representing yourself in court Archives

Representing Yourself at the Tax Court

August 30, 2016 By Owen Le Blanc

The Tax Court of Canada has gone to some lengths to make information available for self-represented taxpayers who want to appeal a tax decision. The website of the Court prominently displays a tab for Self-represented litigants. Under the tab there is a wealth of information about forms, procedures and the Court itself. This information can be found at: http://cas-cdc-www02.cas-satj.gc.ca/portal/page/portal/tcc-cci_Eng/Litigants

Pro Bono Students in Edmonton, Toronto, Montreal and Ottawa now assist low-income taxpayers in Tax Court.For many Canadians, few things are more destructive emotionally or financially than a legal dispute. The legal system exists to resolve the inevitable conflicts of humanity. We have left behind the days of Game of Thrones style trial by combat for a significantly more complicated procedure. The challenge of the legal system is not just to resolve disputes, but to decide a fair resolution between two sides, both of which have merit. Even for those with legal training, however, the legal system can be a dizzying array of statutes, regulations, and confusing judgements. The Canadian Income Tax Act, for example, is over 2600 pages of complex small print legalese. For the average person, just getting started with this document can be a daunting task of figuring out exactly where in that 2600 pages the solution to one’s legal problem can be found. Clients pay lawyers to wrestle with these unwieldy documents so that they can go about dealing with other aspects of their lives. It stands to reason that if one side of a dispute has legal representation and the other does not, then there may be an inherent unfairness in the judicial proceedings.

Every Canadian law school has an organization to help provide legal information to those who need it. According to Pro-Bono Students Canada, there were an astounding 5000 self-represented litigants in the Canadian tax courts alone between 2008 and 2012. Many of these individuals had a legitimate claim against the Canada Revenue Agency, but they ended up losing their cases due to lack of expertise. The Honourable Gerald J. Rip, Chief Justice of the Tax Court, suggested that Pro-Bono Students Canada begin a tax advocacy project to help cope with this problem. It is easy to see why Chief Justice Rip thought this was a good idea. If self-represented litigants come to view the legal system as unfair, then they may begin to lose confidence in it and Canada would be left with a justice system that denies justice. Lack of access to justice represents a problem where the very legitimacy of the legal system as a way for all Canadians to resolve disputes is at stake. As a result of Chief Justice Rip’ suggestion, Pro Bono Students Canada began a Tax Advocacy Project. Pro Bono Students in Edmonton, Toronto, Montreal and Ottawa now assist low-income taxpayers in Tax Court. The University of Ottawa common law section has begun a pilot project that has four students working in two teams to advocate on behalf of unrepresented taxpayers in the Tax Court’s informal procedure appeals. Students meet with the taxpayer who is appealing, research the relevant law and prepare for hearings at the Court.

Hurdles for Self-Represented Litigants in Small Claims Court

August 23, 2016 By Amer Mushtaq

The rules and processes at Small Claims Court were designed to be simple and flexible, so that everyday people could have their disputes resolved without hiring lawyers or paralegals. However, the reality is that many self-represented litigants continue to face significant hurdles in accessing the justice system through Small Claims Court without professional help.

..the self-represented litigant must remember that a courtroom is probably the only place where what matters the most to a judge is the strength of a party’s argument and the relevant evidence. This problem has become significant in the last few years, as more and more people are representing themselves in Small Claims Court. Due to the significant rise in self-representation, one hopes that the court system will evolve to better meet the needs of self-represented litigants. In the meantime, here are answers to some of the common issues that the self-represented litigants are currently facing.

Where to Begin: does your case belong in a Small Claims Court?

Monetary Jurisdiction

Each Canadian province has enacted specific legislation for small claims matters. This legislation deals with various relevant procedural matters. For instance, the legislation will confirm the monetary jurisdiction of a provincial small claims court or lay out the procedure for determining which specific court office location to choose when commencing a court action in a small claims court. In Alberta, for example, a claimant can seek monetary remedy of up to $50,000 in the Provincial Court – Civil (commonly known as Small Claims Court), whereas in Ontario, the monetary limit is $25,000 in small claims court. Self-represented litigants must check the applicable provincial legislation to ensure that their claim is commenced in the appropriate court.

Subject Matter of the Claim

Sometimes, when a case is within the monetary jurisdiction of a small claims court, a litigant may still not be permitted to issue a claim there. For instance, in Ontario, when a case is specifically related to a human rights discrimination matter, the only place a litigant can file his case is with the Human Rights Tribunal. Similarly, the majority of landlord and tenant matters cannot be commenced in Small Claims Court in Ontario, but only in the respective provincial landlord and tenant tribunals. In Alberta, on the other hand, landlord-tenant disputes are properly adjudicated before the small claims court. Therefore, it is important for self-represented litigants to consider whether the subject matter of their claim properly belongs to a small claims court.

Court Location

..our court systems do not allow “trials by ambush”. This means that each side is entitled to know the full extent of the other side’s case well before the commencement of trial. Many self-represented litigants in Ontario assume that they can simply commence their claim in a small claims court near their home or place of work. This is not true. A claim in small claims court must be commenced in a specific court office based on Small Claims Court Rules. Based on these rules, a self-represented litigant can choose the appropriate court office in one of the three ways: a court office in the territorial division where the disputed events occurred, where the defendant lives or carries on business, or the court office that is nearest to where the defendant lives or carries on business.

Preparing for Trial

Persuasive presentation at trial requires a lot of preparation. A self-represented litigant must remember that a Judge will make his/her decision based solely on the facts and supporting evidence presented at trial. Broadly speaking, before attending at trial, self-represented litigants must know the legal test they need to meet at trial to win the case. This will ensure that the self-represented litigant will organize the facts and supporting evidence in the same fashion. One way to organize the evidence at trial is by preparing a table of facts and evidence where each fact that needs to be proven is listed along with the evidence (oral, documentary etc.) that would prove that fact.

Self-represented litigants must check the applicable provincial legislation to ensure that their claim is commenced in the appropriate court.

Sometimes a party may introduce evidence at trial that was not shared with the other side before-hand. When faced with a surprising evidence at the commencement of a trial (or during a trial), self-represented litigants often don’t know how to respond. In this regard, it is important to note that our court systems do not allow “trials by ambush”. This means that each side is entitled to know the full extent of the other side’s case well before the commencement of trial. When faced with a new piece of evidence at trial, a self-presented litigant (or for that matter any party) can object to the inclusion of that evidence especially if the new evidence is harmful to her case, or ask the judge for an adjournment till the party can consider the evidence and prepare an appropriate response.

Leveling the Odds

Going against an opponent who is represented by a top-tier lawyer or paralegal may be daunting to a self-represented litigant. Many self-represented litigants feel that despite the merits of their case, the legal fire-power on the other side puts them at a significant disadvantage. In such a situation, the self-represented litigant must remember that a courtroom is probably the only place where what matters the most to a judge is the strength of a party’s argument and the relevant evidence. A self-represented litigants must, therefore, focus on presenting their own arguments in simple terms to a judge backed by credible evidence. Focusing on what really matters to a judge inevitably levels the odds for the self-represented litigant and provides an opportunity to succeed on the merits of the case.

Self-Represented Parties at the Alberta Appeals Commission for Worker’s Compensation

August 23, 2016 By Lynn Parish

The Alberta Appeals Commission for Worker’s Compensation is a tribunal that hears appeals from decisions made by the Worker’s Compensation Board (WCB). In Alberta the scheme for worker’s compensation is governed by the terms of the Worker’s Compensation Act RSA c. W- 15 and WCB policies that amplify the provisions of the Act. The WCB makes many decisions every day with regard to the management of claims involving injured workers. Anyone who has a direct interest in a claim for compensation can request that any decision relating to the claim made by a WCB claims adjudicator be reviewed internally by the WCB. The decision will be referred for review to the internal Dispute Resolution and Decision Review Body (DRDRB).

The Office of the Appeals Advisor is a free service funded by the Accident Fund, which also funds the WCB. The Office of the Appeals Advisor is however completely independent of the WCB and is available to assist injured workers with their claims.Anyone with a direct interest in the claim can then appeal decisions of the DRDRB to the Appeals Commission. Those with a direct interest in the claim are typically the injured worker or the date of accident employer. The WCB may also appear at Appeals Commission hearings and will usually do so when an appeal includes argument concerning the application and interpretation of legislation and WCB policy.

A rationale often quoted for the existence of tribunals like the Appeals Commission is the provision of a speedier and cheaper procedure, as tribunals avoid the formality of the ordinary courts. Less formality supports the idea, in theory, that parties should be able to represent themselves without hiring representatives, legal or otherwise, to advocate for them.

Figures published in the Appeals Commission Annual Report for 2015 show that for the year 2013-2104, 14% of parties before the Appeals Commission were unrepresented, 43% were represented by the Office of the Appeals Advisor and 43% by other representation. For the year 2014-2015, 8% of parties were unrepresented, 51% were represented by the Office of the Appeals Advisor and 41% by other representation. The numbers therefore demonstrate that the great majority of parties appearing before the Appeals Commission do secure some form of representation, either from the Office of the Appeals Advisor or another representative.

The Office of the Appeals Advisor is a free service funded by the Accident Fund, which also funds the WCB. The Office of the Appeals Advisor is however completely independent of the WCB and is available to assist injured workers with their claims. The Office of the Appeals Advisor is not available for assistance to employers who may wish to contest WCB decisions. Parties at the Appeals Commission can also be represented by lawyers and non-legal agents.

The decision in Yuill raises some questions as to the extent of the obligations of a tribunal towards a self-represented party and what constitutes legal advice as opposed to information. Even though the number of self-represented parties at the Appeals Commission is relatively small, processing the appeals of those who are self-represented can be more labour intensive than dealing with parties who are represented. The most difficult areas in assisting self-represented parties tend to be associated with the procedures of the Appeals Commission. Without representation, parties will rely upon the good offices of the Appeals Commission administrative personnel to guide them through the appeals process. Assistance is provided although the time required to work with an unrepresented party can sometimes be significant. In a very small number of cases, lines have to be drawn with regard to the amount of time provided because the demands become too great. Matters can become problematic for example, when a party does not understand that an appeal on one issue does not automatically involve the entire WCB file being reviewed, or when a party wants to file multiple documents, many of which are not relevant to the issue under appeal.

With regard to the hearing of the appeal, the same procedural issues often have to be explained again to the self-represented party by the hearing chair. However, in my opinion, the Appeals Commission adjudicators are sufficiently experienced and skilled so that the fact that a party is self-represented does not impact the provision of a fair hearing. Adjudicators are familiar with the applicable legislation and policy and will ask appropriate questions and seek relevant information, even if the party does not adequately address the required information for the issue of appeal.

However, some caution is required when adjudicating cases with self-represented parties, as demonstrated in the recent case of Malton v Attia, 2016 ABCA 130. Mr. Malton and his wife sued a lawyer, Mr. Attia for negligence after he represented them in a trial. The Maltons represented themselves at the hearing against Mr. Attia. The trial judge found that Mr. Attia was negligent. Mr. Attia appealed on the basis that the trial was procedurally unfair. The Court of Appeal agreed with Mr. Attia and found that the trial judge had gone beyond assisting the self-represented Maltons by descending into the arena and acting more as their advocate. The Alberta Court of Appeal acknowledged the difficulties in assisting non-represented parties at trial but stated that “… at the same time this must be done in such a way as not to breach either the appearance or reality of judicial neutrality.” It ruled that the trial judge based her conclusions on an alternative scenario of liability and damages that she developed as opposed to the allegations in the pleadings.

Without representation, parties will rely upon the good offices of the Appeals Commission administrative personnel to guide them through the appeals process.The scenario presented in the Malton case is perhaps even more cautionary in tribunal hearings such as those conducted by the Appeals Commission where the hearing may only involve one self-represented party in attendance. Even though the other party (often the employer) does not attend the hearing, the hearing panel must still exercise caution in the assistance provided to the self-represented party. In the absence of an opposing party, it may be easier to unwittingly assist the self-represented party. However, the employer is still a party to the appeal and upon receiving a decision, can request a transcript of the hearing and appeal the decision.

The Appeals Commission provides written decisions following all hearings. It is at this point that Commission administrative and legal staff can again spend time with unrepresented parties in explaining next steps, even though all decisions issued by the Commission include additional instructions regarding further review and appeal options. The obligation to provide information regarding further review and appeal was commented upon by Martin J. in the Court of Queen’s Bench in the case of Yuill v. Worker’s Compensation Appeals Commission 2016 ABQB, 369. The comments raise some interesting questions about the extent to which a tribunal has an obligation to advise self-represented parties of their rights of appeal.

The Appeals Commission provides written decisions following all hearings. It is at this point that Commission administrative and legal staff can again spend time with unrepresented parties in explaining next steps, ..Ms. Yuill wished to seek judicial review of an Appeals Commission decision. Her employer did not participate in the Appeals Commission hearing, but under the terms of the legislation was still a party to the proceedings. Ms. Yuill did not serve her employer with notice of the application for judicial review within six months from the date of the Appeals Commission decision as required by the legislation. Ms. Yuill only served notice on the WCB and the Appeals Commission. In the Court of Queen’s Bench decision, Justice Martin expressed concern that, although the WCB had provided written information to Ms. Yuill about the appeal process, the information did not state that the employer had to be served. The WCB argued that such information would constitute legal advice. Justice Martin disagreed and stated that providing the information about service would be more like providing information that would make the process run smoothly. He was very specific in stating that informing a self-represented litigant of the requirement to serve an employer was reasonable. Justice Martin ruled that the fact that Ms. Yuill had not served the employer with notice of the appeal meant that she could not proceed.

The decision in Yuill raises some questions as to the extent of the obligations of a tribunal towards a self-represented party and what constitutes legal advice as opposed to information. For in-house legal counsel at the WCB and the Appeals Commission, it may be contrary to professional obligations owed to their clients (the WCB and the Appeals Commission) to provide legal information to parties who are seeking to take legal action against their clients. However, administrative staff at the WCB and the Appeals Commission do not have the same restraints and arguably could provide more information about procedural requirements on appeal and other issues. It remains to be seen whether the courts will elaborate in future cases about placing increased obligation on tribunals and administrative agencies to assist self-represented parties.

Less formality supports the idea, in theory, that parties should be able to represent themselves without hiring representatives, legal or otherwise, to advocate for them. As a result of the assistance available to injured workers through the Office of the Appeals Advisor and the assistance available for both injured workers and employers from other agents, there are relatively few self-represented parties appearing at the Appeals Commission. Those that choose to self-represent do require more administrative assistance from the Commission and in a small number of cases the demands can become unrealistic. As the number of self-represented parties increase in all forums it is likely there will be more court decisions addressing appropriate procedures and conduct towards self-represented parties.

Going it alone? Resources for Self-Represented Litigants

June 30, 2015 By Marilyn Doyle

Increasingly, people are finding themselves in court without a lawyer to represent them. They are known as “self-represented litigants” (SRLs for short). The National Self-Represented Litigants Research Study conducted by Dr. Julie Macfarlane revealed that, generally, this is not because individuals have decided that lawyers are unnecessary. In fact, “[b]y far the most consistently cited reason for self-representation was the inability to afford to retain, or to continue to retain, legal counsel.” The study had much more to say about the nature of SRLs and their experience, issues of access to justice, and recommendations on ways to address the consequences of the growing number of people representing themselves. It is a worthwhile read for anyone interested in this topic. (Also, for another discussion of this report see the LawNow article What Self Represented Litigants (Actually) Want [link this])

The process of going to court is complex and time-consuming and SRLs need a great deal of information and support. The report affirms that although online resources have their limitations, they are certainly an important piece of the puzzle.

General Resources

The National Self-Represented Litigants Project (NSRLP) is building on the above mentioned research study by continuing to advocate for changes in the justice system and by creating resources that address some of the identified needs. Coping With the Courtroom: Essential Information and Tips for SRLs is a primer for preparing both emotionally and technically for court. It is packed with information and practical self-help tips. Recognizing that court is not necessarily the best way to deal with a legal conflict, Settlement Smarts for Self-represented Litigants: How to Use Settlement Processes Knowledgeably and Effectively is another “how to” primer. It aims to enable SRLs to make effective, strategic and empowered use of settlement processes – settlement conferences with a judge, mediation, and negotiations and Offers to Settle. It examines purpose and structure, how to prepare, and consequences (what to do if you get an agreement and what if you do not) for each process. One of the freely available tools for legal research is the database of case law and legislation provided by the Canadian Legal Information Institute (CanLII). The CanLll Primer: Legal Research Principles and CanLII Navigation for Self-Represented Litigants can help SRLs understand how to use it.

Family Court

The above mentioned study reports that “[f]igures provided by the provincial ministries of justice show that the proportion of litigants appearing pro se in provincial family court is consistently at or above 40%, and in some cases far higher.” In Alberta, a section of the Alberta Courts website provides Self-help for Family Law with information about family justice services, court procedures and court forms. In four provinces, recognition of this situation has led to the development of specific websites dedicated to helping individuals navigate the family court system: British Columbia, Saskatchewan, Nova Scotia and New Brunswick (bilingual). These websites include topic-driven legal information, explanations of court procedures and access to court forms.

In Alberta, a section of the Alberta Courts website provides Self-help for Family Law with information about family justice services, court procedures and court forms. Navigate by following prompts on each page or from a topic menu on the left side of the page. Also, the Centre for Public Legal Education Alberta provides an introductory booklet, Representing Yourself in Family Court.

Manitoba Justice provides family law publications including the Family Law Public Information Booklet (2014, 122 p.) which covers all aspects of family law but no court forms. For forms and court procedures visit the Manitoba Courts website.

In Ontario, a place to start is the family law section of the Ministry of the Attorney General. It deals with various family law topics as well as providing extensive resource lists. Included here is a nine-part Guide to Procedures in Family Court. Note that this is a bilingual site.

The Community Legal Information Association of P.E.I. provides a wide range of family law publications including Family Court Procedures and Resolving Conflict out of Court.

Civil Court

Again, from the referenced SRL study: “The same trend is spreading to civil courts, with some lower level civil courts reporting more than 70% of litigants as self represented.”

Pro Bono Law Alberta has tackled this by leading a project to create four videos related to civil claims: two are general – Courtroom Etiquette: What to do in Court and Civil Matters: What to do in Court – and two are for specific matters – Landlord & Tenant: What to do in Court and Foreclosure Matters: What to do in Court. Further, they provide a Civil Claims Resource Bank with cheat sheets, reference material and a Resource Manual.

An instructional video from the Canadian Bar Association Alberta Branch, A Successful Day in Court, demonstrates the basics of procedure in civil court for non-lawyers. It is about 25 minutes in length, and uses common types of courtroom disputes to explain the kinds of evidence you may need for your case as well as how to organize and present that evidence to the judge.

For SRLs elsewhere in Canada, check this list of provincial public legal education organizations. Most offer a variety of support materials about dealing with civil claims.

Small Claims Court: A Venue Made for Self-Represented Litigants

June 30, 2015 By Peter Bowal and Jacqueline Bowal

Introduction

A few years ago, while stopped on a major road in congested Calgary commuter traffic, our vehicle was struck from behind by another vehicle. We were hit with such force that our car was pushed into the car in front of us. The road and visibility were excellent and we all knew the cause of the collision when the clueless driver from behind alighted with cell phone firmly planted in her hand. She offered no other explanation for her inattention.

We exchanged personal information and were on our way. As it turned out, this collision left us with a few minor whiplashes, a $300 mechanics bill and scratches on our car. When we tried a few days later to follow up with the distracted driver who had slammed into us, she feigned complete ignorance and indignation. …there is a consumer, or layperson, form of litigation, generally known as small claims procedure, where technicality, expense and time for the parties is reduced. She pretended not to have the haziest idea what we were talking about. Out of fear or panic, or discernment, she hung up. We knew we would never receive an apology, much less modest compensation.

Obtaining financial compensation from other individuals or companies is always a challenge, even when liability for it is clear. The obstacles to recovering compensation are considerable: including launching, winning and then collecting from a lawsuit. It is an expensive, technical and time-consuming process and (because it is a human process) the outcome is never certain. For these reasons, voluntary, non-litigation alternatives to recovering compensation, such as negotiation, mediation and arbitration, are much touted.

However, litigation provides one major advantage, which is to force the other side to deal with the issue. The other good news about litigation is that there is a consumer, or layperson, form of litigation, generally known as small claims procedure, where technicality, expense and time for the parties is reduced. This article describes that procedure in Alberta. The other provinces and territories have very similar procedures.

Preparation

Occasionally, an agency or department of government may be able to help. A claim and remedy may be pursued by the Human Rights Commission, the department of Occupational Health and Safety, the Employment Standards Branch (if you are owed wages) and Service Alberta, which assists with some consumer problems.

At the minimum, you can:

try a form of alternate dispute resolution (ADR);
attempt to talk about the problem with the other side and try to settle it directly; or
send a demand letter. It sets out the facts, and full basis for the claims for compensation that are being made. Usually a deadline for payment or other satisfactory response is inserted. The defendant is advised the matter may proceed to court which will increase costs. [Editor’s note: to learn more about demand letters see this blog post from CPLEA, plus this follow-up post]

Small Claims Court

If these methods don’t work you can sue for and collect up to $50,000 in Alberta small claims court (technically called “Provincial Court of Alberta, Civil Division”). You can hire a lawyer to help you if you wish but you can also do it on your own. Anyone can support and assist your presentation of your case as your agent. Most parties do not hire lawyers in this court and the judges try to make parties feel comfortable without one.

The few matters you cannot sue for in small claims court include:

land ownership;
wills and estates;
malicious prosecution;
false imprisonment;
defamation; and
governmental disputes.

Generally, you must start the lawsuit within two years from the time the matter (default on debt or accident, etc.) arose. There are a few exceptions to this. The small claims process is very well explained on the Provincial Court’s website. If you are suing for a small amount of money – perhaps something under $1500 – the time and effort will probably not be worth it and it may be better to simply write the claim off. There is far more detail there than we can include in this article. This website is an excellent resource and any party contemplating or engaged in a small claims action should read this information.

You have to name all the correct parties to the lawsuit. For example, tenants recovering damage deposits must correctly identify the landlord and not just the property manager. If you cannot locate the defendant, you will not be able to serve him with the lawsuit papers.

If you are suing for a small amount of money – perhaps something under $1500 – the time and effort will probably not be worth it and it may be better to simply write the claim off. This is especially true if you do not expect the defendant to pay the judgment. Collection on a money judgment can be expensive and frustrating. If you are paying for a lawyer to run your case, the financial risk of “throwing good money after bad money” is even higher. There are also non-economic costs of suing such as adverse publicity, stress and mental anguish, uncertainty, time to prepare and prosecute the case, and destruction of relationships. We think you should not sue unless it is for a relatively large amount of money and you have a good chance of getting paid if successful.

Launching the Lawsuit

For most people, especially the first time you start a lawsuit, it feels intimidating and adversarial. It is not an activity that most people do and many find it stressful and overwhelming. If the stakes are high enough and the matter important enough as described above, you may rest assured that the small claims process will be as accessible, fair and comfortable as you will find anywhere in our whole legal system. Most parties appear for themselves, unrepresented by lawyers, and this is precisely what this court is designed for. The staff in the court clerk’s office and the judges are used to explaining and shepherding the parties and witnesses through the small claims process.

The court website contains all the forms and accompanying instructions. The suing party (plaintiff) can complete the initiating form, the Civil Claim, online. For most people, especially the first time you start a lawsuit, it feels intimidating and adversarial. It is not an activity that most people do and many find it stressful and overwhelming. It is printed out, then taken and filed in the courthouse, where the matter arose, which is generally where the other party (defendant) resides. The required court filing fee ($100 or $200, depending on the amount being sued for) is paid at that time.

A copy of that filed Civil Claim must be delivered to (“served”) on the defendant(s), along with a blank form called a Dispute Note that the defendant can fill in and file in the same courthouse. In the Civil Claim, you must state what is called a “legal cause of action.” That means you cannot just complain or write rambling hostile comments. Rather, you must allege facts that give rise to and support an acknowledged legal claim. For example, a claim may be based on a contractual debt that was not repaid, or allege that the defendant was negligent when driving, which caused you injury by a collision.

The plaintiff can take up to a year to serve the claim on the defendant but the defendant has only a few weeks to file the completed Dispute Note. A Civil Claim should never be ignored because the plaintiff may return to the court and obtain default judgment when the defendant has not responded within the prescribed time, which is 20 or 30 days. Even if the defendant wishes to negotiate with the plaintiff, he should first ensure a Dispute Note is filed on time to prevent this from happening. The defendant may also make his own fresh claims, if they can be proven, by completing, filing with the court clerk and serving on the plaintiff a Counterclaim when the Dispute Note is filed. Research has shown that intervention by skilled neutral third parties can substantially assist the litigants to reach a settlement of their own. Serving these kinds of legal documents on people can be unpleasant and confrontational, so you can hire process servers to do that instead, although that will increase your costs.

After the Dispute Note has been filed, the court clerk will set the time, date and place for mediation, pre-trial conference or trial. The court clerk will notify all parties of this by sending out a Notice to that effect.

Court-Based ADR

It was common in the past that the parties would show up to the small claims trial without ever having even spoken with each other. The commencement of the lawsuit had driven them farther apart. Research has shown that intervention by skilled neutral third parties can substantially assist the litigants to reach a settlement of their own. Often there were assumptions and misunderstandings, hurt feelings, distrust, anger or miscommunication between the parties that could be addressed and reduced through expert informal guiding by a mediator. The parties are treated as equals who can explain and be respectfully heard and understood. Many times the failure to hear and understand the other side is what precipitates and drives the lawsuit.

Instead of mediation, a pre-trial conference may be scheduled. The parties meet informally with a judge, set out their positions and try to reach a settlement. If this is not successful, the matter will be scheduled for trial before a different judge.

The Trial

If negotiations, mediation and pre-trial conferencing do not lead to resolution, a trial is the final option. While it is a stressful event, it is important to remain civil and fair. A common mistake is for parties to descend into argumentation about every point throughout the trial. You can tell your story, with your evidence, when you are on the stand and through your witnesses. Do not try to just reinforce your version of events by repeating your own evidence. You can bring out weaknesses in the other side’s case by questions when he gives his evidence. A common mistake is for parties to descend into argumentation about every point throughout the trial. Then you can put it all together in your final summation to the judge. It helps if all parties know and respect these various distinct stages of the process.

Decision and Its Enforcement

After the parties have finished presenting their evidence and summarizing their cases, the judge makes a decision. Most often this is announced in the courtroom within a few minutes of the summations.

The parties will be sent a Certificate of Judgment. That decision or judgment may be paid upon demand. If it is not paid, you may move to seize the defendant’s property or garnishee money that is owed to him, such as wages. Interestingly, if the judgment is related to a motor vehicle accident, you can contact the provincial motor vehicles department and ask that the driver’s licence of the defendant be suspended.

Appeal

Any party can appeal the small claims decision to the Court of Queen’s Bench within 30 days. You complete and file the prescribed Notice of Appeal form at the office of the small claims court clerk. A transcript of the trial must be ordered and filed. The transcript can be expensive. When the matter comes up for hearing, a Queen’s Bench judge will hear submissions as to why you think the small claims judge was in error, as well as the other side. This is the one and only appeal available. The Queen’s Bench decision is final.

Denouement

So, what did we do about the distracted driver who drove into our car during rush hour? Given the small amount of money and minor nature of the injury involved, and the challenges we expected to encounter in litigation, we decided not to pursue any legal action against her. Life is short. Time is precious. We have to carefully choose the battles we fight and this one was too inconsequential even for the rigours and uncertainties of an accessible, layperson-friendly small claims court. Sometimes it just makes the most sense to accept what happens in life and move on.

What Self–Represented Litigants (Actually) Want

June 30, 2015 By Sarah Burton

What should we do about self-represented litigants (SRLs)? Amid a backdrop of skyrocketing legal fees, decreased public funding, and a resultant wave of self-representation, this question seems to be on every reformer’s mind. Countless reports, working groups, and studies have asked this question, and reached diverse and creative conclusions. However, these papers often share one critical failing: none of them actually ask SRLs what they think.

Enter the Self-Represented Litigants Project (Dr. Julie Macfarlane, “The National Self-Represented Litigants Project: Identifying and Meeting the Needs of Self-Represented Litigants“, May 2013) Dr. Macfarlane’s insightful Report has a premise that is as ground-breaking as it is simple – if we want to know what SRLs want and need, we should ask them. In doing so, the Report shakes off the often unidentified but misguided presumption that a lawyer’s intimate knowledge of the justice system translates into an understanding about an SRL’s experience.

The Report itself is a qualitative study chronicling the experience of over 250 SRLs in Ontario, Alberta and British Columbia. Dr. Macfarlane’s insightful Report has a premise that is as ground breaking as it is simple – if we want to know what SRLs want and need, we should ask them. Through the surveys and interviews conducted, the Report raises many interesting issues beyond the scope of this article. The following paragraphs highlight some of the most thought-provoking requests and suggestions SRLs believe would assist in navigating the justice system.

So, what do SRLs actually want?

Clear and Practical Legal Information

We are failing to provide SRLs with practical, readable and consistent legal information. This complaint was repeatedly raised across all the sources of legal information available to SRLs:

Court forms are unnecessarily complex, use legal jargon and contain unhelpful notations.
Information from court staff and judges is often inconsistent.
Self-help materials are overwhelmingly focused on substantive law at the expense of much more practical nuts-and-bolts concerns. For example, SRLs repeatedly asked for information on how to fill out forms, where to file court documents or find their courtroom, and how to initiate procedures like a court application or mediation.

An Explanation of the Difference Between Legal Information and Legal Advice

Court clerks are permitted to provide legal information, but not advice. While simple on its face, this rule quickly dissolves into an unworkable chaos when an SRL tries to file a document. Is telling someone how to organize their affidavit “legal advice” or “legal information”? What about explaining how to validly serve an evasive defendant, or how to effectively present pleadings?

There is no clear guidance as to whether or not a clerk should answer these questions. Amidst this ambiguity, receiving a meaningful response depends almost entirely on the particular clerk approached, and the persuasive abilities of the SRL. Court clerks (who were also interviewed in the Report) and SRLs agree that there is a desperate need for clarity on this distinction. Failing to do so breeds frustration and uncertainty for everyone.

[Editor’s note: For one related tool, see this tip sheet from CPLEA: Legal Information vs Legal Advice: What is the difference?]

Seminars and Coaching

Courthouses are an arena with a specific form and language. If you don’t speak that language, (and most SRLs do not) you will not get very far. SRLs know this, and they are willing to work to better communicate with the court. Court clerks are permitted to provide legal information, but not advice. While simple on its face, this rule quickly dissolves into an unworkable chaos when an SRL tries to file a document. In recognition of this desire, many SRLs asked for guidance and coaching on what to expect in starting an action and effectively presenting their cases.

This guidance may take several forms. The most interesting suggestions involved courtroom seminars, one-on-one coaching, or even a peer support community. The topics could cover general issues like courtroom etiquette and tempering expectations, but could also tackle issues like how to approach settlement or seek mediation.

Everyone acknowledges that lawsuits are stalled when one side does not know how to present their case. Educating and supporting SRLs can go a long way in increasing courtroom efficiency and decreasing everyone’s frustration.

A Different Approach to Legal Services

SRLs (and increasingly, represented clients too), have grown tired of the traditional solicitor-client relationship and fee structure. For SRLs this dissatisfaction expresses itself through a desire for Limited Scope Retainers and assistance from non-lawyers. SRLs are begging to deal with non-lawyers (paralegals and/or agents) to help provide practical assistance in preparing their cases. Ontario has heard the call and now regulates paralegal dealings with SRLs.

Limited Scope Retainers

For those who aren’t familiar with the term, Limited Scope Retainers are a limited solicitor-client relationship. Clients hire counsel to assist with part, but not all, of a legal action (for example, drafting pleadings or conducting a special chambers application). While law societies have permitted the practice, fears and uncertainty from provincial bars have left the concept largely stagnant.

For their part, SRLs were blown away that lawyers were unwilling to take their money to help with portions of a case. The idea that legal representation is “all or nothing” was not only vexing to SRLs, but practically speaking, it left them with no alternative but self-representation. With increasing clarity, Limited Scope Retainers have the potential to serve a vast unmet legal need.

Non-Lawyer Assistance

SRLs are begging to deal with non-lawyers (paralegals and/or agents) to help provide practical assistance in preparing their cases. Ontario has heard the call and now regulates paralegal dealings with SRLs. As such, Ontario paralegals can help SRLs prepare legal documents and represent clients in certain proceedings. Other provinces, like Alberta, have failed to take this step. This failure drives practical questions to court clerks who, as discussed above, are having a very difficult time discerning the boundaries of their ability to help.

To be Treated with Respect

SRLs were shocked at the way they were treated by justice system insiders. Of course, many legal insiders (judges, lawyers, and court staff) are extremely helpful and patient when dealing with self-represented parties. Equally obvious is the fact that civil or family litigation is not a place to make friends. With that said, many SRLs reported being treated in a way that stretched beyond the bounds of civility and into basic rudeness and disrespect.

When we lawyers get yelled at by a judge, we shake it off because, at the end of the day, this is a job. When an SRL gets yelled at, it is often about a fundamental aspect of their life (especially in a family law context). These people found the courtroom a life-altering and traumatizing experience. While lawsuits are an inherently adversarial process, basic civility goes a long way in demonstrating that the justice system belongs to the public, not legal insiders.

What We Can Do

Some of the suggestions outlined above, like the idea of courtroom seminars, are innovative and relatively uncontroversial. …civil or family litigation is not a place to make friends. With that said, many SRLs reported being treated in a way that stretched beyond the bounds of civility and into basic rudeness and disrespect. Others, like Limited Scope Retainers, tend to create pushback from legal professionals. Whatever one’s view of the recommendations, its premise is unshakable. We cannot hope to address SRL needs without speaking to them. Necessity is increasingly forcing the legal profession to recognize that it cannot stand separate and apart from the public it serves. SRLs are not going anywhere, and ignoring their needs will not make them go away. By engaging in meaningful and respectful dialogue, we can move towards workable solutions.

Helping Yourself: Where Do You Start?

March 1, 2013 By Adriana Bugyiova

Nowadays, many Albertans are representing themselves in court. But where can they (or where do they) get reliable information?

To respond to the growing demands of litigants without lawyers, Alberta Justice brought together in 2005 members of the judiciary, representatives from criminal justice, legal and court services, as well as various advocacy and research groups. By early 2007, the group had identified available services and in April, the first Legal Information Centre (LInC) opened in Edmonton and Red Deer. A branch followed in Grande Prairie and the Calgary branch opened in January 2009. All centres are located in the courthouses and their services include: referring litigants to legal and other resources in the community, providing information about legal advice options, providing information about alternatives to court, providing legal information, explaining court procedures, explaining the steps to take in making legal applications and helping litigants locate and fill out court forms. In order to contact a LInC, litigants fill out a form online or visit the center in person. Furthermore, to accommodate a rising numbers of family law inquiries, Family Law Information Centres (FLIC) were created in Edmonton, Calgary, Red Deer, Lethbridge, Grande Prairie, and Medicine Hat.

For those who are trying to get information online, undoubtedly the best place to start would be the LawCentralAlberta website. It provides access to a wide range of information to help people make informed decisions about going to court and represent themselves or about seeking a lawyer’s assistance. To start with, the site gives access to laws of Alberta, Canada and to resources on Canadian legal structure. Next, one can select resources which are based on specific interests or developed for specific a group of people (such as seniors, people with disabilities, refugees). And of course, the ‘Preparing for Court’ section contains vital information that will help with the decision to:

go to court;
use an alternative process;
self-represent; or
retain a lawyer.

Its resources are free and cover issues like renting, writing a will, reverse mortgages, debt, psychological abuse, grandparents’ rights, child support, etc. It also provides contact information for courts, government services, agencies and organizations, and police services. The ‘Videos and Games’ section has an interesting selection of resources about the law and the legal system. Also worth mentioning is the website’s French-language equivalent, the LawCentralFrançais.

Another very helpful source to consult is the Alberta Courts website, in particular, the “How do I …” section, which answers questions about small claims, rights of tenants, being a witness, emergency protection orders and mediation, among many others. For families who are involved in parenting disputes and are living separate and apart, Alberta Courts’ Family Justice Services – Court Counsellors offers a wide range of free services including: information on options and services for resolving family issues; referrals to services and programs including mediation; information on the effects of separation and divorce on children; help to negotiate agreements; assistance with court applications; arranging court dates and presenting a case in Provincial Court.

Student Legal Services in Edmonton is a student-managed, non-profit society dedicated to helping low-income individuals understand their legal issues and solve their legal problems. Its resources cover topics in criminal law, like “How do I run my own trial” or “Speak to sentence”, but also answer questions about impaired driving, domestic abuse or trespass. Civil (human rights, immigration law, wills, etc.) and family law matters (common questions about divorce, marriage, matrimonial property, etc.) are also covered.

And last, Supreme Court of Canada also has online resources available for unrepresented litigants. Besides the very useful Q & A section, the site gives access to sample books on applications for leave to appeal, reply and motion. Also, it provides forms and guidelines on how to prepare documents, and has a checklist for documents to be submitted. One interesting feature on this portal is the ‘Glossary of terms’, which provides definitions for the most-used legal terms.

Besides these online resources, LInC and FLIC, there are many agencies and organizations (like Centre for Public Legal Education, Legal Aid Alberta, Edmonton Community Legal Centre, Pro Bono Law Alberta, and Volunteer Lawyers Service, just to name a few) that provide support to anyone in need of help with legal matters.