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| Amar Gill |
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| Katelyn Bell |
In Canada, there continues to be a growing trend toward self-represented litigants in the justice system. With such an increase comes the corresponding need for these individuals to understand the rules and procedures of the court system to ensure that there is efficiency, fairness and affordability when it comes to access to justice.
In the recent decision of Bloomer v. Workers Compensation Board 2020 ABCA 334, Alberta’s Court of Appeal confirmed that motion judges have no authority to correct the procedural missteps of self-represented litigants, reinforcing the expectation that self-represented litigants familiarize themselves with the relevant legal practices and procedures pertaining to their individual case.
While the courts have acknowledged the disadvantages faced and encountered by self-represented litigants, the case law has nevertheless confirmed that the same statutory regime and set of rules apply regardless of whether litigants choose to get legal representation or not. There simply is not a separate rulebook or playing field for self-represented litigants.
Courts have shown some flexibility at times to self-represented litigants in the judicial process with respect to how they are guided, provided information and even shown some subtle leniency and understanding at times. However, the courts have made it clear that they are limited in the degree of their flexibility and leniency. In certain respects, there simply are no redos, and one of those areas is court filings.
Hypothetical: Let’s say you come home and notice that your vehicle was damaged. It appears to have been rear-ended while it was parked in your driveway, and you have good reason to believe it was the fault of your neighbour. Maybe you even have some useful security camera footage to bolster your claim.
Since the vehicle is owned by your 17-year-old, you decide in an effort to save costs to bring an action in small claims against your neighbour for the cost of the repairs. You draft the claim under your child’s name, file it in the court’s e-filing system and click submit. Minutes later, you realize you used the wrong form, and now you need to correct the form you’ve submitted. What’s the fix, and will it cost you?
Unfortunately the answer is yes it will cost you and the fix is not as straightforward as hoped. Since the claim involves a minor (a person under the age of 18, or, as the court defines it, a person with a disability), the court clerk would be unable to simply accept a Form 23A “Intent to Withdraw'' or “Notice of Discontinuance” due to the operation of Rule 23 of the Rules of Civil Procedure. As a result, a registrar is unable to sign off on this change due to the involvement of a minor.
RULE 23 DISCONTINUANCE AND WITHDRAWAL
Discontinuance by Plaintiff
23.01 (1) A plaintiff may discontinue all or part of an action against any defendant,
(a) before the close of pleadings, by serving on all parties who have been served with the statement of claim a notice of discontinuance (Form 23A) and filing the notice with proof of service;
(b) after the close of pleadings, with leave of the court; or
(c) at any time, by filing the consent of all parties. R.R.O. 1990, Reg. 194, r. 23.01 (1); O. Reg. 427/01, s. 10.
(2) If a party to an action is under disability, the action may be discontinued by or against the party only with leave of a judge obtained on motion under rule 7.07.1. O. Reg. 19/03, s. 6.
What does that mean? It means correcting this mistake will require bringing a motion to a judge to explain what happened with respect to filing the incorrect form. When drafting this motion, the court advises to provide notice to the other side (the defendant), and if possible, to obtain their consent. If the opposing side has already filed an intention to defend, this change will likely involve cost consequences.
There are limits on the court’s ability to relax the rules for self-represented litigants, particularly when it comes to contraventions or issues of non-compliance that affect deadlines, limitation periods and filing mistakes.
Takeaway
When going the route of self-representation, always be careful when filing forms and documents. Familiarize yourself with the rules, procedures and protocols applicable to your situation because mistakes can be costly.
Access to justice has become an important issue of focus in many areas of the law, particularly in family courts. It is important to rely on the help of experts and legal professionals to help navigate and guide you through the process.
This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please contact a lawyer. Each case is unique and different and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.
Amar Gill is an articling student at Devry Smith Frank LLP, and works out of the firm’s Toronto office. He supports a number of practice areas, including the groups in employment law, commercial litigation, collections, personal injury and tax. Katelyn Bell is an associate lawyer at Devry Smith Frank, working primarily out of the firm’s Toronto office. She practises in family law and education law, working closely with separating couples, newly formed couples, children and students of all ages. She has appeared at all levels of court in Ontario but focuses on alternative dispute resolution strategies where possible to resolve matters outside the costly and timely litigation process.
Photo credit Nuthawut Somsuk ISTOCKPHOTO.COM
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