Wednesday, May 15, 2013

The Canadian Judicial System: By the lawyers, for the lawyers of the lawyers but not the laypeople!

Dr. Julie Macfarlane

Ian Mulgrew: Access to justice is a fairy tale, self-represented litigants conclude

Tuesday, May 7, 2013
A study of self-represented litigants in British Columbia, Alberta and Ontario showed a lack of representation is creating a crisis of faith in the legal system. Those who went to court without a lawyer reported depleting their savings, haveing difficulty handling their jobs and suffering physical and emotional health problems. (Photograph by:Steve Bosch/Province)

The final report of the National Self-Represented Litigants Project says the country’s justice system isn’t working unless you’re rich enough to afford a lawyer.

Written by University of Windsor law professor Julie Macfarlane, the 147-page document is a litany of despair and a depressing glimpse inside the courthouses of three provinces.

“While some of the most extreme reactions border on the paranoid, many self-represented litigants appraise their experience in a rational and balanced way in coming to the conclusion that the justice system is ‘broken,’” Macfarlane reports.

“Their basic complaint is clear — that instead of a user-friendly, practical means of resolving disputes, the courts offer a false promise of ‘access to justice.’”

She urged sweeping reform and broad cultural change across the legal system.

Funded by the Law Foundations of Ontario, Alberta and British Columbia, Macfarlane and her team interviewed more than 100 court staff and service providers along with 259 self-represented litigants.

The sample of litigants was almost exactly half men and half women; 63 per cent were plaintiffs or petitioners, and 37 per cent were defendants or respondents; roughly 40 per cent were earning more than $50,000 a year and half had a university degree. This isn’t about hurdles faced by the poor, the disadvantaged or the non-computer-literate.

In fact, many of the frustrated litigants said that if trying to get justice was so difficult for them given their education, what was it like for someone without their training or who wasn’t fluent in French or English?

The results of the survey are scalding.

“No more fairy tale about having access to a justice system,” said one litigant.

“My expectations?” said another. “I can’t even remember my expectations any more. My life just fell apart.”

As one put it: “There are all these buildings — the courthouses — that are like false-front buildings, like they have at Universal Studios — they are supposed to help you, but they don’t.”

Some remain angry and distressed about what happened to them — and there are thousands upon thousands left similarly disillusioned.

“This is creating a crisis of faith in the Canadian justice system,” Macfarlane insisted.

Consistently 40 per cent or more of the litigants in family courts are unrepresented, while in some civil courts, 70 per cent are unrepresented.

In British.Columbia, 80 per cent of those in small claims court are unrepresented.

“The numbers are extraordinary,” the report says, adding registry and court staff feel under siege and desperate.

Most people represented themselves because they couldn’t afford legal fees or had already spent $20,000-plus without achieving a resolution and running out of funds.

“A mechanic will tell you how long it will take and about how much it will cost,” said one, “a lawyer won’t do that.”

Only one in 10 thought they were up to the task of representing themselves. Most discovered they weren’t.

Many didn’t have the office services required to pursue an action — printing and photocopying facilities or even computers.

In spite of the promise that online services aid access to justice, the litigants had difficulty filling in the forms, which they found too complex.

Many grew frustrated when failure to fill in the forms properly had serious consequences for the progress of their actions.

Even those with training have problems: A number of court staff said they and some lawyers had difficulty completing the forms or keeping up with the constant changes.

Court guides seem to be written in a foreign tongue and the entire online self-help process left self-represented litigants scratching their heads.

It added insult to injury to be constantly told they “should consult a lawyer.”

The self-represented litigants emphasized the lack of accountability — neither lawyers nor judges were seen to be subject to any meaningful oversight.

Some judges rudely scolded them and treated them with contempt, yet the mechanism for complaining about such treatment was highly protective of the bench.

Some of the litigants broke down in tears simply recounting their humiliating experience.

“The negativity of so many self-represented litigants about judges makes for upsetting reading, but they point to some deep-rooted problems that require our urgent attention,” Macfarlane says.

“Read alongside the poor (previous) experiences of many self-represented litigants with legal counsel, they suggest that public confidence in the justice system is damaged, and diminishing further day by day.”

The study concluded that self-represented litigants deplete their savings, lose their job or have difficulty at work trying to manage their legal cases, endure social isolation from friends and family as the case becomes increasingly complex and overwhelming and suffer a myriad of physical and emotional health problems.

“The scale and frequency of these individually experienced consequences represent a social problem on a scale that requires our recognition and attention,” Macfarlane said. “The costs are as yet unknown.”

Still, it’s not that self-represented litigants don’t want lawyers to help them: They’re saying the way lawyers offer their services doesn’t fit within their budgets.

The report concludes as many other recent studies have: the profession faces difficult choices about ending its monopoly, making room for more paralegals and others; doing piecework or some of the tasks related to a file but not the entire case (the so-called unbundling of legal services); and loosening its traditional professional control over the conduct of a case.

(The report is available at


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