Wednesday, December 16, 2015

by: Prof. Michelle Flaherty

It has become almost trite to say that access to justice in Canada has reached crisis levels.  While the justice system faces many challenges, one of the main pressure points has been the rise in self-representation.  For many administrative tribunals, self-representation is or has now become the norm. 

The National Self-Represented Litigants Project has very helpfully drawn attention to the plight of the self-represented litigant.  It has spawned discussion about many aspects of the justice system, from how legal services are delivered to how courts and tribunals are administered.  My particular interest is in the important role adjudicators can play in making administrative justice more accessible. 

Among other things, this has led me to think about how we use and apply the rules of procedure.  This begs a number of questions, particularly as the number of self-represented parties rise: Should self-represented litigants be held to the same standard as other parties?  Is this even possible?  If not, how can we contend with so-called universal rules that are not actually applied universally? The jurisprudence is replete with seemingly contradictory directions on these questions.  On the one hand, courts say that the same rules of procedure must be applied to all parties, including the self-represented.  But courts have also told us that fairness dictates that rules be applied more flexibly in some circumstances, and particularly where litigants are self-represented.   Attempts at reconciling these two principles have been inconclusive, creating something of a legal fiction.  For now at least, the reality is that although the same rules apply to everyone, they do not always apply in the same way to everyone.

Is there a simpler solution?  Rather than trying to explain a legal fiction, do the needs of self-represented parties call out for change?  And what if we undertook to fundamentally rethink the approach to rules of procedure?

Much work has been done to shift rules away from formalism, and introduce plain language and simpler proceedings.  Although many tribunals recognize that rules of procedure need to be both highly accessible and responsive to the needs of self-represented parties, rules of procedure continue to pose challenges.  For example: 

-     Rules of procedure are not page-turners.  In fact, they often lack any semblance of a story arc or chronology.  Even those of us who are legally trained struggle to read rules of procedure and grasp their implication in a particular case. 
-       They are often very technical and, to understand the rules, you may need to already be familiar with certain legal terms.  It is significant that rules are particularly inaccessible to the approximately 40% of Canadian adults who have low literacy skills.  Literacy issues are even more pronounced amongst low income adults.

-          Rules are not applied universally, even among represented parties.  The administrative decision-maker generally has the ability to derogate from the rules, where appropriate.  For example, although rules of procedure state otherwise, the late filing of documents often has no bearing on a party’s ability to rely on them.  How does this impact a self-represented party’s sense of the fairness of the proceeding?  What about cases where one party is represented by counsel and the other is self-represented?  How can the rules be applied in ways that are both accessible and fair to both parties?

-          Rules generally have to be read in conjunction with other documents, including a constituting statute, other legislation, and practice directions. It can be a challenge to find, read and reconcile all of these instruments

Many aspects of administrative justice are about empowering people to engage in the legal process without representation. In this context, rethinking the approach to rules of procedure is important, not just for self-represented litigants, but for the administrative justice system as a whole.  A clear and accessible procedure means that all parties have a better understanding of what to expect and they can be better prepared.  This may improve chances of pre-hearing settlements, limit the need for adjournments, and result in a more efficient use of adjudicative resources. 

So how can we rethink rules of procedure?

First, what if (as Ruth Sullivan has suggested in  “The Promise of Plain Language Drafting” (2001) 47 McGill LJ 97) we used the self-represented litigant’s perspective as a starting point for explaining the legal process?  But rather than having lawyers put themselves in litigants’ shoes, what if we involve laypeople in the rule-making process?  For example, the Human Rights Tribunal of Ontario (“HRTO”) commissioned a graphic artist to prepare a guide to mediation. I was struck by the level of plain language and the usefulness of the information.  The guide speaks of things I would not have thought to mention, but which I am certain helps parties better understand the mediation process and how to prepare for it.

Second, what if we considered different formats for explaining procedure?  Courts in Maine have developed Youtube videos, in which judges explain the procedures that will be followed.  In some cases, these videos are shown to parties at the outset of the hearing. Many tribunals have prepared litigation guides, which provide important contextual information and set out the rules of procedure in a narrative form.  The existence of these guides suggests that the rules of procedure themselves are not accessible or (at a minimum) that they would be more accessible in a different form.   Guides often indicate that they are not a substitute for the rules of procedure.  Why?  Other than convention, what binds rules to any particular format?  

While rethinking of rules of procedure is an incomplete answer, it seems to be an obvious step towards a more accessible administrative justice system.  Like many other access to justice initiatives, rethinking how we develop and communicate tribunal procedures calls out for innovation and creativity.  It is challenging to explain complex notions in simple terms that still convey the nuances of legal terms and processes.  However, rather than assuming that self-represented litigants can or should deal with existing frameworks, we need to recognize that access to justice calls out for change. 

Designed by Rachel Gold.