Self Represented Litigants

Self Represented Litigants

Any litigation lawyer will vouch for the fact that dealing with self- represented litigants can be extremely frustrating.

In fact dealing with self represented litigants can be so difficult that lawyers should inevitably seek a judge to case manage the process and make orders as required.

Sull v Pengelly 2019 BCSC 575 describes the obligations of self-represented litigants.

In Pintea v Johns 2017 SCC 23  the Supreme Court of Canada endorsed the statement of principles on self- represented litigants and accused persons that had been established by the Canadian judicial Council in 2006.

That statement recognize that self represented litigants are often at a disadvantage when the opposing side is represented by counsel.

Self represented litigants are often unaware of the legal principles and practices that govern their legal dispute and are unaware of the legal resources that may be available to assist them in bringing for their case.

Most of the statement of principles consider how the courts can assist self represented litigants by making the court process simpler and more transparent, and also acknowledges that self represented litigants have various obligations.

The obligations of a self represented litigant include:

a) familiarize themselves with the relevant legal practices and procedures that pertain to their case;
b) prepare their own case,
c) be respectful of the court process and the officials within it.

The statement of principles in these various specific obligations of the recognized in several decisions, including 09217613 BC LTD v 0941187 BC LTD 2015 BCCA 457 at paragraph 64 – 65.

The obligations of self represented litigants as also been addressed in Hanlon v . Nanaimo 2007 BC CA 538 which stated in part:

“ the mere fact, the party’s self represented is not a basis in which to depart broadly from the rules that govern litigation, for the administration of justice is not well served by an imbalance in the latitude afforded litigants.

In this jurisdiction, self represented litigants are often offered guidance at the trial management conference that precedes every trial.

A number of cases confirmed that court should be lenient in instances, for example, where a self represented litigant has not complied with some procedural requirement. The obligation to prepare the case, however, particularly in relation to the assembly and production of documents in the presentation of relevant evidence, lies with the litigant. This includes self represented litigants.

The Rising Trend of Self Represented Litigants

Self Represented Litigants

The Ontario Court of Appeal in Moore v Apollo & Beauty Care 2017 ONCA 383 discussed the increasing trend of self  represented litigants appearing before the courts.

Self represented litigants present a problem for both the Court and any opposing counsel due to their general unfamiliarity with the procedures of court.

The Court stated:

[41]            The new reality of civil litigation in public courts is the significant number of parties who are not represented by a lawyer, but present their own cases. Presiding over a trial where a party is not represented by a lawyer poses distinct challenges for a trial judge, and also brings with it distinct responsibilities.

[42]            Both the challenges and responsibilities are succinctly described in the Statement of Principles on Self represented Litigants and Accused Persons (the “Statement”) issued by the Canadian Judicial Council in September 2006. The Supreme Court of Canada endorsed the Statement in Pintea v. Johns, 2017 SCC 23.

[43]            The main challenge faced by a trial judge when a party is not represented by a lawyer lies in the difficulty of managing an adversarial proceeding when one party lacks formal training in the law and its procedures. As described by the Statement, at p. 3:

Self represented persons are generally uninformed about their rights and about the consequences of choosing the options available to them; they may find court procedures complex, confusing and intimidating; and they may not have the knowledge or skills to participate actively and effectively in their own litigation.

[44]            While self represented persons vary in their degree of education and sophistication, I think it safe to say that most find court procedures “complex, confusing and intimidating.” That state of affairs gives rise to the responsibility of judges to meet the need of self-represented persons for “simplicity” and to provide “non-prejudicial and engaged case and courtroom management” to protect the equal rights of self-represented persons to be heard: Statement, pp. 4 and 6.

[45]            The Statement, at p. 7, offers specific advice to judges about how to meet their responsibilities to self-represented persons in the courtroom environment:

Judges have a responsibility to inquire whether self represented persons are aware of their procedural options, and to direct them to available information if they are not. Depending on the circumstances and nature of the case, judges may explain the relevant law in the case and its implications, before the self-represented person makes critical choices.

In appropriate circumstances, judges should consider providing self-represented persons with information to assist them in understanding and asserting their rights, or to raise arguments before the court.

Judges should ensure that procedural and evidentiary rules are not used to unjustly hinder the legal interests of self-represented persons.