Self-Represented Litigants have Mountains to Climb - LawNow Magazine

Self-Represented Litigants have Mountains to Climb

climbing-850471_1920Self-represented litigants present a host of challenges to some of the core assumptions of the legal system. Here are three of the most significant issues.

Access to Justice

The right to a fair trial is a principle of fundamental justice in Canada. If the unrepresented litigant is a lay person, this right to a fair trial might be infringed based on procedural issues alone. Judges in Canada have been attuned to this possibility and provided some common law solutions to assist self-represented litigants. In A(JM) v Winnipeg Child & Family Services, Scott C.J.M. acknowledged that courts should offer some assistance to unrepresented litigants. Furthermore, it was also acknowledged in Dunsmuir v New Brunswick that the exact amount of assistance that will be required will vary from case to case, largely based on what is required for a litigant to understand proceedings. Judges in these circumstances must be careful, however, because it is possible that they may compromise judicial neutrality if they are viewed assisting a litigant too much.  This is the Catch 22 with self-represented litigants. It has placed judges in the impossible situation of trying to reconcile competing ideals to maintain the integrity of the legal system. Obviously, it would be ideal to get all of these litigants representation, but this is most often easier said than done.

Litigants in the representation gap are those individuals too poor to afford to retain a lawyer, but too rich to gain access to most pro-bono services.The Cost of Litigation

According to the National Self-Represented Litigants Project, the most common challenges self-represented litigants reported in legal proceedings are the ability to afford legal representation and the difficulty of understanding legal forms. A two-day civil trial in Canada costs an average of $31,330. appearance. By contrast, Statistics Canada reported that the median household income in 2014 was just $78,870 across the country. Therefore, an average two-day trial with representation costs around 40% of the median Canadians household income for the year. Most potential litigants effectively have to choose between justice and rent. Furthermore, there is some legal authority that has been floating around that suggests litigants may not necessarily be eligible for lost wages when preparing for trial. These factors may have a double effect on litigants by causing those willing to put in the time to research to self-represent and risk losing wages, but it may also cause many people to forego enforcing their legal rights entirely because they view it as not worth the time and money.

Litigants in the representation gap are those individuals too poor to afford to retain a lawyer, but too rich to gain access to most <em>pro-bono</em> services. The Representation Gap

One of the main problems with self-represented litigants is that many, if not most, fall into what could be called the representation gap. Litigants in the representation gap are those individuals too poor to afford to retain a lawyer, but too rich to gain access to most pro-bono services. In Edmonton, for example, there were 66 services available for self-represented litigants in 2007. Of those, 42 only provided information and only 14 provided services beyond information, almost all of these exclusively served the low-income community. These organizations are forced to turn away individuals above the arbitrary cut-offs, even if they would prefer to be able to help them. For litigants who are confused and scared by the legal system, they are unfortunately forced to attempt to argue their case without always knowing the traditions and expectations of court.

The right to a fair trial is a principle of fundamental justice in Canada.The representation gap presents one of the greatest challenges surrounding access to justice. Many of the organizations that are providing assistance to self-represented litigants lack the resources and expertise to act as agents for these people and, in some provinces, they may not even be allowed to depending on provincial laws. There is no easy solution to this problem, but that is not to say that the legal information provided by organizations, such as Pro-Bono Students Canada cannot provide significant assistance to self-represented litigants. Most legal clinics across Canada can help to explain legal forms to litigants. Every Canadian law school has an organization to help provide legal information to those who need it. Litigants may also want to seek out the lawyer referral service to perhaps find a lawyer that might be willing to work for less, or at least can provide a free consultation. Furthermore, most major centres have a Dial-A- Lawyer service that will help litigants with some basic information. These services are all great for getting some initial consultations and possibly explaining some forms. However, for those litigants in the representation gap terrified to present a legal argument, systemic change may be the only solution.


Owen Le Blanc
Owen Leblanc is a law student at the University of Alberta in Edmonton, Alberta. This article was produced as a project in the Pro Bono Students Canada program.

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