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Civil Law Handbook For Self-Represented Litigants: Step in right direction? | Jennifer Leitch

Thursday, May 27, 2021 @ 3:06 PM | By Jennifer Leitch


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Jennifer Leitch %>
Jennifer Leitch
The Canadian Judicial Council recently released a comprehensive handbook for litigants representing themselves in civil law matters. While it offers sound advice, it runs the continued risk of putting both the problems and its solution on the already weighed-down shoulders of such litigants. In short, it is not the self-represented litigants that need to change, but the system in which they are compelled to operate.

In plain language, the handbook clearly breaks down the civil litigation process while providing direction and examples for individuals representing themselves in the civil justice system. It is unquestionably a pragmatic and helpful resource as well as being one that is long overdue.

We know that one of the most significant challenges facing self-represented litigants is access to reliable, digestible and accurate information about civil litigation. Self-represented litigants typically access a patchwork of information sources (accurate and otherwise) from which they must cobble together their representation. As such, a comprehensive guide that encapsulates information, checklists and guidance in one source is an important resource for self-represented litigants.

However, this is also a resource that should be on hand for the judges hearing cases involving self-represented litigants — put it next to the Rules of Civil Procedure as an instruction guide for litigation involving self-represented litigants. If self-represented litigants are to make use of this handbook (and it is hoped that they can and will), then it is also important that judges understand the context in which self-represented litigants are conducting the litigation process.

Let us assume that the entirety of their “legal education” is articulated in the handbook. In this regard, the handbook can serve as a helpful reminder to judges regarding the level of the self-represented litigants’ knowledge and understanding of law and its processes; this is a level that remains far below that of the law school-trained lawyers also appearing before them.

And an understanding that might have impacted cases such as Girao v. Cunningham 2020 ONCA 260 where a significant discrepancy between the self-represented plaintiff’s familiarity with the legal process and that of the defendant’s experienced legal counsel resulted in a miscarriage of justice that was only rectified at the Court of Appeal.

In her recent address to the national Action Committee on Access to Justice in Civil and Family Matters on May 12, former chief justice Beverley McLachlin suggested that, post-pandemic, there are likely to be (and presumably should be) changes in approaches to access to justice.

She suggested that there needs to be a people-centred approach to justice that emphasizes the construction of a justice system that ordinary people can access as well as a broadening of the understanding of the nature of justice. Both of these considerations must include a continued and concentrated focus on the abilities and resources of self-represented litigants.

In this sense, the handbook provides judges with an understanding of what self-represented litigants are likely to understand about the civil justice legal process and how they are likely to undertake their own representation.

If we are to take seriously former chief justice McLachlin’s comments, this understanding should, in turn, encourage the administration of processes that takes account of the self-represented litigants’ level of knowledge and experience.

By contrast, there cannot be a people-centred approach to access that provides self-represented litigants with a handbook of useful information if it assumes that they will act as and be treated like mini-lawyers. The fact that the ability of law graduates to engage in legal practice is limited without a year of apprenticeship reinforces the concerns associated with such an assumption.

Reading a handbook is not the same as three years of law school, a year of articling and the likely direction of mentors in the undertaking of practice-appropriate tasks.

The point is that taking seriously the engagement of self-represented litigants in the civil justice system does not simply mean striving to bring self-represented litigants up to the standard of lawyers and then assuming that the system can carry on as it has done for hundreds of years.

As former chief justice McLachlin further notes, in the access to justice context, there is no room for sacred cows — the 19th and 20th century systems of civil justice might just need to make way for a 21st century justice system. Such systemic reform would require a critical evaluation of the means by which we continue to deliver justice and more than likely result in the fashioning of new paths to justice.

So while there is no question that the handbook is an important resource for self-represented litigants currently attempting to access the civil justice system, it remains problematic that self-represented individuals are simply being taught (in an abbreviated and necessarily second-best way) to engage with a justice system that has not changed in hundreds of years. Essentially they are being asked to fit within a system that did not contemplate their participation when it was built and remains inaccessible to all except those who study and practise law.

Perhaps it is time to rethink the organization of the system and, as former chief justice McLachlin also suggested, bring justice to the people. If the pandemic has taught anything about the delivery of services, it might be that there is a great need to bring essential services to communities and to tailor appropriate responses to specific communities’ needs. Both of these observations might be useful for the purposes of rethinking access to justice. The latter being particularly significant if we engage individuals in a discussion about what they need and want from a justice system.

In the broadest context of access to justice, this requires a redesign of legal processes that engage directly with those seeking justice and stops assuming that, with the right information, the vast majority of self-represented litigants will be able to fairly and equally access a system that was never designed with their participation in mind.

A people-centred approach to access might begin to think about the design of courts and legal processes that expect and encourage self-represented litigants. And an approach to access that brings justice to the people rather than one that requires people to struggle to gain access to justice. At its core, this involves the need to situate the discussion and development of access to justice both practically and theoretically within the communities that to date have been denied access.

Jennifer Leitch is a researcher and law teacher, primarily in the area of legal ethics and professionalism, access to justice and dispute processes. Jennifer has taught at Osgoode Hall Law School and the University of Toronto Faculty of Law. She is also an instructor in the ethics, society and law program at Trinity College, University of Toronto and a senior research fellow with the Canadian Forum on Civil Justice. Contact her at leitchbrain@gmail.com.

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