The severe cost of filing mistakes, even for self-represented litigants
In some areas of law, there is a growing trend toward self-represented litigants, especially in civil and family matters. This has grown concurrently with the plethora of so-called self-help publications and online discussion groups who provide advice. It is especially initially attractive especially in remote rural areas. With such an increase comes the corresponding need for these individuals to understand the particular rules and procedures of the court system to ensure there is a level of efficiency, fairness, and affordability when it comes to prosecuting or defending a civil or family case. Over the past 15 years, I have met with numerous rural individuals and small businesses to further their interests and have seen a variety of situations that suggest the expected cost savings of self-representation were not realized.
This is partly as a result of the current state of the law in relation to self-representation. In the recent decision of the Alberta Court of Appeal, Bloomer v. Workers Compensation Board (https://www.canlii. org/en/ab/abca/doc/2020/2020abca334/2020ab ca334.html?autocompleteStr=%202020%20ABCA%20 334&autocompletePos=1), 2020 ABCA 334, the highest court in Alberta again confirmed judges have no authority to correct the procedural missteps of selfrepresented litigants. This reinforces the expectation that self-represented litigants must either familiarize themselves with all relevant legal practices and procedures pertaining to their individual case or seek professional legal advice from a lawyer knowledgeable in the applicable area of law.
Everyone, including the courts, have acknowledged the disadvantages of self-representation, just as most of us acknowledge our disadvantage if we were to attempt a major repair of our vehicles or to try to perform surgery on ourselves. The courts have confirmed in Bloomer, and other cases, that the same legislative regime and set of procedural rules apply regardless of whether someone chooses to represent themselves or seek legal assistance. There is not a separate rule book or playing field for self-represented litigants any more than there should be multiple sets of rules in other areas of life in Alberta.
Occasionally, courts have shown some flexibility to self-represented litigants in the manner they are given and receive information, and other subtle leniencies not always fully appreciated. However, the courts across Canada have also made it abundantly clear there are limits to the degree of flexibility and leniency. In certain situations, there is simply no way to redo or undo a mistake, such as in court document filings. There are literally hundreds of ways careless self-representation results in valuable court time being wasted, time that could have been used for other cases, and self-represented litigants and others can lose more than they would have spent consulting or hiring a lawyer. Below are some examples:
Hypothetical #1: An individual was seriously injured in a motor vehicle accident, and it will take months, if not years, to determine whether they will be able to return to regular employment and prior activities. After two years, the individual realizes that injuries will not resolve and continue to significantly impact employment and activities. A self-represented claim is made but the insurance company advises it is too late, as a claim was not filed appropriately with the court to preserve the claim. The court agrees with the insurance company and the entire case is dismissed.
Hypothetical #2: An individual lives in a remote Alberta community and is convinced by a spouse to independently file for a divorce on their own and deal with the support and property issues later. A few years after the divorce is finalized the individual is surprised to learn how much piecemeal legal work has prejudiced them so that certain legal protections and arguments have now been lost due to the passage of time. Past contributions to the relationship are now severely discounted as no appropriate property action filing took place when required and some property was not in the individual’s name.
Hypothetical #3: An individual was owed significant funds with only continuous verbal (not written) acknowledgement of the debt. About three years after the funds were last promised, the individual claimed independently against the debtor individually, even though there is a company also involved. Later, the Court dismisses the entire claim as a result of key filing deficiencies.
Hypothetical #4: An individual was hit by an impaired or distracted driver, damaging the individual’s vehicle and causing serious injury. A civil claim for the property damage is filed independently. However, the individual plans to consult a lawyer later about the personal injury claim once the injuries stabilize. A judgment is obtained on the vehicle and the individual is surprised to learn that the ability to claim for serious injuries has now been eliminated pursuant to some Alberta case law decision.
What does all this mean? Access to justice has become an important issue of focus in the prosecution and defence of many areas of civil and family matters. It is still important to rely on the experts and legal professionals to help navigate and guide individuals through the sometimes complex process. 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 errors. Initial cost benefit analyses, payment plans, legal aid, contingency agreements, and certain flat-rate payment methods are being developed in innovative law firms to make quality legal services more affordable. My best advice is to explore these options early with one or more lawyers prior to considering becoming self-represented.
Travis Bissett is a partner and owner at Stringam LLP and has served the Lethbridge area for the past 15 years. He supports a number of practice areas including the civil prosecution of serious personal injuries and other civil disputes, providing transactional advice and support in real estate and agricultural or corporatecommercial matters, and maintains a professional wills and estate practice. Travis has appeared at all levels of court in Alberta but also maintains a level of alternative dispute resolution strategies as needed. He actively volunteers in the Lethbridge area in a variety of organizations. Travis loves the outdoors and helping his family and friends reach their goals.
Disclaimer: 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.