their cases. However, they cannot hide an obvious negligence in anyway. Therefore, it is important to first identify the negligence, which another reasonable physician with the same level of qualifications and experience, in your physician’s place, might have not made; and then, prove it. If your expert witnesses have any question, they are welcome to talk to me.

    Wish you all the best!

    December 14, 2016 at 10:14 pm
  • Tony Kenny

    Same Bull**** in Ontario. POA court, Civil Court and ODSP and CPP Disablity Tribunals.
    I have terminal heart condition and doctors notes not to proceed!

    What Happened to Human Rights?

    Oh! File more court papers!

    December 20, 2016 at 12:30 pm
    • sandra olson

      they are counting on you dying before you get to court. our judicial system does not care about the people, or their rights.

      January 3, 2017 at 1:47 pm
  • Deena J Addis

    I am not just reaching out because Judy is a friend but because this is a travesty. I worked over half of my life behind bars and those who committed the worst crimes had legal representation, many of them legal aid. Those who should have helped her harmed her. We need to be better than this. Don’t victimize her over and over again. It is hard enough to experience what Judy has gone through and what struggles and difficulties she lives with every day and will for the rest of her life. It’s time for people to make a stand and scream. No!!!!! We have to be better than this which seems to be a lot more wide spread than people are aware.

    December 23, 2016 at 12:43 pm
  • Judy Gayton

    Can I write you privately Koba?

    December 23, 2016 at 2:28 pm

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