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Self-rep study highlights balance between efficiency, fairness

A new study that suggests those who go to court without a lawyer can be handicapped by the process highlights a different aspect to an ongoing problem, says Toronto family lawyer Erin Chaiton-Murray.

“I have dealt with self-represented litigants on a number of files and it can often be a frustrating experience,” says Chaiton-Murray, Senior Associate with Fogelman Law. “You’re dealing with someone who is understandably less legally sophisticated.”

People heading into family court without a lawyer often struggle to understand the rules, filing requirements, evidence, aspects of the case and the overall process, she says.

“When one party is represented and the other isn’t, there can be an increased cost to the represented party because their lawyer may have to spend more time dealing with the unrepresented party than they would dealing directly with another lawyer,” says Chaiton-Murray.

But many self-represented litigants aren’t doing it by choice — they simply can’t afford a lawyer, she points out.

Now a new study released by the National Self-represented Litigants project, The Use of Summary Judgment Procedures Against Self-Represented Litigants, by University of Windsor law professor Julie Macfarlane along with Katrina Trask and Erin Chesney, suggests that these litigants may be being taken advantage of.

The study raises concerns about whether those unfamiliar with the process are treated fairly, with an overwhelming number of those without lawyers on the losing end of summary judgment procedure decisions examined in 2014 and compared to 2004.

Chaiton-Murray points out there has been increased attention on summary judgment procedures recently following the 2014 Supreme Court of Canada landmark decision in Hryniak v. Mauldin. There were recent changes to the Family Law Rules regarding summary judgment procedures which aim to make the overall process more efficient in certain cases, she says.

The goal is that in certain situations, parties may be able to reach a quicker resolution via the summary judgment process and therefore avoid trial and theoretically increase access to justice.

Chaiton-Murray says the study raises concerns that those with lawyers may be using the process as a tool against those who are without, where the self-represented litigant shows up in court, is not sure what they have to do and, before they know it, they’ve lost on a summary judgment motion and they have no clue what has happened.

The summary judgment process is considered an efficient one, especially in dealing with vexatious and problematic litigants. But the study shows another side of that efficiency, which sees the process closed off for some and not allowing them full access to justice, she says.

“I think that it highlights the tough balance,” says Chaiton-Murray. 

And it suggests there is a need to ensure the new rules and the summary judgment process are used appropriately and more sensitively.

“I appreciate the importance of the points raised by this study and I see the other side, that we should all be aware of maintaining an appropriate balance in using this process,” Chaiton-Murray concludes.

 

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