Self-rep­re­sented lit­i­gants re­ceive be­grudg­ing break

Rul­ing finds non-lawyers de­serve fair­ness even if they’re dif­fi­cult, Ian Mul­grew writes.

Edmonton Journal - - FINANCIAL POST - imul­grew@post­media.com twit­ter.com/ian­mul­grew

Self-rep­re­sented lit­i­gants have won a big vic­tory at the Supreme Court of Canada, but it was like pulling teeth.

Treat­ing peo­ple with­out lawyers fairly seems like moth­er­hood-and-ap­ple-pie and the court be­ing asked to do the work of the an­gels, but you’d never have known it.

That’s be­cause so many sel­f­rep­re­sented lit­i­gants are so dif­fi­cult to deal with.

In the end, how­ever, a unan­i­mous high bench en­dorsed the Cana­dian Ju­di­cial Coun­cil’s 2006 state­ment of prin­ci­ples on self-rep­re­sented lit­i­gants that judges “should do what­ever is pos­si­ble to pro­vide a fair and im­par­tial process and pre­vent an un­fair dis­ad­van­tage to sel­f­rep­re­sented per­sons.”

Im­por­tantly, this in­cludes the ad­vice that judges should make re­fer­rals to agen­cies who can pro­vide sup­port — but there’s no money at­tached.

Al­though this case in­volved a clear-cut per­sonal in­jury ac­tion

brought by a Cal­gary man, Valentin Pin­tea, af­ter a 2007 Al­berta car crash, it raised im­por­tant is­sues for tens of thou­sands of self-rep­re­sented lit­i­gants nav­i­gat­ing the coun­try’s of­ten in­scrutable le­gal sys­tem.

Still, the jus­tices all but grit­ted their teeth through­out sub­mis­sions about what caused an Al­berta judge who seemed to show the pa­tience of Job to fi­nally snap.

The fi­nal straw af­ter seven years was whether Pin­tea, a Ro­ma­nian im­mi­grant with English as a sec­ond lan­guage, told the court about chang­ing his ad­dress, caus­ing him to miss two case con­fer­ences.

He was then held in con­tempt, his case struck and he was or­dered to pay costs of al­most $83,000.

The Al­berta Court of Ap­peal in a split de­ci­sion up­held the judge’s fit of piqué.

Iron­i­cally, there was no ar­gu­ment about li­a­bil­ity for the col­li­sion. It was solely about how

much Pin­tea should re­ceive as a set­tle­ment — at least $120,000.

The Na­tional Self-Rep­re­sented Lit­i­gants Project, Pro Bono On­tario and the Ac­cess Pro Bono Society of B.C., which pro­vide free le­gal as­sis­tance, in­ter­vened.

“This is a case about ac­cess to jus­tice — and not just ac­cess to jus­tice for a small select few,” ex­plained lawyer Colin Feasby, who vol­un­teered to rep­re­sent Pin­tea be­fore the high bench, “but for self-rep­re­sented lit­i­gants, who in some courts in this land con­sti­tute a ma­jor­ity of lit­i­gants. This case is ... about how we treat the out­siders, the peo­ple who come to our courts with­out the ed­u­ca­tion or the ex­pe­ri­ence to de­fend their rights as ef­fec­tively as they might.”

He ar­gued the rigid ap­pli­ca­tion of rules and pro­ce­dures by judges needs to change in light of the cur­rent “epi­demic” of those who can­not af­ford le­gal fees or who choose not to hire a lawyer.

“This (de­ci­sion) sends a wel­come sig­nal that these vul­ner­a­ble Cana­di­ans de­serve a clear and con­sis­tent stan­dard of fair treat­ment when they en­ter a court­room in this coun­try,” said Jamie Ma­claren, ex­ec­u­tive di­rec­tor of Ac­cess Pro Bono.

The hear­ing, though, high­lighted the court’s frus­tra­tion with the co­nun­drum self-rep­re­sented lit­i­gants posed.

It was ev­i­dent the mo­ment Feasby cited another Al­berta de­ci­sion, Broda v. Broda (2001), as if it re­flected the as­cen­dant ju­di­cial at­ti­tude: “’If (self-rep­re­sented lit­i­gants) seek a free lunch, they should not com­plain about the size of the help­ings,’” he quoted. “For­give me, for a mo­ment I thought I was read­ing from Dick­ens, Oliver Twist, but this is the Al­berta Court of Ap­peal.”

Through­out, Pin­tea caused de­lays, failed to present his views clearly and caused judges and the de­fen­dants to pull out their hair.

“Fair­ness de­mands the courts do more even if self-rep­re­sented lit­i­gants are dif­fi­cult to deal with,” Feasby in­sisted.

“This case man­age­ment judge was bend­ing over back­wards, it seems to me, to try and be of as­sis­tance to your client,” Jus­tice Michael Mol­daver har­rumphed.

“Pre­sum­ably al­ways avail­able if your client wanted some fur­ther in­for­ma­tion or ad­vice or what­ever, it sounds to me that this case man­age­ment judge was go­ing al­most beyond the call of duty, and you’re stand­ing be­fore us say­ing, ‘Didn’t do enough here. Had to do more’? Speak­ing for my­self, I have some dif­fi­culty with that ...”

“My client be­haved badly. There’s no ques­tion about that. We con­ceded that,” Feasby agreed. “But it’s im­por­tant to rec­og­nize he was a self-rep­re­sented lit­i­gant. He did not have good coun­sel . ... He was put in a des­per­ate sit­u­a­tion.”

Jus­tice Mal­colm Rowe noted he dealt fre­quently with self-rep­re­sented lit­i­gants: “It takes a lot of ef­fort to guide them. It’s not an easy thing.”

Re­gard­less, it took the jus­tices only 30 min­utes to is­sue a rul­ing — Pin­tea should not have been con­victed of civil con­tempt. The award of dam­ages was dis­missed and his claim re­stored.

Oh, and memo to judges — be kin­der to non-lawyers, even the rude ones.

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