Two appeal decisions spotlight plight of self-represented litigants
Lawyers are all too familiar with the increasing trend of parties representing themselves in court and the problems that this situation presents to their clients, to the self-represented litigants (SRLs) themselves and to the court. Two recent Court of Appeal decisions highlight some of the problems that self-represented litigants face in the court system and how the courts can assist a SRL — without prejudicing the represented litigant — in obtaining not only their day in court but a fair hearing.
Most SLRs represent themselves since they cannot afford a lawyer. However, affording a lawyer is not the only problem some SRLs face: affording copying costs for filing requirements can also be a problem. In Mosquera v. Ottawa (City) 2019 ONCA 760, the Court of Appeal found an easy way around that problem.
Gladys Mosquera brought a motion seeking an extension of time to perfect her appeal. In the same motion, due to her limited financial means, she also sought relief from the requirement on her appeal to file three hard copies of her factum and appeal book and compendium. The Court of Appeal noted that the costs for Mosquera to copy materials, which she estimated to be $250, represented 25 per cent of her monthly income. Therefore, given the above, the court granted her relief from the requirement to file hard copies. Opposing counsel can also assist in limiting the costs of SRLs by agreeing to accept service of documents electronically.
Another problem that SRLs face is their complete lack of experience in cross-examining witnesses and how to present their cases to the court. This is a difficult issue for judges to tackle since they cannot appear to be advocating for the SRL.
In R. v. Morillo 2019 ONCA 714, Lindsey Morillo was charged with speeding. He was convicted at his first trial. He appealed and ultimately a new trial was ordered. At this new trial, an issue arose with Morillo’s cross-examination of the police officer. Ultimately, the justice of the peace found Morillo guilty. Morillo appealed to a judge. In upholding the conviction, the appeal’s judge specifically commented on the fact that Morillo would have been better off if he had a lawyer represent him.
Morillo appealed the appeals judge’s decision to the Court of Appeal. In quashing the conviction, the Court of Appeal specifically noted that the appeals judge appeared to be holding Morillo’s lack of familiarity with how to cross-examine a witness and how to present his defence against him in rendering his decision. The Court of Appeal stated that “… a more helpful approach would have been to inquire, explain, and assist, thereby ensuring a fair process and a reasoned conclusion.”
No doubt dealing with self-represented litigants can be painstaking for lawyers and judges. It is important, however, that judges and lawyers remain patient and not get frustrated. One of the ways to make the process easier for all involved is by allowing SRLs serve and file materials electronically as Mosquera demonstrates. This will help to save them costs and time.
Another way to make the process easier for all involved is for lawyers to explain to the SRL, prior to the actual court hearing, the process involved and the deadlines that have to be met (of course keeping in mind their duty to their own client and that they are not the SRL’s lawyer). This will ensure that no dates are missed that might cause the court hearing to be adjourned to another date and will ensure that the judge hearing the case has all the necessary material before them to ensure that there is a fair hearing.
During the hearing itself, where it appears that the SRL is confused, it is important for lawyers and judges to remain patient and to help clear the SRL’s confusion in simple and non-technical language. In the end, as R. v. Morillo demonstrates, it will save the court a whole lot of time and all parties a whole lot of costs.
This article was originally published by The Lawyer’s Daily, part of LexisNexis Canada Inc.
Should you self-represent? Partner Robert De Toni explains some of the challenges of self-representation, and why it is beneficial to retain legal counsel.
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