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Monday, November 30, 2015

National Self-Represented Litigants Resource Blog

University of Windsor Law Professor Julie Macfarlane began a project a couple of years ago to research the steadily increasing phenomenom of individuals self-repesenting themselves in Court - Family Court in particular.   The first step was to conduct a survey of users - Judges, Lawyers and - of course - Individual Litigants (aka SRL's or Self-Representation Litigants) in Ontario, Alberta and British Columbia (whose Provincial Judicary funded her).   That result was presented to various participants at numerous Legal Conferences in 2014 (and since) - drawing a generally positive response from all parties.   Individual SRLs accross the country were pleased that SOMEONE other than more Lawyers were being asked their opinions on the challenges facing the Courts.

The result was an on-going committment to the project - including interactions with Provincial Judiciary, Lawyers and Self-Represnted litigants on major topics and issues - including a regular blog!

RepresentingYourselfCanada.com

In that regard I would like to recommend 2 recent posts.

Beyond the Justice Camp Debacle - which discusses the very public scourging of a Federal Judge - Justice Robin Camp of the Alberta Queens Bench over his comportment in a Rape Trial presented in a complaint to the Canadian Judicial Council (CJC) by a cadre of Law Professors from the University of Calgary (AB) and Dalhousie (NS).    Apart from any comment on the complaint, it was encouraging that RepresentingYourselfCanada (SYC) pointed-out that there are BIGGER questions being raised by this complaint - specifically, is the current process for criticising Judges improving the publics confidence in our judicial system?

From the perspective of a SRL I would surmise NO - and indeed SYC notes that out of almost 500 complaints recieved from 2011-2014:
  • Just 2 of 176 complaints investigated from 2011 – 2014 were upheld (about 1%)[2]
  • The current complaints system at the Canadian Judicial Council is without credibility. The CJC acts as a club to protect judges from complaints, not as an investigative body.
  • Public confidence in the judiciary is chronically damaged as a result.
Dr. Macfarlane makes 3 recommendations:
  1. The CJC needs public representatives who participate in the oversight of judicial conduct.
  2. The CJC needs a transparent and user-friendly process that takes every complaint seriously.
  3. The CJC needs to commit to real accountability, which aims to enhance trust between the public and the judiciary, not to damage it yet further.
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Another very topical issue addressed in the blog is about a trend that has apparently become recognized by SRL's in Ontario - potential abuse of Summary Judgement Procedure (SJP) by Lawyers facing SRL's. Here was how the situation presented itself.
In April 2015, our attention was brought to a decision by Chief Justice Richards in Hope v Pylypow (2015 SKCA 26)[1], which I blogged about[2]. Chief Justice Richards was highly critical of an earlier Chambers decision to strike the pleadings of a SRL couple finding “no cause of action” – and further critical of the conflation the Chambers judge seemed to make between a finding of “no cause” and “vexatiousness”.
We began to wonder – was an application for summary judgment emerging as an intentional strategy used by represented parties against SRLs, labeling them as vexatious and appealing to the concerns of judicial officers about SRLs “jamming up” the courts?
And if this was becoming a strategy, how successful was it?
Dr. Macfarlane's conclusion is troubling. 
The results suggest that SJPs are increasingly being used successfully against SRLs. And given the results we see even when we remove cases formally or informally referencing “vexatiousness” or “process abuse”, this suggests that many cases are being struck because of technical errors that are unintentional and could be addressed if SRLs had more assistance.
We note that Alberta's Associate Chief Justice - Justice John D. Rooke - has made a name for himself in legal circles over the past few years regarding "vexatious litigants" during his well followed "Meads vs Meads" 2012 decision.  The decision is among the most widely requested/searched on the CANLII Online Legal database.

Hence assuming that Judges and Lawyers in Alberta would be more mindful of what constitues a truely vexatious claim - it would seem unlikely that this ploy would be sucessfully deployed in an Alberta Court.    However exloiting a SRL by invoking a SJP may be more common and effective without "leaving a mark" on the unsuspecting victim.

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