The rapid rise of self-represented litigants in Canadian courts has prompted a discussion about fundamental procedural changes. A proposed solution is the creation of courts dedicated exclusively to handling cases without legal representation. This approach goes beyond simple procedural tweaks, suggesting a need for a root and branch overhaul of how these matters are handled. The goal is to establish forums where participants, including adjudicators and staff, exclusively plan for and engage with unrepresented individuals.
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One such experiment has been underway over the past year in a criminal court in Toronto – and there is much to engage with and learn from the example. From a theoretical standpoint there are multiple benefits to this approach, including the facilitation of more meaningful participation by SRLs, the creation of a forum where SRLs can access a more level playing field, and the resulting opportunity to shape outcomes that are directly reflective of SRLs’ participation in the process. From the perspective of the overall legitimacy of the legal system, the creation of processes that truly allow self-represented individuals to turn to law, be heard, and have their matters resolved on terms they understand, serves to strengthen the administration of justice. There is also a pragmatic benefit associated with shifting SRL cases to a designated court that responds to certain criticisms directed at SRLs in the traditional civil justice system. This criticism is typically focused on the increased court time and judicial resources that are spent addressing SRLs’ unfamiliarity with the legal process: matters may be adjourned and/or take longer to complete when there is a non-lawyer who is unaccustomed to court procedures and inexperienced in substantive law. Lawyers make the argument that prolonged and delayed proceedings cost their clients more in legal fees and other costs. Providing a designated court for SRLs could serve to alleviate some of the delay and additional costs.
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While the benefits may be clear, it is worth noting that establishing an SRL court is not without certain challenges. Most significantly, where judicial resources are already stretched in many ways, setting aside court space, personnel, and resources to hear a specific group of matters may be difficult to justify fiscally. From a doctrinal standpoint, the body of common law could be negatively impacted by the generation of case law in an SRL court; this is based on a concern that decisions reached in a court without lawyers would lack the rigour associated with the traditional adversarial process. While not an insignificant issue, the question that might be raised in response is whether the common law is currently served by the outcomes reached in cases involving SRLs who are unable to participate effectively. Moreover, SRL court pilot projects may focus on initial and interlocutory adjudicative steps as opposed to trials. Additionally, and perhaps more fundamentally, SRL courts would require a different way of thinking about dispute resolution processes. Because the adversarial model of adjudication is so deeply steeped in the principles of party autonomy and party prosecution, it may be very difficult to shift away from this mode of adjudication and all the practices and procedures that are associated with the adversarial model. Recent criticism directed at the administrative context supports this concern: despite the expectation that the administrative regime would be better placed to resolve certain legal issues involving non-lawyers, the process in certain administrative tribunals remains very adversarial. In certain tribunal settings, parties without lawyers often fare worse than those with lawyers. Thus, the development of an SRL court would need to undertake a critical evaluation of the principles of adjudication, with the understanding that many of t
