Julie’s Post: “A Punitive Costs Award Against a SRL – And the Lawyers Who Gloat”

Dr. Julie Macfarlane, Project Director of the National Self-Represented Litigants Project is a leading academic in the field of self-reps, and speaks with authority on the subject. She has written a strong post commenting on a recent decision from the Superior Court of Ontario effectively penalizing a self-rep for being a self-rep. The post raises issues troubling all of us who are concerned about finding ways for people without lawyers to be effective in court. She has been kind enough to allow us to reprint it in full below.

From the perspective of a system designed by lawyers for lawyers, people who don’t understand or follow the rules are troublesome and should be penalized with costs for not following the rules. The rules apply to everyone. They’re publicly available if you know where to look for them. And if you can’t follow the rules of the game, you shouldn’t be allowed to play. You show respect for the court by respecting its rules. That helps deter others from not following the rules. I get it.

But family law isn’t – shouldn’t be – a game. It’s serious for everyone involved. And it’s difficult for a court to demand respect from a self-rep if it doesn’t, in turn, give respect to the self-represented litigant (SRL). The court needs to appreciate the position a person without a lawyer is in when trying to present their case. Courts are no longer the arena of the judge and lawyers, with rules created by both for the benefit of both. When the vast majority of people in family court can’t afford, or don’t want, to hire lawyers, the system needs to meet the needs of the judge and the litigants – not the judge and the lawyers.

Rules are needed and are an essential part of procedural justice. But they’re there to help people use the system – not just to help lawyers use the system.

Finally, I think this post draws our attention to the need for rethinking the Family Law Rules to fit today’s reality. With the vast majority of people in the family court system (65 – 80% of family law litigants) being there without lawyers, the Rules can no longer be there for the lawyers representing a diminishing pool of clients who can afford to pay for them. We need to ask who are the users of the family court system and how can we make the system more responsive to their needs? It may be too tough to redesign the system. But it shouldn’t be that tough to redesign the rules, if you look at them from the perspective of the users of the system.

Here’s Julie’s post (Oct. 31,2016):

A Punitive Costs Award Against a SRL – and the Lawyers Who Gloat

Last week, I received an email from someone working with self-represented litigants drawing my attention to a case reported in Advocates Daily (Dorey v Dorey (2016 ONSC 2746)).

$15,000 awarded against a SRL for “intentionally” driving up costs

This ruling on costs by Madam Justice McGee awards $15,000 of costs against the applicant mother (self-representing) in a child support variation case. The respondent father was represented by counsel, and the judge accepted the argument that the mother had intentionally escalated the dispute, thereby running up his legal costs.

Specifically:

• She pleaded matters (e.g. equalization) in the temporary motion hearing that can only be argued at trial.
• Because both the respondent’s motion and the applicant’s responding motion were scheduled to be heard on the same day, under the the practice directions for the Central East Region the applicant was limited to “disclosure-only” requests, a restriction that she did not follow (it is not clear if this was the result of an earlier order, or a consent by the applicant to a request from the respondent to hear both motions on the same day).
• The disclosure requests made by the SRL were described by the judge as poorly organized.
• The respondent made an offer to settle (under Rule 18(14)) which the applicant did not accept and made no counter-offer.

Justice McGee acknowledged that “Some of (the mother’s’) issues may yet find solid ground at trial, but they did not belong within a one-hour motion for a temporary order on support.”

The assumption behind each of the complaints against the SRL applicant as they are framed in the judgment is that her behavior was an intentional escalation, aimed at driving up costs on the other side. The award against her is punitive, as if to deter. There is no consideration of the possibility that her actions might be the result of the misapprehension or lack of knowledge of a person representing themselves.

The assumption that the applicant intentionally breached the rules of procedure

Based on our experience over four years of speaking to and hearing from SRLs on a daily basis who are confused by complex court procedures, I would suggest a different and more plausible interpretation of the SRL applicant’s behavior in this case.

• NSRLP hears constantly from SRLs who are not aware of the difference between a motions hearing and a trial, and prepare for a motion as if for trial – not to intentionally cause chaos or drive up fees, but because they do not understand the procedure. It seems extremely unlikely that the SRL applicant argued equalization – cited as one of the reasons for the judge’s order that she must pay the other side’s costs – as an intentional and deliberately disobedient strategy, and far more likely that she simply did not understand that she could not raise this in a motion.
• It took several hours of research (by me and two research assistants) to figure out the source of the “disclosure-only” restriction on the SRL applicant’s motion. It seems extremely unlikely that this obscure procedural point was known to and understood by the applicant SRL. But again her behavior was framed as a deliberate and mischievous “ploy” to absorb more court time and run up costs.
• The complaint about “poor organization” makes me think of the numerous times I have heard from SRLs who are anxious about how to correctly “tab” their “binders”. I had always, until now, found it surprising that so much energy should go into satisfying this requirement. Ms. Dorey’s treatment now suggests that a mistake in this respect can cost a SRL dearly.
• While I have for years championed the cause of fair and just settlement (both as a mediator and as an educator), it seems manifestly unfair to penalize Ms. Dorey for failing to make a counter-offer here. SRLs are often entirely unaware of offer to settle regimes and their cost consequences (introduced to incentivize lawyers to settle on behalf of their clients). SRLs have little or no assistance in developing or evaluating a realistic settlement offer, and are emotionally poorly equipped to negotiate with what they regard as a stronger opponent.

Justice McGee chooses to use her ruling to deliver a stern message that SRLs “must act in accordance with the rules of the theatre.” (para 15) This would be a perfectly reasonable point of course – if it reflected the actual circumstances of the case, which as a matter of commonsense, appear quite different.

How credible is it to imagine that SRLs are so competent as to be not only masters of the system, but also able to exploit it intentionally in order to cause chaos?

To make matters worse, Justice McGee’s stern admonition to the SRL applicant was then gleefully seized upon by legal counsel.

Distasteful commentary by legal counsel

Amit Dror, who represented the father in Dorey, told Advocate’s Daily:

“…self-represented litigants have to understand there are consequences for their actions… self-represented litigants are increasingly being ordered to pay, and pay big.” (my italics)

This statement rests on the assumption – which there is now copious evidence to contradict – that SRLs are without counsel because they fancy themselves as lawyers, rather than because they cannot afford to pay for legal counsel.

• It interprets the defiant countenance of some SRLs – who feel under enormous stress and hugely disadvantaged – as evidence that they actually want to be their own lawyers, rather than a response to the stress they are under.
• It assumes, like the judgment in Dorey, that SRLs are intentionally causing chaos – rather than that their mistakes are the consequence of a complex system, stress, and their unfamiliarity with the minutiae of civil procedure.

Finally, Mr. Dror complains that the other side’s “…documents were full of inflammatory allegations and distortions”. Now this is actually hilarious. I’m sorry, but isn’t that what lawyers are paid to do? So why is it not OK when a SRL does it?

“Free ride is over for self-represented litigants”

Dror’s colleague Gary Joseph used this headline when he published a blog in September which described an Ontario Appeal Court of Appeal decision (Sanzone v Scheter). The tone is derisory and disrespectful.

It is also a curious framing of the judgment. Sanzone v Scheter (2016 ONCA 566) turns out to be a (highly unusual) successful appeal by a SRL against summary judgment, a procedure that NSRLP has shown is used regularly against SRLs by represented parties and has an extraordinary success rate (96%).

However, you would not know this from Mr. Joseph’s blog. The only part of the judgment in Sanzone v Scheter that he chooses to highlight is Justice Brown’s agreement with the respondents that the rules of evidence must be followed – and had not been – by the SRL applicant in relation to the admission of expert evidence. Hence the screamer headline.

When I asked Mr. Joseph for a response to my concerns about the way he presented this case in his blog (Mr. Dror did not respond to a similar request for comment), he told me: “Your focus on those who cannot afford counsel is far too narrow in my view.” Mr Joseph may still believe that a significant number of SRLs are representing themselves because they want to – rather than out of economic necessity, as study after study has now shown.

He goes on to say that we should not “encourage self reps” and instead

“our energies should be devoted to finding ways to make counsel available to those in need.”

I could not agree more. I am wondering what the law firm (MacDonald & Partners) that both Mr. Dror and Mr. Joseph belong to is planning to do about this?

Misdiagnosing the problem – as a campaign of civil disobedience rather than SRL struggles with legal procedure – is only going to escalate the A2J crisis.