Disproportionate Outcomes for Self-Representing Litigants Raise Access to Justice Concerns

Written by Natasha Brown

The number of self-representing litigants (SRLs) in Canada is rising.[1] Although self-help or “low bono” opportunities exist for SRL’s to be assisted through the court process, SRLs naturally encounter much more difficulty navigating the court system. According to a recent American study, which was done in the context of family cases, SRLs face disproportionately negative outcomes in terms of both moving through the courts and succeeding in their litigation goals.[2] Similar Canadian studies seem to support the application of this finding in Canada.[3]

According to the American study, litigants who had representation were anywhere from 63.9% to 87.4% more likely to achieve a divorce within thirty-six months than those who were self-represented.[4] This is not a surprising difference. Although a divorce seems like a simple procedure, issues quickly become layered and complicated due to sub-issues of child support, spousal support, custody, division of property, domestic violence, etc. Procedurally, despite the existence of self-help resources, navigation of the court rules is complicated. Many SRLs are either literacy limited or speak a language other than English or French as their first language, adding an additional hurdle to understanding these rules.[5] As an additional note, according a 2020 study from the National Self-Represented Litigants Project, about seventy percent of SRLs in Canada have attained either a university degree or college diploma.[6] This seems to indicate many of these outcomes seem to be occurring despite litigants being relatively well-educated, which helpfully illustrates the value in legal representation.

There is no reason to think Manitoba is an exception to these findings. Private bar lawyers are frequently too expensive for litigants and often only the most impoverished qualify for legal aid. Without any changes, SRL’s will continue to exist within the court system and most studies indicate they are rising.[7] Without making the courts more accessible, diverting more people to non-court resolutions, or providing cheap legal representation, SRLs will experience disproportionately negative outcomes in the court. From a view of accessing justice on a substantive level, this should be troubling to see such significant outcome disparities wherein, most of the time, the only reason a person is an SRL is due to the inability to afford representation.[8] When SRLs continue to face disproportionate outcomes in court, it further exacerbates the perception that justice is correlated to income in Canada, which promotes a distrust in the justice system.[9]

SRLs put additional strain on the court by taking more time and resources than the issue might have required had they been represented. They also put the judge in an awkward position of ensuring they can adequately represent themselves while still being objective on the case. Since Pintea v. Johns, 2017 SCC 23, where the Supreme Court endorsed the Canadian Judicial Counsel’s “Statement of Principles on Self-represented Litigants and Accused Persons”, this is not something that is done out of mere courtesy but is a requirement on a presiding judge to ensure procedural fairness.[10] Since so much time is spent ensuring procedural fairness, SRL cases frequently take longer than they need to.[11]

In Manitoba, helping SRLs has been one of the goals of legislation such as the Family Law Modernization Act, which does this by diverting a significant amount of family cases away from the courts. Family law is most commonly where litigants will self-represent and according to the Manitoba government, progress has been made in this area.[12] Upcoming changes to the Legal Profession Act to allow flexibility for representation from non-lawyer “limited practitioners” might also fill another gap in the process.[13] These are helpful starting points, but there is no quick resolution to the situation surrounding SRLs[NB1] .

[1] Julius Melnitzer, “What to do about sharp rise in self-represented litigants” (9 October 2020), online: The Lawyers Daily <https://www.thelawyersdaily.ca/articles/21486/what-to-do-about-sharp-rise-in-self-represented-litigants> [https://perma.cc/P76K-UHJC]; Jennifer Lynch & Margot Mary Davis, “What can be done about upward trend of self-represented litigants” (18 May 2021), online: The Lawyers Daily <https://www.thelawyersdaily.ca/articles/26793/what-can-be-done-about-upward-trend-of-self-represented-litigants> [https://perma.cc/E2V9-L5YC].

[2] Ellen Degnan et al, “Trapped in Marriage” (October 23, 2018), online (pdf): SSRN <https://ssrn.com/abstract=3277900> [https://perma.cc/97XK-FRST].

[3] Brandon Fragomeni, Kaila Scarrow, and Julie Macfarlane, “Tracking the Trends of the Self-Represented Litigant Phenomenon: Data from the National Self-Represented Litigants Project, 2018/2019” (January 2020) online: National Self-Represented Litigants Project <https://representingyourselfcanada.com/wp-content/uploads/2020/01/Intake-Report-2019-Final.pdf> [https://perma.cc/2QV2-3DLY]; “Finally, Canadian Data on Case Outcomes: SRL vs. Represented Parties” (18 April 2016), online: National Self-Represented Litigants Project < https://representingyourselfcanada.com/finally-canadian-data-on-case-outcomes-srl-vs-represented-parties/#> [https://perma.cc/6J3T-8EGZ].

[4] Degnan et al, supra note 2 at 6-7.

[5] Canadian Judicial Council, “Statement of Principles on Self-represented Litigants and Accused Persons” (September 2006) <https://cjc-ccm.ca/sites/default/files/documents/2020/Final-Statement-of-Principles-SRL.pdf> [https://perma.cc/9SUP-3LVT] at 3.

[6] Fragomeni, Scarrow, and Macfarlane, supra note 3 at 6.

[7] Statistics Canada, Profile of family law cases in Canada, 2019/2020, by Lyndsay Ciavaglia Burns, Catalogue no. 85-002-X (Ottawa: Statistics Canada, 28 June 2021) <https://www150.statcan.gc.ca/n1/en/pub/85-002-x/2021001/article/00011-eng.pdf?st=W1YbmVJd> [https://perma.cc/XG8F-7667] at 3, 14.

[8] Fragomeni, Scarrow, and Macfarlane, supra note 3 at 23-4.

[9] Jennifer Lynch & Margot Mary Davis, “What can be done about upward trend of self-represented litigants” (18 May 2021), online: The Lawyers Daily <https://www.thelawyersdaily.ca/articles/26793/what-can-be-done-about-upward-trend-of-self-represented-litigants> [https://perma.cc/E2V9-L5YC].

[10] Pintea v. Johns, 2017 SCC 23 at para 4.

[11] Lynch & Davis, supra note 6.

[12] Manitoba, Family Law Modernization Action Plan, (Report), (July 2020) <https://www.gov.mb.ca/familylaw/documents/flm_action_plan_eng.pdf> [https://perma.cc/L6CU-9YK5] at 5.

[13] Bill 24, The Legal Profession Amendment Act, 3rd Sess, 42nd Leg, Manitoba, 2021 (assented to 12 May 2021), SM 2002, c 44.

 [NB1]I decided to delete these after all since not all organizations can be listed and I didn’t want it to appear that we were favoring some over others

The views and opinions expressed in the blogs are the views of their authors, and do not represent the views of the Faculty of Law, or the University of Manitoba. Academic Members of the University of Manitoba are entitled to academic freedom in the context of a respectful working and learning environment.