Across Canada, there continues to be a rising trend in self-represented litigants. With this comes the need for these individuals to understand the rules and procedures of the court to ensure efficient, fair and affordable access to justice.
In the recent decision of Bloomer v Workers Compensation Board (2020), Alberta’s Court of Appeal confirmed that motion judges have no authority to correct the procedural missteps of self-represented litigants, reinforcing the expectation that self-represented litigants familiarize themselves with the relevant legal practices and procedures pertaining to their individual case.1
While the Court acknowledged the disadvantages encountered by self-represented litigants, it nevertheless confirmed that the same statutory regime and rules apply regardless of whether the litigants have legal representation or not.
Self-represented litigants may be shown some flexibility in the judicial process in the manner in which they are guided and shown leniency at times. However, there are instances where Courts are limited in their flexibility, where there simply are no redo’s, such as with court filings.
Filing Mistakes Can Prove Costly
Hypothetical: Let’s say you come and notice that your child’s vehicle is damaged; it appears to have been rear-ended while parked, and you have good reason to believe it was the fault of your neighbour. (Ex: Security camera footage).
Since the vehicle is owned by your 17-year-old, you decide in an effort to save costs to bring an action in small claims court against your neighbour for the cost of the repairs. You draft up the claim under your child’s name, file it in the Court’s e-filing system and click submit. Moments later, you realize you used the wrong form and now you need to correct the form you’ve submitted. What’s the fix and will it cost you?
Unfortunately yes, and the fix is not as straightforward as hoped. Since the claim involves a minor, or as the court defines it (a person with a disability), the court clerk would not be able to accept a Form 23A “Intent to Withdraw” or “Notice of Discontinuance” due to Rule 23 of the Rules of Civil Procedure. A registrar is unable to sign off on this change due to the involvement of a minor.
RULE 23 DISCONTINUANCE AND WITHDRAWAL 2
Discontinuance by Plaintiff
23.01 (1) A plaintiff may discontinue all or part of an action against any defendant,
(a) before the close of pleadings, by serving on all parties who have been served with the statement of claim a notice of discontinuance (Form 23A) and filing the notice with proof of service;
(b) after the close of pleadings, with leave of the court; or
(c) at any time, by filing the consent of all parties. R.R.O. 1990, Reg. 194, r. 23.01 (1); O. Reg. 427/01, s. 10.
(2) If a party to an action is under disability, the action may be discontinued by or against the party only with the leave of a judge obtained on motion under rule 7.07.1. O. Reg. 19/03, s. 6.
To correct this mistake, it will require bringing a motion to a judge to explain what happened with respect to filing the incorrect form. When drafting this motion, the Court advises to provide notice to the other side, and if possible, to obtain their consent. If the opposing side has already filed an intention to defend, this change will likely involve cost consequences.
There are limits on the Court’s ability to relax the rules for self-represented litigants, particularly when it comes to contraventions or issues of non-compliance that affect deadlines, limitation periods and filing mistakes.
Takeaway: When going the route of self-representation, be careful when filing and familiarize yourself with the rules, procedures and protocols applicable to your case because mistakes can be costly.
Access to justice has become an important issue of focus in many areas of the law, particularly in family courts. It is important to rely on the help of experts and legal professionals to help navigate and guide you through the process.
This blog was co-authored by Student-At-Law Amar Gill.
“This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please contact a lawyer. Each case is unique and different and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.”