This morning, I had the opportunity of watching Civil chambers proceedings at the Court of Queen’s Bench of Saskatchewan, Regina. It was a full courtroom. Three cases however made quite an impression on me. All three cases involved self-represented litigants.
The first case was a foreclosure action involving a bank, a judgment creditor and the borrower, who was self-represented. From what i gleaned, an application for judicial sale had been made by the judgment creditor. Substantial payments had been made by the borrower to catch up on his arrears to the bank and he had about $100,000 equity in the property. It was obvious, as the proceedings progressed, that the borrower did not understand the legal terminology used by the lawyers acting for the bank and the judgment creditor. The judge took his time to explain what the application meant to the borrower and proceeded to confirm from the borrower whether he was inclined to put the property up for sale privately. At the end of the matter, the judge adjourned the application for judicial sale and directed the borrower to take steps to privately list the property.
The other two cases were residential tenancies appeals involving self-represented litigants. One thing was very clear here – the appellants were very clueless. The judge started out by explaining the grounds on which a party can rely upon when appealing a decision of the Office of Residential Tenancies (ORT). Parties can only appeal on a question of law or jurisdiction. The appeal judge cannot rehear the matter or make a determination of facts.
In spite of the explanation provided by the judge, the appellants in both cases struggled with articulating their grounds of appeal. They expressed their dissatisfaction with the way the hearing was conducted by the hearing officer, how they were deprived of the opportunity to present their own case and placed emphasis on the failure of the hearing officer to follow due process. When the judge informed the appellants that no grounds of appeal had been established, it did not go down well with them. One of the appellants walked out of the courtroom in anger even before his case was concluded! He was not a happy man!
Having worked as an intake worker for over two years with Pro Bono Law Saskatchewan, I am quite aware of the access to justice issues in our province. I have had experience dealing with self-represented litigants seeking free legal advice at one of our free legal clinics across the province. But this was the first time I witnessed how onerous it was for a self-represented litigant to navigate the court system.
Both self-represented litigants in the residential appeals before the court today would have been better prepared if they had been received some form of legal advice prior to attending court.
Access to justice issues are live issues in our province. Parties in a legal action who are unable to afford legal services in Saskatchewan have very limited options available to them. If the matter is a criminal or a family (except for property division) law issue, parties may apply to the Legal Aid office closest to them. Legal Aid has an income eligibility criteria which an applicant must satisfy before they can be provided with legal services. When they do qualify, they get a lawyer who can represent them in court. Legal Aid does not handle civil cases or family law issues relating to property.
Where the applicant does not qualify for Legal Aid services, they have two options – apply for a court-appointed counsel (in criminal cases) or represent themselves in court. Where parties decide to represent themselves in court for a civil or family law matter, they can obtain free legal advice from the Pro Bono Law Saskatchewan legal clinics or Community Legal Assistance Services for Saskatoon Inner City (CLASSIC). However, both organisations also have income eligibility guidelines which an applicant must qualify under to be able to use the services offered by these organisations.
Unfortunately, there will be applicants who do not fall within the income eligibility guidelines but cannot afford to pay for legal services. It is this category of people that fall through the cracks of our legal system.
In my mind, it is imperative that a self-represented litigant obtains legal advice, at the minimum, prior to attending court. How else can they adequately represent themselves before the court of law if they do not even understand why they are in court? How can they access the justice system effectively without knowing their rights? How do they even know if their case has any merit at all, so that they do not end up wasting the time of the court, annoying the judge and getting costs awarded against them? Generally, a judge would provide assistance to self-represented litigants, however, as has often been said, a judge must not “descend into the arena”. For the self-represented litigants that fall through the cracks of our legal system, something must be done!
They are entitled to have access to justice too!
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