'Mind-boggling' legal ordeal for brain-injured Medicine Hat woman takes new twist

A brain-injured Medicine Hat woman is facing another injustice, according to a legal advocate. Judy Gayton was deemed incapable of representing herself in her own medical malpractice lawsuit, but the case has taken some unusual twists and turns.

Judy Gayton was told she didn't need legal help to go to trial but does need legal help to appeal

A legal advocate calls the handling of Judy Gayton's case unfair, saying the court is changing its interpretation of her circumstances in an effort to get her off the docket. (Judy Gayton)

A disabled Medicine Hat woman says the justice system has let her down for a second time.

Judy Gayton has a brain injury. In 2014, she was deemed incapable of representing herself by a neuropsychologist, prompting a judge to order that a lawyer be appointed as her litigation representative.

Under Alberta law, litigation representatives can be appointed for adults who lack capacity as defined under the Adult Guardianship and Trusteeship Act.

Gayton, who's on Assured Income for the Severely Handicapped (AISH), struggled to find — and pay for — legal help, and the case dragged on. 

Alone in court

As her trial was set to begin, the judge removed the requirement for a litigation representative, saying she was free to bring in a so-called "McKenzie friend" — a companion who can provide help such as note-taking and quiet suggestions. 

Advocates speculate the change was part of an effort to get the case to trial more quickly.

Gayton ended up in court on her own in December 2016 and tried to explain to the judge she was unable to represent herself and then sat down. 

After she refused to answer further questions from the court, the judge dismissed her case.

"I'm just devastated. I'm absolutely devastated," said Gayton at the time.

'Expedient' interpretation

Now Gayton wants to appeal.

But in an about-face, the court is refusing to allow it, saying the appeal must be filed by a litigation representative — the very requirement that was lifted before her trial.

"I think its mind-boggling," Gayton said. 

"I cannot be competent to run a 10-day trial in one court, and simultaneously be incompetent to appeal that same trial in another court ... it was a huge contradiction," she added. 

Julie MacFarlane, a law professor in Windsor who runs the National Self-Represented Litigants Project, says this is a "clear injustice" to Gayton.

"It seems that the court is choosing the interpretation of her circumstances that is most expedient to them," MacFarlane said.

"In December, they wanted the trial to happen. She lost. Now she wants to appeal in January, and they tell her that she can't appeal because she is incompetent to file her papers."

Wider problem

MacFarlane said Gayton's case is an indication of a wider problem — that courts don't know how to deal with the growing number of people who can't afford to hire lawyers.

"It illustrates a systemic problem within the justice system that it is going to have to adapt to the reality that more and more people  not just people in Judy Gayton's situation, but people who are competent  are also not going to be able to afford legal counsel to bring their cases forward."

MacFarlane said Gayton's competency designation should not be changed, that it's clearly appropriate for someone with a brain injury, but it needs to be recognized that Gayton needs a legal representative she can afford. 

Malpractice suit

As for the substance of her medical malpractice suit, Gayton alleges she was misdiagnosed following her brain injury.

She claims she became very sick and experienced "severe, incapacitating and irreversible injuries" as a result of treatment provided to her by several doctors.

Her lawsuit sought compensation for those injuries. 

With files from Jennifer Lee