Recognizing the plight of self-represented litigants

The Pro Bono Cause

A significant and troubling issue in Canada is how the courts are dealing with cases involving self-represented litigants.  These litigants are often disadvantaged by personal circumstance – poverty, lack of education or language skills, and mental illness.  While self-represented litigants can tax an already stressed court system, they are entitled to be treated fairly and to have their day in court.  Too often, however, self-represented litigants are unable to navigate the court system and fail to have their issues properly heard by the court.

The Osler Pro Bono Connection

Osler partner Colin Feasby and associates Sean Sutherland and Adam LaRoche represented an individual at the Supreme Court of Canada who had previously represented himself before the Court of Queen’s Bench and the Court of Appeal.  As a result of his lack of compliance with some of the directions of the Court of Queen’s Bench, his action was struck and costs of approximately $80,000 were awarded against him.  The dissenting judgment in the Court of Appeal noted that the individual was self-represented, his claim was likely meritorious, he was disabled, and the costs award was unfair.  We applied to the Supreme Court of Canada for leave to appeal on the basis that the Court of Appeal made errors of law and on the basis that the Supreme Court needs to provide guidance to lower courts on how to effectively deal with unrepresented litigants.

Justice  Karaktsanis, speaking for the whole Court, held that the appeal (which closed on April 27, 2017) was allowed and the contempt order overturned.

In another matter, Jennie Han and Brynne Harding represented the National Self-Represented Litigants Project (NSRLP) on an application for leave to intervene in the appeal in Jonsson v. Lymer. Colin Feasby was the responsible partner on the file. The Lymer appeal was the first opportunity for the Alberta Court of Appeal to consider the new, court-fashioned “vexatious litigant” process used in the Alberta courts, which results in a lifetime restriction on court access for litigants. The NSRLP’s mandate is to understand and address the challenges that self-represented litigants face in the Canadian justice system, as well as the challenges that the self-represented litigant phenomenon poses to the system itself. The Alberta Court of Appeal allowed the application, holding that the decision on the appeal could have a significant effect on our client’s achievement of its mandate and that our client can bring an important and distinct perspective to some of the issues in the appeal. Colin Feasby and Brynne Harding discussed this landmark case for self-representatives and what it means for Alberta and the rest of Canada with Julie Macfarlane, a law professor at the University of Windsor and the Director of the National Self-Represented Litigants Project, in a podcast called “Vexatious in Alberta: A Victory for Self-Reps,” which aired on May 12, 2020.