The civil justice system is in crisis. In a variety of legal contexts, self-represented litigants now represent the majority of litigants. Whether it is landlord-tenant, family, employment or debt-collection matters, statistics confirm that a vast number of individuals are compelled to represent themselves.
Thus, to continue to adhere to a policy that seeks to provide more legal representation to those who cannot otherwise afford it is unrealistic at best. More likely, it is throwing bad money after good.
The unbundling of legal services whereby lawyers offer limited services to those who cannot afford to retain a lawyer has also been described as the pragmatic alternative when compared to full representation.
Empirical evidence suggests that, while unbundling might help individuals’ perceptions of the legal process, it may not actually change the legal outcome for unrepresented litigants unless they have full representation.
As such, when it comes to unbundling, neither the lofty goal of full representation (which remains significantly unmet and practically unattainable) nor the pragmatic approach is likely to meaningfully narrow the growing justice gap. Self-represented litigants will remain hostages to fortune.
Thus, instead of focusing exclusively on supply-side solutions, it is perhaps time to focus more directly on what has been termed demand-side solutions.
These are solutions that look at how selfrepresentation may be better incorporated into the civil justice system.
The goal would be the promotion of the parties’ meaningful participation in the decision-making process that affects them regardless of whether they are represented by legal counsel.
The reality is that self-representation calls into question a legal system that grounds ideas of fairness and justice in a process that assumes two equally trained professionals presenting their cases to a passive and neutral adjudicator.
However, if one of the parties ostensibly has one hand tied behind their back (due to a lack of training or knowledge), it is no longer a fair fight. And if it is no longer a fair fight, then it is time to critically consider the workability as well as legitimacy of such a dispute process. In the interests of procedural fairness, it is no longer possible to associate impartiality and neutrality with passivity.
This is where the role of the judge becomes pivotal in securing the proper administration of justice — a role recently reviewed by Justice David Brown in Moore v. Apollo Hair and Beauty Care (Moore).
On appeal, a self-represented plaintiff alleged that the Small Claims Court judge hearing her claims of constructive dismissal misconstrued her evidence respecting a claim for unpaid wages.
This was based on the fact that the judge failed to assess a short statement she made during her evidence-in-chief. Her answer to one question appeared to contradict the other evidence that she had presented in her case. The trial judge further failed to make inquiries before concluding that the plaintiff was abandoning her claim.
In making these determinations, Brown said, “[Deputy judges of the Small Claims Court] daily face the challenge of trying to modify an adversarial civil litigation process historically predicated on representation by counsel to the increase in self-representation by parties. Nevertheless, such is the new reality.”
Brown’s comments reflect the need to articulate a new role for trial judges vis-à-vis self-represented litigants.
In light of cases like Moore, the debate can no longer be about whether judges should treat self-represented litigants as they would treat counsel. Rather, the focus must be on the efforts necessary to engage an appropriate degree of judicial intervention that will ensure that non-lawyers are provided with a fair opportunity to present their cases and participate meaningfully in the legal processes that affect them.
In this vein, in 2006, the Canadian Judicial Council articulated guidelines that judges should follow in cases involving self-represented litigants — guidelines that were recently endorsed by the Supreme Court of Canada in the decision of Pintea v. Johns, 2017 SCC 23. Although these guidelines have been in place for some time, the number of self-represented litigants continues to rise as do the cases highlighting the challenges facing the judiciary in such cases.
Given this growth, such guidelines are no longer sufficient to address the challenges facing judges within the civil justice system.
Questions about the scope of a judge’s duties and responsibilities in cases involving self-represented litigants are in urgent need of concrete answers. There must be a move beyond the discussion of principles to efforts to articulate how judges are to conduct legal processes involving self-represented litigants. Such a shift will likely call on adjudicators to intervene in the legal process; they would more actively and consistently engage with the self-represented litigants.
In this sense, the time for mere tinkering with the existing adversarial process has passed. Rather, there is a need for an engaged re-framing of the judge’s role within those processes to better and more fairly incorporate self-represented litigants.
Such an endeavour requires a different view of the problem. Self-representation must be seen for what it is — a new reality that demands new processes and new roles for those who inhabit and control the legal system. Instead of viewing self-represented litigants as a problem for which some form of reduced legal representation provides the best answer, it behooves lawyers and judges to make a less makeshift and more adequate response.
The consequence of failing is a loss of legitimacy in the legal system by those who seek justice from it.
It may be that how we deal with the challenges of self-represented litigants will be a measure of our true commitment to genuine access to justice. In a manner of speaking, as goes the plight of self-represented litigants, so goes the quality of the legal process.
Jennifer Leitch is a lawyer and research fellow at the Canadian Forum on Civil Justice, as well as an adjunct professor at Osgoode Hall Law School and University of Toronto Faculty of Law. Previously, she practiced civil litigation at Goodmans LLP.