What can be done about upward trend of self-represented litigants

Jennifer Lynch

Margot Mary Davis

Much has been said about the extent of the phenomenon of self-represented litigants. The Law Society of Ontario’s Rules of Professional Conduct contains rules for lawyers interacting with self-represented litigants (SRLs). Chief Justice Beverley McLachlin, in 2007, stated that “Our courtrooms today are filled with litigants who are not represented by counsel, trying to navigate the sometimes complex demands of law and procedure.”

Some statistics show the severity of this issue. From 1998-2003, almost half of litigants in Ontario family courts were unrepresented or self-represented litigants. The rates increase in certain cities; approximately 80 per cent of Toronto litigants were self-represented.

Less has been said about why this phenomenon is so concerning. Below, we will examine why the trend of self-represented litigants is so concerning and propose practical solutions to combating this problem.

Concerns: Mistrust in justice system

Self-represented litigants usually obtain less favourable outcomes. Approximately, 75 per cent of SRLs lost at trial and over 85 per cent of SRLs lose in motions court. One stated reason for the high SRL loss rate in motions court is the significant amount of procedural knowledge that is required. SRLs might lack this knowledge. Particularly worrying, self-represented criminal litigants are less likely to get bail, more likely to be convicted and more likely to receive harsher sentences. It seems like someone’s ability to achieve a desirable outcome is contingent upon one’s paycheque.

Thus, many self-represented litigants feel that the justice system is biased against them. In cases where the opposing side had legal representation, a fair number of SRLs feel that the opposing counsel was trying to “trick” them and opposing counsel was unco-operative with them because they were unrepresented. Additionally, many SRLs feel that law societies, at best, overlook “problematic” behaviour from lawyers and, at worst, protect “problematic” lawyers. One self-represented litigant stated that SRLs were “outsiders” but judges and lawyers were “insiders.”

Due to the higher probability of getting a negative outcome and a perception that the justice system is biased, many SRLs might start to mistrust the Canadian justice system.

Since many litigants self-represent, that is a fair number of untrusting individuals. Trust in institutions, like the justice system, is crucial for a functioning society.

Additionally, mistrust in the justice system might not be limited to the SRLs themselves. Other parties involved in disputes with SRLs might start to mistrust Canada’s justice system. In Dujardin v. Dujardin 2018 ONCA 597, the court stated that “trial judges have special duties to self-represented litigants. If the opposing party has retained counsel, they might view that as unfair. While SRLs are at a significant disadvantage, the opposing litigant might not know that. They would be focused on their significant lawyer fees and the time spent on the trial. Exacerbating this perception, a represented party is more likely to have higher costs when the opposing party is a SRL and cases involving self-represented litigants are generally longer.

Possible solutions

Analyzing a problem is not enough. Below, we have listed some practical solutions.

Exempting some legal services from HST, GST, PST

Various necessities are exempt from sales tax. Provincial and federal governments should strongly consider exempting family law services, and criminal defence services from sales tax. While 12 to 15 per cent might seem like an insignificant amount, if a lawyer is billing at an hourly rate of $500 for a client, 12 to 15 per cent is not insignificant. This would to less revenue for the government in the short term. However, the administration of justice is costly and cases involving SRLs take longer (meaning more money spent). At the end of the day, this policy would save money.

Permitting non-licensees to own shares in professional corporations

Many North American law societies mandate that only licensed lawyers hold shares in a professional corporation. Utah is an exception to this rule. With the goal of improving access to justice, the Utah Supreme Court upheld reforms that allowed non-lawyer ownership and investment in law firms. Such a program could provide an injection of money for a firm which means that lawyers could charge clients lower fees. Some might be worried that non-licensees would have a say in the operations of the law firm. To address this concern, law societies could restrict non-lawyer ownership to non-voting shares.

Conclusion

The widespread phenomena of self-represented litigants is not healthy for a strong civic society. Too many Canadians might begin to feel that justice is contingent upon one’s income. Our solutions are practical ways to address this concern and ensure Canadians are getting the legal representation that they need.

Jennifer Lynch is an accomplished forensic accountant and business owner. Jennifer is a Chartered Professional Accountant, Certified Management Accountant and a Certified Fraud Examiner who has a reputation for expertise, quality service to clients and professionalism. You can reach her on LinkedIn. Margot Mary Davis is a 2018 Ontario call to the bar. She is interested in policy issues surrounding law like combating counterfeit goods and developing sui generis policies for orphan drugs. She is also a published author.

Photo credit / melitas ISTOCKPHOTO.COM

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