It's no secret self-represented litigants are increasingly common in our justice system. Even administrative tribunals, which have more flexibility in designing their procedures, are struggling to give them a fair hearing while ensuring that the procedural fairness and rules of evidence are observed.
"We look at them as an invasive species – the Zebra mussel of the legal profession. We didn't use to have them, we don't want them," said Michael Gottheil, Chief of the Commission and Tribunals, Alberta Human Rights Commission on a panel at the CBA Administrative Law, Labour and Employment Law Conference in November 2019.
The full extent of self-represented litigants in courts and tribunals can be hard to quantify across the country, but the phenomenon appears to be worsening. For tribunals, recent estimates are that at least one-in-three matters have a self-represented litigant, says Julie MacFarlane, Director of the National Self-Represented Litigants Project Professor of Law at the University of Windsor.
Self-represented litigants report that they don't find tribunals any easier to navigate than courts, she adds.
"The experience of people who go without a lawyer to either court or to a tribunal is actually the same degree of misery," says MacFarlane. "We hear the same uniformly miserable stories from people at tribunals."
The NSRLP released its latest data on the self-represented litigants' experience in January, covering 2018 and the first half of 2019. Two-thirds of the 173 respondents said they started their proceeding with representation but ran out of funds to continue paying a lawyer. Meanwhile, 90 per cent of NSRLP respondents said that the other party in the dispute was represented by counsel.
The language and terminology employed by lawyers can sound like a foreign language to self-represented litigants who end up feeling they haven't been heard, said Scott MacKenzie, a co-panellist with Gottheil at the CBA conference. MacKenzie, the chair & CEO of the PEI Regulatory & Appeals Commission, added that the lack of clarity and the buildup of frustration for an SRL can begin long before they even get to the hearing room.
To address the problem, adjudicators must ensure that self-represented litigants can make their case by emphasizing "substantive procedural fairness" over "formal procedural fairness." It's what is known as the use of active procedures, which explain rules of evidence and procedures, and provide a degree of flexibility in evidence or precedent.
Both MacKenzie and Gottheil stressed that tribunal staff need training to assist self-represented litigants. According to MacKenzie, his tribunal in PEI has the appeals adjudicator or general counsel run through the process with a self-represented litigant.
"It is in your own best interests to make sure that the process is fair," he said. "You need to train staff to get it right."
Forms and guides need to be drafted — written at a grade 8 level — so that non-legal professionals can read and understand them. "There is no reason for us not to have forms that are simple to use, simple to fill out," said MacKenzie.
It's also essential that opposing counsel and tribunal staff be mindful that perceptions are crucial when it comes to demonstrating fairness. "There's nothing worse than if the (opposing) lawyer and tribunal staff are seen having a friendly chat beforehand," said MacKenzie. "That sends a terrible message to a self-represented litigant."
On the whole, MacFarlane recognizes that many administrative tribunals have taken steps to provide more support for self-represented litigants. However, she notes that it is not uniform across the country and very much dependent on local efforts and leadership.
Adapting the hearing format
The format of a hearing should also evolve to accommodate a self-represented litigant. MacKenzie suggested doing away with opening statements "because most of them are pablum. Get right to the heart of the issue."
And while lawyers are almost always a significant advantage in knowledge and familiarity with whatever is at issue, McFarlane says that all too often, they are thrown off stride by a self-represented litigant. "(Counsel) need to go into it with an understanding that people are going to be on edge and going to be fraught, and to try to treat them as bargaining partners."
This requires counsel to adapt to the circumstances. When communicating with the self-represented litigant, it should be in writing to limit the likelihood of a verbal statement that could be misinterpreted or misunderstood, said Gottheil. MacKenzie added that when an unrepresented litigant is struggling to present their case under rules of evidence, opposing counsel should refrain from making continuous objections, lest they add to the frustration.
And tribunals should consider changing the order of presentation, so that the self-represented litigant speaks last, said MacKenzie. It would hardly have an impact on the evidence presented, while giving the self-represented litigant a sense that they have been heard. Said MacKenzie: "What we've found is that self-represented litigants really want to have the last word."