Self-represented litigants receive begrudging break
Ruling finds non-lawyers deserve fairness even if they’re difficult, Ian Mulgrew writes.
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.