More Canadians are acting as their own lawyer because they don't have a choice
It is a trend most Canadian judges and lawyers do not like: a growing number of Canadians are representing themselves in court. Some hire a lawyer then find the legal fees are unaffordable. Others opt to argue their own case from the beginning.
This is happening not just in small claims courts, where self-representation is the norm, but in higher courts, where legal procedures and protocols are challenging for a lay person.
The National Self-Represented Litigants Project (NSRLP) offers help. It is an innovative program at the University of Windsor and the brainchild of Julie Macfarlane. She is a Distinguished Professor in the Faculty of Law and has been spearheading this support network for almost five years.
The reality, she says, is that people don't have a choice. Canadians are representing themselves in greater numbers because they cannot afford to pay high legal fees.
"They are everybody, they are you and they are me," she says. "I don't think that either of us would probably be able to go on paying at the rate that it would require to pay a lawyer, at $500-plus an hour for a piece of protracted litigation."
At least half the people in family courts across the country arrive without lawyers. In Toronto, the figure is closer to 80 per cent. Appeals courts are reporting around 30 per cent self-represented litigants, and in civil courts the figure is between 30 and 40 per cent.
Legal aid only helps the very, very poorest people. And in Ontario, the eligibility level is actually set below the level of welfare. - Julie Macfarlane
"These are people, quite often, with a high level of education. They're intelligent. They're committed to doing it and figuring it out, so we do see some fairly extraordinary victories." At the same time, Macfarlane says, "they are often subject to some of the litigation tactics that lawyers are much more familiar with." Often these tactics cause self-represented litigants to lose their cases.
"What is really challenging for people representing themselves isn't the stuff we teach people at law school, the substantive law," Macfarlane adds. "It's the procedure." Judges have discretion in how rigidly procedures are applied and, most often, this is where self-represented litigants get tripped up.
This is an area where the NSRLP is helping Canadians. They cannot offer legal advice or act as counsel, but their coaches can help them through the process by guiding people through court procedures and being "someone who's in their corner." They also keep a national inventory of lawyers who charge affordable fees, and produce resources to help Canadians navigate the court system, such as how to access written court transcripts.
Macfarlane acknowledges some judges are doing an outstanding job in helping people who represent themselves in court, by taking the time to explain procedure and making sure someone isn't disadvantaged, "but it's not something that is consistent across the country," Macfarlane says. The Supreme Court of Canada acknowledged this in a recent ruling, in which it said courts may not treat a self-represented litigant in the same way in which they treat a lawyer.
"Judges need to come to the bench now with a different sensibility about what their job is," Macfarlane says. "We really need to take seriously how we re-equip the judiciary."
The NSRLP is encouraging the "unbundling" of legal services, where instead of working on a retainer and controlling an entire file, lawyers would contract to take on only particular tasks, such as legal coaching, reviewing an application form for divorce or preparing for a case management conference.
Judges need to come to the bench now with a different sensibility about what their job is.- Julie Macfarlane
Macfarlane says she is surprised by the number of people across Canada who believe our system of legal aid is there to help them if they can't afford a lawyer.
"In actual fact, legal aid only helps the very, very poorest people. And in Ontario, the eligibility level is actually set below the level of welfare," she says. "So it is extremely difficult to get legal aid."
In some legal circles, there is a continued resistance to the trend of self-representation, which Macfarlane says is unfortunate: "This genie is not going back in the bottle."
Click 'listen' above to hear the full interview.