We have all heard about Canada’s increasingly underfunded legal aid programs, escalating private market legal costs, and the scarcity of lawyers, especially in smaller, rural and remote communities. This has resulted in what many have termed an access to justice crisis. Indeed, the Canadian Bar Association has set targets for 2030 to equalize access to civil justice, as reported in this column in August 2013. The Toronto Star recently reported on programs in New York City, Windsor, and England and Wales where Self-Represented Litigants (SRLs) get support from students and other advisers who are not lawyers but have some training to find their way through the system — significant in those jurisdictions. But 2030 is 15 years down the road and a long wait for large‑scale system change; in the meantime, we have to live with the significant negative consequences to the legal system.
Much has been written on the effects of this crisis on people who need and cannot get legal representation to defend or assert their rights. Academics are studying the impacts on those who “go it alone.” For example, Dr. Julie MacFarlane, a University of Windsor law professor, has established the National Self-Represented Litigants Project (NSRLP), which is committed to “collaboration to enhance the responsiveness of the Canadian justice system to SRLs, and to continuing dialogue among the stakeholders who include SRLs, lawyers, judges and court services staff.” The NSRLP provides a forum through its website for SRLs to share their challenges in the justice system.
Judges too have written about the consequences of the lack of representation on the justice system. Supreme Court Justice Thomas Cromwell led the Action Committee on Access to Justice in Civil and Family Matters which released its report in October 2013. The report begins with the observation that “there is a serious access to justice problem in Canada,” and advocates for major change. Lower court judges face the consequences of this problem on a daily basis, and their frustration sometimes comes through in their decisions. Justice Quinn, of the Superior Court Justice in Ontario, is a judge known for not mincing words. In a characteristically pithy decision from late 2014, Justice Quinn summarized the challenges of self-representation for the court , the all-too frequent result of the access to justice crunch. Quinn J. says:
Presiding over a trial with self-represented litigants is unfulfilling and of debatable utility. The parties usually do not know what they are required to prove and, if they have an inkling, they have no idea how to do it. Efforts to turn them into overnight-lawyers are not sensible.
The impact, however, on the other parties to these proceedings — and their lawyers — has not received as much attention. When a party does not have counsel, the cost to the other party immediately and significantly increases. When faced with litigation initiated by or against SRLs, these clients end up paying more. Here’s how.
First, lawyers acting against SRLs have more duties. We are obliged by the Rules of Professional Conduct under various law societies to take certain steps to reduce the disadvantage to the self-represented litigant. This increases lawyers’ time on a file, and costs their clients more in fees.
Second, courts quite properly need to give SRLs the benefit of the doubt procedurally. In the normal course, when two parties to litigation have representation, counsel for each side follow the rules, exchange the necessary documents and facilitate the litigation, proceeding in an orderly and timely fashion. However, if one side is unrepresented, judges are obliged to take steps to even the playing field. For example, hearings get adjourned to allow more time for an SRL to get prepared; SRLs are allowed to provide evidence in a way that makes sense to them and the court, rather than in the way that is set out by the Rules.
Third, while among lawyers there are codes of civility — followed to greater or lesser degrees — SRLs are, of course, not bound by them. There is a generally accepted courtesy among lawyers to respond to communications in a timely way, to agree to reasonable schedules to move a case along, to accept service of documents and so on. SRLs often fail to meet the accepted norm of courtesy. Some are simply unaware of the protocols; some take the approach that as we are adversaries in the process, they will be adversarial; and a few, sadly, are seasoned SRLs and know how to use their status to justify difficult behaviour.
And so what of this, you say? Deep-pocketed litigants can surely accept this as the cost of doing business — presuming that from time to time, there will be a case in court that costs a little more and this is acceptable given the access to justice crisis.
But not all litigants have deep pockets. Take for example a nonprofit housing co-operative. It relies primarily on monthly payments — rent from its members/occupants to meet its financial commitments. If one or more of those members fails for whatever reason to pay, and this persists over time, ultimately the others in the co-op must pick up the slack, either through reduced service or through increased rents. The only way to resolve a non-payment situation like this is to begin an eviction proceeding. Someone down on his or her luck like the non-paying housing co-op member is exactly the sort of person less likely to get representation and become an SRL. And so the burden on the co-op of the member’s non-payment is first made worse by the costs of litigation, and then by costs which escalate by the presence of an SRL.
Litigation for nonprofits, charities and co-ops is already barely within reach. Litigation for these groups where the other side is self-represented can be financially crippling.
We urge all involved to look for more immediate approaches to addressing the access to justice crisis.
Iler Campbell LLP is a law firm serving co-ops, not-for-profits, charities, and socially-minded small business and individuals in Ontario.
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