Is the cost of litigation out of reach for middle class Canadians?
By Kristine Anderson
A recent Toronto Star article by Ellen Roseman raises the issue of the cost of litigation being out of reach of middle class Canadians. The article states that consumers may strike out in small claims court unless they hire a lawyer and cites several authors who speak more generally about access to justice issues and cost of litigation. Read Toronto Star
In her article, Roseman references an example of a consumer whose action against a large motor vehicle company in regard to an alleged defect in his vehicle was dismissed after a trial. The losing consumer voiced the concern that he could not afford the appeal and the implication appears to be that he may not have lost his case at trial had he been able to afford a lawyer.
I am going to suggest we look at this example from another viewpoint that challenges us to look at what we expect from our system and what access to justice truly means.
The consumer called no witnesses and simply led his own evidence. The motor vehicle company was represented by a lawyer and called witnesses. The article states that the case appeared to fail because the consumer plaintiff did not prove the defect in his vehicle.
What is not clear is the reason why the plaintiff failed to prove the defect. Was it because of lack of access to advice from a lawyer he could not afford; because he didn’t understand the burden of proof he had to meet and what kind of evidence is needed to prove a case; because he could not afford an expert to speak to the evidentiary issue; or that the evidence simply did not support his case?
We will never fully know which one factor or combination of factors fed into the result in this case and whether an appeal would have brought the consumer the “justice” he sought. But, should we automatically jump to the conclusion that a self-represented plaintiff losing to a company represented by a lawyer means the plaintiff was somehow denied access to justice? Would it have been justice to find in the plaintiff’s favour if the evidentiary burden of the plaintiff had not been met?
It is not my intent to say there is nothing about the system that cannot be adjusted or that the system cannot be made more accessible. However, before we say that the system is inaccessible, it is critical to attempt to define what we mean when we refer to “access to justice.”
The small claims court process has been streamlined to assist self-represented individuals. A lot of work has gone into making accessible forms and information guides to assist users in accessing the system.
Many lawyers now unbundle their services to assist clients who have limited budgets. The unbundling can take the form of assisting a client to identify the legal issues and drafting a claim for the client to issue.
Paralegals are now widely available to assist parties in drafting pleadings and to assist throughout the process.
That gets you in the door, now what?
A smaller monetary value claim does not always equate with simple and straightforward legal issues and evidentiary principles dictate that if you assert, you must prove.
It seems to me that access to justice cannot mean that evidentiary standards are lowered or that legal tests are overly simplified or ignored just because the monetary claim is within the small claims court jurisdiction. Claims for smaller amounts of money must be tried with the same rigour and integrity as larger money cases.
There has to be a balance between ensuring you are bringing a claim on sound legal principles and the cost of so doing.
I find that the deputy judges who preside over small claims court pre-trial settlement conferences are very adept at assisting self-represented litigants in terms of explaining what their evidentiary burden is, explaining the process, suggesting what documents are required for trial etc.
Duty counsel is also available at some courts (for example at the Toronto Small Claims Court) and can be consulted to ensure that unrepresented parties are aware of what they must prove or aware of the case they are defending.
Yes, it is true that a self-represented person does not have the benefit of years of legal schooling and practical training. However, there are free resources available so they can understand their case legally and understand the system procedurally prior to attending at their trial. I personally have been up against many very articulate and self-informed self-represented litigants.
The deputy court judges are also very good at ensuring that self-represented litigants are offered a full opportunity to state their case and call their evidence at the trial.
It is true that the general public, government, lawyers, and judges must always strive to ensure that access to the system is not biased in favour of those with means. However, I believe the efforts that have been made in the small claims court do work toward levelling the playing field and I have confidence that this work will continue.
Do you have to hire a lawyer to win against a company? No. But, if you cannot afford a lawyer and you want to see your case to the end of a trial you may have to spend time educating yourself on legal principles, evidentiary rules and ensuring you have the evidence you need to prove your case.
As a final note, it is very important to consider whether a trial is the most effective form of “justice” in all cases.
Many litigants want their “day in court” and to this end they may refuse to discuss meaningful settlement options. However, proceeding to court, even for a person of higher means, must always involve an examination of the risk as compared to the cost, whether that be the cost of a lawyer or the cost of proving your case.
There is a reason why lawyers don’t do that many trials. Settlement is often the most valuable form of justice available whether you are a high-income earner or a middle class Canadian. More effort put into generating innovative settlement proposals would benefit all who chose to access the legal system.