Judicial Responses to Self-Represented Litigants in the Courts of British Columbia

Shawn CourtneyUniversity of Victoria, Faculty of LawAccess to Justice Center for Excellence

April 2016

Executive Summary

This paper considers how Canadian courts, particularly those in British Columbia, have responded to the increased proportion of self-represented litigants ("SRLs") in civil and family cases. The paper does not specifically address criminal law proceedings.

Self-represented litigants face an uneven playing field when it comes to court proceedings. The court's duty to ensure a fair trial in these circumstances has two broad and interrelated components: the proper judicial role and the flexible application of court procedures.

The first component concerns the assistance which a judge may give an SRL while still respecting the limits of the judicial role. This includes the duty to remain impartial in both appearance and fact. Trial fairness is the standard for assessing the scope of permissible judicial assistance.

Fairness means an SRL must have a fair opportunity to present their case to the best of their ability. Fairness also means that a judge should attempt to accommodate an SRL's unfamiliarity with court procedures so the SRL can present their case. However, in doing so the trial judge cannot trench on the rights of other parties.

Courts have articulated several specific prohibitions on judicial conduct in relation to SRLs. A judge cannot become an advocate, provide legal advice, interfere excessively with the trial, usurp the role of counsel, advance new arguments for the SRL, or act in any other way that impairs the rights of any other party.

However, judges must ensure that the trial runs efficiently and fairly. Accordingly, judges may offer guidance to an SRL on matters including court procedures, presenting evidence and examination of witnesses. Judges may also intervene more directly on such matters, by asking questions of witnesses, for example.

An interventionist approach is more common in Provincial Court proceedings. This is a consequence of the historically high proportion of SRLs in that court. However, trial fairness and judicial impartiality remain as essential in the Provincial Court as they are in the Supreme Court.

The second component of trial fairness involves the application of court rules. While court rules apply equally to SRLs, courts are able to provide some accommodation. In general, the court will consider two factors: one, whether it would be unfair to demand from an SRL the same level of compliance expected from a lawyer; and two, whether accommodating an SRL would impinge upon another party's rights.

Courts have also articulated a number of expectations of SRLs in terms of their compliance with court rules. Broadly speaking, SRLs must act honestly and with courtesy, adhere to judicial instructions, and become familiar with the law and procedures relevant to their case.

The extent to which courts will accommodate SRLs on procedural matters depends partly on the context. The court will take a firmer stance on appeals. Courts are willing to show more flexibility when it comes to SRLs' pleadings and their presentation of evidence.

SRLs may receive special costs but, more often, the court assesses special costs against them.

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Introduction

Self-represented litigants ("SRLs") are appearing in Canadian court rooms in ever-increasing numbers.1 SRLs both evince and contribute to the growing access to justice problem, as they tend to slow the court process, increase costs for parties represented by counsel, and contribute to judicial stress and burnout.2

This paper reviews how Canadian courts, particularly those in British Columbia, have responded to the presence of SRLs in civil and family cases. This paper does not address the criminal law context, though the case law in that area also deserves attention.3

This paper seeks to respond to a gap in the existing literature by identifying themes in the judicial response to SRLs. Others have studied the experiences of SRLs as they navigate the court process,4 provided advice to counsel5 and judges6 on engaging with SRLs, and surveyed lawyers and/or judges regarding their experiences with SRLs.7

This paper begins by reviewing how Canadian courts envision their proper judicial role in relation to SRLs. It outlines some specific duties, prohibitions and permissible actions that emerge from the case law. It discusses the relatively interventionist judicial approach which exists in the Provincial Court, as well as judicial expectations of SRLs in terms of procedural compliance – including the extent to which courts may grant SRLs leeway on procedural matters. Specific topics considered include pleadings, evidence, appeals, and costs awards. Finally, because it may indicate where we are headed on this issue, the paper briefly looks at how the courts in California have responded to the growing number of SRLs in that jurisdiction.1 I employ "self-represented litigant" to encompass all litigants without formal legal representation, whether

they have deliberately chosen to eschew counsel or they cannot afford a lawyer but would prefer to have one.

2 Rt Hon Beverley McLachlin, "Justice in our Courts and the Challenges We Face" (Speech delivered at the Empire Club of Canada, Toronto, 8 March 2007).

3 The BCCA in R v BKS, 1998 CanLII 14980 (BC CA) at para 26, [1998] BCJ No 507 summarized the key principles: "A trial judge has an obligation to ensure that an accused receives a fair trial. When faced with an unrepresented accused the trial judge should, within reason, assist the accused in the conduct of his defence and guide him through the trial process so that his defence is effectively brought out. Just how far a trial judge should go in doing so is necessarily a matter of discretion." See especially R v Phillips, 2003 ABCA 4, aff'd 2003 SCC 57.

4 Julie Macfarlane, "The National Self-Represented Litigants Project: Identifying and Meeting the Needs of Self-Represented Litigants," Final Report, May 2013.

5 Casey L Leggett, "Self-Represented Litigants, Lawyers and Access to Justice: Some Ethical and Practical Considerations," Paper 6.1, March 2015, Civil Litigation Basics – 2015 Update; Howard A Mickelson, QC and Casey L Leggett, "Strategies and Advice for dealing with Self-Represented Litigants," CLE-TV: Layperson vs. Laywer, Paper 1.1, [no month] 2014; Andrew P Morrison and Alastair Wade, "I'm Not a Lawyer, Your Honour: Tips for Dealing with the Self-Represented Litigant," Chambers Secrets – 2013, Paper 5.1, February 2013; Michael D Parrish, "When David Becomes Goliath: Litigating Against Self-Represented Litigants," Rules of Court – 2009, Paper 7.1, April 2009; Ivar Lee, "10 Rules for Dealing with Self-Represented Litigants in Provincial Court," Personal Injury & ICBC Cases in Provincial Court, Paper 5.1, November 2008.

6 The National Self-Represented Litigants Project, "Working with Self-Represented Litigants: Ideas and Suggestions from the Bench," November 2014; Judicial Council of California, "Handling Cases Involving Self-Represented Litigants: A Benchguide for Judicial Officers," January 2007; Canadian Judicial Council, "Statement of Principles on Self-represented Litigants and Accused Persons," September 2006.

7 Madam Justice Victoria Gray, "Self-Represented Litigants and the Law of Evidence," Presentation to CLE BC Board, February 2015; John-Paul E Boyd, Lorne D Bertrand & Joanne J Paetsch, "Self-Represented Litigants in Family Disputes: Views of the Judges of the Alberta Court of Queen's Bench," Canadian Research Institute for Law and the Family, April 2014.

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SRLs have compelled judges to grapple with the practical aspects of ensuring a fair trial when the adversaries are manifestly not on an even playing field. Broadly speaking, the judiciary has elucidated its proper role in relation to an SRL as an assistant but not an advocate or legal advisor. The judiciary is generally willing to grant some accommodations to SRLs, particularly on procedural and evidentiary matters, but not to the extent of impairing another party's rights.

The Basic Framework on the Proper Judicial Role toward SRLs

The Supreme Court of Canada ("SCC") has provided little explicit guidance on how lower courts should respond to SRLs in the civil or family contexts. The SCC in British Columbia (Attorney General) v Christie denied any "general constitutional right to counsel in proceedings before courts and tribunals dealing with rights and obligations."8 A corollary is that SRLs are not inherently problematic from a constitutional standpoint.

The SCC noted, without elaborating, in New Brunswick (Minister of Health and Community Services) v G (J) that a "trial judge is under a duty to ensure a fair hearing, and has the ability to assist [an SRL] in the proceedings, within the limits of his or her judicial role."9

The SCC has also articulated certain concepts especially relevant to judicial engagement with SRLs, such as the reasonable apprehension of bias in R v S (RD).10 Accordingly, the trial judge must remain impartial in both appearance and fact when faced with an SRL.11

Within this basic framework Canadian courts have articulated the essential problem they face with SRLs, along with more specific duties, prohibitions and permissible actions in relation to such litigants. The lack of detailed direction from the SCC means that most courts have looked to their counterparts in other provinces for guidance. Superior courts have also drawn from criminal cases to flesh out their responses in the civil and family contexts.12

The Judiciary's Duties toward SRLs

The British Columbia Supreme Court ("BCSC") in Rhodes v All Pro Building Maintenance Ltd noted the "dilemma" courts face with SRLs: should they "be granted expanded latitude and liberties in the conduct of their case? Is the Court delivering fairness if it makes those extraordinary accommodations? What about the other litigants whose legal and procedural rights appear to be diminished when those accommodations are made?"13

The Ontario Court of Justice also addressed this issue in Baziuk v Dunwoody, in comments which the BCSC has often quoted:

8 2007 SCC 21 at para 27.9 [1999] 3 SCR 46, 1999 CanLII 653 at para 82 [G(J)].10 [1997] 3 SCR 484, 1997 CanLII 324 (SCC). 11 Child and Family Services of Winnipeg v JA et al, 2004 MBCA 184 at para 32 [JA 2004]; MacMillan

Bloedel Ltd v Simpson 1994 CanLII 1731 (BC CA) at para 135, 113 DLR (4th) 368; Majcenic v Natale, 1967 CanLII 267 (ON CA) at 19, 66 DLR (2d) 50 [Majcenic].

12 See for example Vasdev v Décor Home Enterprises Ltd, 2012 BCSC 420 at para 52 [Vasdev], citing R v Brouillard, 1985 CanLII 56 (SCC), [1985] 1 SCR 39 at 44; Barrett v Layton (2004), 2004 CanLII 32185 (ON SC) at p 394, 69 OR (3d) 384 [Barrett].

13 2013 BCSC 1249 at para 32 [Rhodes].

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The problem of unrepresented parties, who may not be familiar with law and procedure, is one which is facing courts today with an ever increasing frequency. Courts are mindful of a degree of understanding and appreciation which should appropriately be extended to such parties. However, notwithstanding the difficulty with such parties attempting to properly represent themselves, courts must also balance the issues of fairness and be mindful of both, or all parties. Issues of fairness of course must always be determined in accordance with accepted legal principles and the law which has developed. A sense of fairness and understanding granted to unrepresented parties ought never to extend to the degree where courts do not give effect to the existing law, or where the issue of fairness to an unrepresented litigant is permitted to over ride the rights of a defendant party.14

Trial fairness is a consistent theme in the case law. The British Columbia Court of Appeal ("BCCA") in Burnaby (City) v Oh adopted a frequently-cited statement by the Ontario Court of Appeal ("ONCA") in Davids v Davids:

Fairness does not demand that the unrepresented litigant be able to present his case as effectively as a competent lawyer. Rather, it demands that he have a fair opportunity to present his case to the best of his ability. Nor does fairness dictate that the unrepresented litigant have a lawyer’s familiarity with procedures and forensic tactics. It does require that the trial judge treat the litigant fairly and attempt to accommodate unrepresented litigants’ unfamiliarity with the process so as to permit them to present their case. In doing so, the trial judge must, of course, respect the rights of the other party.15

This accords with the SCC's caution in G(J) that in the child-welfare context an SRL who "chooses not to have a lawyer, whether or not she is able to afford one ... voluntarily assumes the risk of ineffective representation."16

Appellate courts across Canada, including the BCCA in Burnaby v Oh, have repeatedly cited the Manitoba Court of Appeal's ("MBCA") statement in Director of Child and Family Services (Man) v JA that the trial judge must "ensure that a party's lack of legal training does not unduly prejudice his or her ability to participate meaningfully in the proceeding."17

Such statements suggest that the courts are not necessarily equating meaningful participation with effective representation. An SRL has the right to the former but not to the latter. At some point ineffective representation undermines an SRL's ability to participate meaningfully, and the courts must navigate the blurry dividing line between the two concepts.

Finally, the BCCA noted in Crepnjak v Crepnjak that "trial judges often face the difficult task of having to adjudicate important issues based on inadequate materials provided by self-represented litigants. That difficulty is often exacerbated by inadequate submissions on the legal issues in the dispute." Despite this, trial judges must still "provide adequate reasons to

14 [1997] OJ No 2374 at para 18, 13 CPC (4th) 156 [Baziuk]; see Kemp v Wittenberg et al, 2001 BCSC 273 at para 9; Jackson v Honey, 2008 BCSC 771 at para 15; Bay v Family Insurance Corporation, 2008 BCSC 1164 at para 29; Ferstay v Dywidag Systems International, USA Inc, 2009 BCSC 833 at para 21.

15 2011 BCCA 222 (leave to appeal to SCC refused [2011] SCCA No 462) at para 35 [Burnaby], citing Davids v Davids, 1999 CanLII 9289 (ON CA), [1999] OJ No 3930 [Davids].

16 Supra note 9 at para 103.17 2006 MBCA 44 at para 32; see also: Ridout v Ridout, 2006 MBCA 59 (leave to appeal to SCC refused

[2007] 1 SCR xiv) at para 13 [Ridout]; Burnaby, ibid at para 36.

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support their findings in order to permit meaningful appellate review."18

Prohibited Judicial Conduct

Several prohibitions on judicial conduct also exist. The trial judge cannot: become an advocate for the SRL;19

provide legal advice to the SRL;20

interfere excessively with the trial proceedings;21

project himself or herself into the arena;22

usurp the role of counsel;23

devise and advance new arguments on behalf of the SRL;24 or act in a way that impairs the rights of any other party to the proceeding.25

The BCCA in MacMillan Bloedel Ltd v Simpson also cautioned judges to "be very careful when they embark upon the cross-examination of a witness without being properly briefed."26

Permissible Judicial Conduct

Courts have also suggested actions that judges may take in their discretion. The Nova Scotia Court of Appeal ("NSCA") affirmed in Murphy v Wulkowicz that "the trial must be run as efficiently and fairly as possible. This may require the judge to offer guidance to a self-represented party."27

More specifically, the BCCA suggested in Wolowidnyk v Wolowidnyk that

the scope of a trial judge’s responsibility to manage and control the proceedings [includes] ensuring the reception of only properly admissible evidence, fulfilling [the] duty to assist unrepresented litigants, intervening to sort out or clarify confused or inept questioning, ensuring the evidence elicited properly addresses only relevant issues, and, in the interests of judicial economy, limiting the answers given by prolix witnesses.28

The ONCA has suggested that judges may question witnesses to elicit evidence not led by the parties.29 However, many BCSC judges in civil and family cases involving at least one SRL 18 2011 BCCA 177 at para 23 [Crepnjak]. 19 Newson v Kexco Publishing Co Ltd, 1995 CanLII 1182 (BC CA) at para 19, 17 BCLR (3d) 176 [Newson];

Ridout, supra note 17 at para 13; Cammack & Co v Kavanagh, 2006 BCSC 1298 at para 74; Cicciarella v Cicciarella, 2009 CanLII 34988 (ON SCDC) at para 45, 252 OAC 156; Burnaby, supra note 15 at para 36; Family and Children’s Services of Cumberland County v DMM, 2006 NSCA 75 at para 29 [DMM]; JA 2004, supra note 11 at para 38; Barrett, supra note 12 at p 393; Murphy v Wulkowicz, 2005 NSCA 147 at para 37.

20 DMM, supra note 19 at para 29; Ridout, supra note 17 at para 13; Re: Robert Roy Little, 2004 BCSC 1087 at para 2.

21 DMM, supra note 19 at para 29.22 Ibid; Majcenic, supra note 11 at 19.23 DMM, supra note 19 at para 29; Barrett, supra note 12 at 391.24 Newson, supra note 19 at para 19; Kent v Waldock, 1996 CanLII 2279 (BC CA) at para 27, 26 BCLR (3d)

11; Topgro Greenhouses Ltd v Houweling, 2006 BCCA 183 at para 51. 25 Haynes v Vancouver School Board, 2007 BCCA 223 at para 10; Davids, supra note 15 at para 36; Baziuk,

supra note 14 at para 18.26 Supra note 11 at para 135.27 Supra note 19 at para 37 28 2012 BCCA 158 at para 23.29 See discussion in Barrett, supra note 12 at 394-395.

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hesitate to question witnesses. Major reasons for this reluctance include a desire to not appear partial, to not give legal advice, and to not undercut the adversarial process.30

The NSCA also opined in DMM that a trial judge may properly assist SRLs

by advising them about the process and how to present their evidence, by helping them frame non-leading questions, by suggesting lines of questioning that might be appropriate, by asking questions that [assist] them in introducing their evidence and by offering guidance in how to best present their argument.31

The Provincial Court: A More Interventionist Role

Compared to the BCSC, the British Columbia Provincial Court ("BCPC") operates on a different set of assumptions about litigants and the nature of appropriate judicial conduct. SRLs comprise around 90 percent of civil and family litigants in the BCPC and the judges who deal with them must "possess the qualities of patience, humility and compassion, and a keen understanding of human nature."32

A different model is appropriate in the small claims process because litigants are usually self-represented and "generally have little or no knowledge of the law," as the BCSC observed in Garry v Pohlmann.33 The BCSC in that case noted further that "[g]iven the nature of small claims proceedings, appellate courts have recognized that the role of trial judges in small claims court is often, by necessity, more interventionist."34

The themes of an interventionist approach, fairness and judicial discretion in the conduct of proceedings appear repeatedly in the case law. Summarizing a number of authorities on small claims practices, the BCSC in Jimenez v Azizbaigi concluded:

A trial judge may intervene to clarify witness testimony in order to understand the evidence. A trial judge may assist litigants by directing them away from irrelevancies and indicating what issues are determinative of the matter, or by asking the litigant to focus their questioning of witnesses on legally relevant factual issues. A trial judge may take control of the proceedings when a litigant argues with a witness instead of asking questions, where litigants delay proceedings by repeating the same evidence, or where litigants insist on repeatedly focusing on irrelevancies. The appropriate frequency and forcefulness of interventions will depend on the individual litigant; some will require more assistance than others. The manner in which proceedings should be conducted is left to the discretion of the trial judge.35

Commenting on Rule 10(1) of the Small Claims Rules,36 the BCSC in Brown v Searle affirmed that

30 Gray, supra note 7 at 27-28.31 Supra note 19 at para 29.32 2010 Judges Compensation Commission, Final Report of the 2010 British Columbia Judges Compensation

Commission, September 2010 at 19.33 2001 BCSC 1234 at para 43 [Pohlmann].34 Ibid at para 46; see also Wagg v Canada, 2003 FCA 303 at para 32.35 2008 BCSC 1465 at para 7, citing Pohlman, supra note 33 and the authorities therein; Pomerleau v Snarsky,

2009 BCSC 452 at paras 5-6. 36 BC Reg 261/93.

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Particularly when the parties are unrepresented ... a trial judge must be given broad discretion in how to run the process. The overriding principle is to ensure fair process, and so long as that principle is protected, a trial judge in a dispute of this nature must be allowed to supervise the process without appellate interference on procedural grounds, unless a party has been shown to have been prejudiced as a result.37

The BCPC has also acknowledged a judge's "duty to identify legal issues for the parties, to invite their submissions respecting them, and to decide the case according to law." More specifically, this involves a "duty to raise legal issues which must be decided in order to adjudicate the claim which is made" but the judge cannot "assume a role as advocate or inquisitor" by "suggest[ing] different claims which might have been made."38

A discretionary, interventionist approach is not limited to civil matters in the BCPC but is also appropriate for the court's family law proceedings. The BCSC in OCC v AC noted in the latter context that

a judge hearing interim applications often has limited time to canvass facts, particularly when parties are unrepresented. In those circumstances, adopting an inquisitorial, issue by issue, procedure, with the judge asking most of the questions, or at least directing the areas of inquiry issue by issue, may be more workable than an adversarial process.39

The Federal Court of Appeal in Wagg v Canada reviewed provincial superior court authorities and suggested that

[a] trial judge who is dealing with an unrepresented litigant has the right and the obligation to ensure that the litigant understands the nature of the proceedings. This may well require the judge to intervene in the proceedings. However, the trial judge must be careful not to give the perception of having closed his or her mind to the matter before the Court.40

While a BCPC judge may adopt a more interventionist stance with SRLs, trial fairness remains key. One aspect of this is judicial impartiality. The concept of a reasonable apprehension of bias remains vital and the standard is the same in both the BCPC and BCSC.

A BCPC judge will undermine trial fairness by becoming an advocate for one side. For instance, while a judge may seek to clarify a witness' answers to the judge's questions they may not cross-examine witnesses or otherwise interact with witnesses in an aggressive, argumentative or adverse manner.41

Procedural fairness also remains essential in the BCPC. In Priority Building Services Ltd v Ali the BCSC suggested that an SRL may be "given some leeway to rely on 'inelegant' pleadings so long as the opposite party is put on notice of the issues and of the necessity to adduce relevant evidence at trial."42

37 2014 BCSC 659 at para 9.38 Waytowich v District of Kitimat et al, 2012 BCPC 400 at paras 4-5, citing DMM, supra note 19.39 2013 BCSC 682 at para 53.40 Supra note 34 at para 33.41 IProperty Inc v SR Websports Inc, 2015 BCSC 2407 at para 33; Vasdev, supra note 12 at paras 59-62.42 1999 CanLII 5329 (BC SC) at para 17, [1999] BCJ 2820.

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Given that the BCPC process is based on the assumption that litigants are self-represented, it raises the question whether the BCSC will move toward a more inquisitorial model as the number of SRLs in the latter court continues to increase.

Flexible Procedures

Apart from discussing the proper judicial role vis-à-vis SRLs, courts have also considered a second issue of how court procedures should apply to SRLs. The two issues are closely linked because trial fairness underpins them both.

Thirty years ago the BCCA in Great West Life Assururance Co v Royal Anne Hotel Co captured many of the salient dimensions of the second issue when it suggested that

the court will relax rules of procedure in favour of a litigant in person where the failure to do so may work an injustice. But that approach, although sometimes necessary, must be cautiously exercised. If it is not, the inevitable result will be injustice to the represented party. If justice is to be done between the parties, the court must hold an even hand between them. In that endeavour, the rules must be the servant and not the master of the court and so there must be a reasonable degree of flexibility; but it remains essential that both adversaries be required to abide by the rules.43

The BCCA made a similar statement more recently in Hegel Estate v Logan, though one perhaps slightly more generous to SRLs given their greater numbers today:

it is important to emphasize that the Civil Rules apply to all parties whether or not they are represented. A self-represented litigant is not exempt from the application of the Civil Rules, although it may often be appropriate to apply them in a manner that is sensitive to the position of a person who is representing himself or herself.44

At first glance, such statements contain an apparent tension between applying the rules equally to SRLs and granting accommodations to SRLs. Examples abound in the case law where the court stresses one idea or the other.45

Trial fairness explains the relationship between the two ideas. The rules do apply to SRLs. SRLs are not entitled to follow a different set of procedures as that would be obviously unfair to other litigants. At the same time, the court has the discretion to allow an SRL some leeway in the rules' application when fairness to the SRL requires it.

When exercising its discretion the court must consider whether: given the SRL's situation, such as their level of intelligence and legal sophistication, it

is unfair to demand the same compliance expected from a professional lawyer; and accommodating the SRL on procedural matters would trample the rights of the other

party.46

43 1986 CanLII 980 (BC CA) at para 13, 31 DLR (4th) 37.44 2015 BCCA 197 at para 23.45 Contrast Cole v British Columbia Nurses’ Union, 2014 BCCA 2 at para 36 [Cole] with Kulbacki v Kulbacki,

2014 BCCA 82 at paras 34-37. 46 Berezowski v British Columbia (Residential Tenancy Branch), 2014 BCSC 363 at para 178.

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In addition, the BCCA in Cole v British Columbia Nurses' Union noted the Canadian Judicial Council's ("CJC") exhortation that "[j]udges should ensure that procedural and evidentiary rules are not used to unjustly hinder the legal interests of self-represented persons."47 Unlike when both (or all) parties are represented by counsel, the court cannot assume that an SRL and a lawyer are operating on an even playing field.

Expectations of SRLs

The courts have also articulated certain expectations of SRLs in terms of their compliance with court rules. These include:

an SRL "cannot ignore his or her responsibilities with impunity";48 SRLs must "reasonably inform themselves on the law surrounding the resolution of

their disputes";49 experienced SRLs should set hearing dates after consulting with the other side and

respecting their availability;50 there is only one "inflexible" standard for honesty;51 an SRL must respond and behave in accordance with judicial instruction;52

in the small claims context the court will not hold SRLs and counsel to the same standard;53

the CJC Statement of Principles on Self-represented Litigants and Accused Persons requires SRLs "to be respectful and familiarize themselves with the relevant practices and procedures of the court process";54

SRLs must act professionally and may not "make comments about other parties or their counsel which damage their reputations by alleging" criminality, incompetence, mendacity, and so on;55 and

the court will take a very dim view of "fundamental failures" that may "cause substantial frustration and waste resources" or "have an irreparable negative effect on the just determination of a case."56

Further, as the MBCA noted in JA 2004, "litigants who choose to represent themselves must accept the consequences of their choice".57 While many SRLs would doubtless rankle at the notion that they "chose" to be self-represented, that does not change the fact that they will live with the consequences. This can include the poorer outcomes that SRLs typically experience than those parties with counsel.58

47 Cole, supra note 45 at para 36.48 Kemp v Dickson, 2006 BCSC 288 at para 22 [Kemp]; Breberin v Santos, 2013 BCSC 560 at para 61. 49 Peck v Peck, 2010 BCSC 1397 at para 58.50 Delvarani v Delvarani, 2012 BCSC 1178 at para 4.51 LeClair v Mibrella Inc, 2011 BCSC 533 at para 12.52 Ibid.53 Rafieyan v Coquitlam et al, 2013 BCPC 185 at para 15.54 0927613 BC Ltd v 0941187 BC Ltd, 2015 BCCA 457 at para 65.55 Parranto v Brummel, 2014 BCSC 815 at para 23; Morecorp Holdings Ltd v Island Tug & Barge Ltd, 2009

BCSC 1692 at para 37; Leger v Metro Vancouver YWCA, 2013 BCSC 2021 at para 77 [Leger]; Kent v Translink, 2016 BCSC 224 at para 12.

56 Kemp, supra note 48 at para 22.57 Supra note 11 at para 37.58 For example, the number of summary judgment applications in Ontario courts between 2004 and 2014

against SRLs increased at a far higher rate compared to represented parties, and applications against SRLs are successful more often than against represented parties: Julie Macfarlane, Katrina Trask & Erin Chesney,

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Appeals

In several recent decisions the BCCA has reasserted its role in relation to SRLs and pointed to the problem that SRLs can present in the appellate context. In Stark v Board of School Trustees of School District No 39 (Vancouver) the BCCA addressed

the tension that often develops between the role of this Court and the focus of self-represented litigants on establishing a position that has been advanced and rejected in proceedings previous to an appeal. Where it is feasible to do so, it is incumbent on this Court to communicate to litigants in practical terms why decisions adverse to their interests were made. It is necessary for self-represented litigants to understand and appreciate not only the role of this Court, but the processes available to address their interests.59

In Shebib v Victoria (City), a companion case to Stark, the BCCA struck a similar note by observing "the tension that often develops among the aspirations of self-represented parties, the interests of parties who are represented and the responsibilities of the court in overseeing the orderly administration of litigation."60

The BCCA cited such comments in Vancouver City Savings Credit Union v RD Backhoe Services Inc when it offered more detailed reasons for why an appeal was without merit.61

Similarly, the BCCA in several recent decisions has expressed sympathy for the position of SRLs but nonetheless seems to require rather firm adherence to appellate procedures out of respect for the other parties and the role of an appeal court.62

This firmer stance may reflect an appeal court's unique role as reviewing the record of the court below, rather than offering a trial de novo. Many SRLs may not understand the different functions of the different courts or may be unable to successfully make arguments about why the trial judge erred in law.

Jakob v Jakob presents an illustration of this problem, where "many of the materials filed in the appeal were of limited assistance and amounted to no more than an attempt to revisit old disputes and the merits of previous orders that had not been appealed."63

Striking Pleadings

Courts frequently face an application to strike the pleadings of an SRL. The court's response typifies its desire to give some leeway to SRLs without descending into the fray.

"The Use of Summary Judgment Procedures Against Self-Represented Litigants: Efficient Case Management or Denial of Access to Justice?" Report for the National Self-Represented Litigants Project, November 2015 at 13.

59 2012 BCCA 41 at para 1 [Stark].60 2012 BCCA 42 at para 1.61 2012 BCCA 79 at para 16.62 Murphy v Wynne, 2012 BCCA 113 at para 16; Dawson v Dawson, 2012 BCCA 410 at para 28; Madzar v

Sullivan, 2014 BCCA 416 at para 22.63 2010 BCCA 136 at para 47 [Jakob].

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The BCSC in Speckling v Communications, Energy and Paperworkers' Union of Canada, Local 76, cautioned that "[t]he court should be careful not to drive self-represented litigants from the judgment seat for technical reasons relating to drafting deficiencies. To do so would be both unjust and contrary to the purpose of the rules of civil procedure."64

At the same time, when faced with applications to strike pleadings BC courts have often repeated the BCSC's caution in Pimentel v British Columbia that "[i]t is not the court's role to advise plaintiffs, even unrepresented ones, how to cure deficiencies in their pleadings, nor how to present properly their claims in law."65

The results of such applications to strike are mixed, with the court agreeing to strike an SRLs' pleadings in some cases while in others allowing the SRL to amend their pleadings.

Notably, the influential MBCA decision in Coleman v Pateman Farms Ltd also involved a succesful application to strike an SRL's pleadings. The MBCA said that an SRL

should not be denied the opportunity of presenting his or her case to the court by a strict application of the Rules. The touchstone is fairness and that involves the balancing of the [SRL's] imperfect knowledge of rules and procedures with the right of the other party to know the legal and factual issues that he or she must meet.66

Evidence

SRLs seem to struggle particularly with the rules of evidence when presenting their cases.67 Though not an exhaustive list, the following problems have appeared in the case law:

SRLs may fail to put sufficient evidence before the court, causing problems for the trial judge in adjudicating;68

SRLs may seek to admit inadmissible evidence or admit evidence in an irregular manner;69 and

SRLs may put forward far more evidence than necessary, prolonging the length of the trial.70

The courts have responded to such issues in the manner suggested above: by granting SRLs leeway in appropriate circumstances. As the BCCA conceded in Dosanjh v Liang, when it comes to SRLs presenting evidence in family law cases, despite the formal rules "the technical yields to the practical and the strict rules of evidence are often ignored or accorded only slight deference."71 The BCCA has also allowed SRLs to introduce new evidence (as opposed to fresh evidence) on appeal, despite the fact that the court seldom admits such

64 2012 BCSC 1395 at para 7; see also Ross v British Columbia (Public Safety), 2009 BCSC 1811 at para 14.65 1998 CanLII 6123 (BC SC) at para 19, [1998] BCJ No 788; see Ahmed v Assu, 2014 BCSC 1768; Simon v

Canada (Attorney General), 2015 BCSC 924; Mohebbi v North Vancouver RCMP, 2015 BCSC 2083. 66 2001 MBCA 75 at para 15.67 See Gray, supra note 7.68 SV v MAV, 2002 BCSC 1352; Malaka v Becker, 2000 BCSC 1449 [Malaka]; Chang v Xia, 2015 BCSC

1994; Crepnjak, supra note 18 at para 23; Robertson v Dhillon, 2015 BCCA 469.69 Malaka, supra note 68; Extra Gift Exchange Inc v Chung, 2006 BCSC 526; Verasia v Verasia, 2010 BCSC

659; Rhodes, supra note 13.70 Malaka, supra note 68; Vilardell v Dunham, 2012 BCSC 748; Dignard v Dignard, 2014 BCSC 1902 at para

10; CAJ v NJ, 2014 BCSC 279 at para 4.71 2015 BCCA 18 at para 59.

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evidence, "in the interests of justice" for the SRLs in that case.72

Notably, Justice Rothstein in Trial Lawyers Association of British Columbia v British Columbia (Attorney General) acknowledged in his dissent that trial judges should not "appear to refuse relevant evidence" tendered by an SRL but stressed that

[a]ctive judicial case management is critical to ensuring reasonable timelines in civil proceedings and efficient use of court resources, especially in the case of self-represented litigants. ... [J]udges must enforce the requirement for relevance so that evidence that does not bear directly on the issues will not prolong a trial.73

Costs Awards and SRLs

SRLs in British Columbia today may claim and receive special costs.74 Prior to 1995 SRLs could only recover their disbursements.75

Modern costs rules have a number of rationales, including: indemnifying the successful party; discouraging frivilous suits and unmeritorious defences; encouraging efficient litigation; and sanctioning misconduct by counsel or parties.76

The court often assesses special costs against SRLs on one or more of these bases.77 The court has also awarded 'regular' costs against SRLs for similar reasons.78

However, the BCSC in ICBC v Dragon Driving School et al refused to award costs to an SRL who "[did] not take an active role in litigation and [did] not provide the assistance to the court that is to be expected."79 The BCCA in Dyck v Bell also refused to award costs when the trial encountered many problems because both parties were self-represented.80

Conclusion: Future Directions

California provides a glimpse into what the future may hold for British Columbia and Canada's other provinces in terms of SRLs accessing the courts.

72 Jakob, supra note 62 at para 42. 73 2014 SCC 59 at para 110.74 Skidmore v Blackmore, 1995 CanlII 1537 (BC CA), 122 DLR (4th) 330.75 Kendall v Hunt (1979), 1979 CanLII 763 (BC CA), 106 DLR (3d) 277.76 British Columbia (Minister of Forests) v Okanagan Indian Band, 2003 SCC 71 at paras 25-26.77 See for example Song v Westwood Plateau Golf & Country Club, 2016 BCCA 95 at para 25; Hokhold v

Gerbrandt, 2016 BCCA 5 at paras 33-35; The Owners, Strata Plan LMS3259 v Sze Hang Holdings Inc, 2015 BCCA 424 at paras 10-12; Moon Development Corporation v Pirooz, 2016 BCCA 22 at para 20; Leger, supra note 55 at paras 73-78; TCC Mortgage Holdings Inc v Pilot Pacific Developments Inc, 2014 BCSC 1376 at paras 82-83. In Leger, supra note 55 at para 74 the court said, "Special costs will be awarded in a range of circumstances.  They will be awarded where a party makes resolution of an issue more difficult than it should have been, where a party pursues a meritless claim and is reckless with regard to the truth, or where a party makes unfounded allegations of fraud or dishonesty."

78 Mapara v Ferndale Institution (Warden), 2013 BCCA 120 at paras 10-11. 79 2005 BCSC 1093 at para 38, aff'd 2005 BCCA 490.80 2015 BCCA 520 at para 64.

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In terms of numbers, California has tracked the proportion of SRLs in the family court system since at least 1971. In that year SRLs comprised one percent of all litigants; that figure had increased to 46 percent by 1992 and 77 percent by 2000.81

In British Columbia in 2011, in 57 per cent of hearings held under the Family Relations Act82 one or both parties were SRLs. This reflects a growing trend "away from professional services and towards a 'DIY' approach."83 Clearly, SRLs are here to stay and unless access reform becomes more effective in the future than it has been so far, it may be prudent to expect their numbers to grow even larger.

In California, the judiciary have articulated detailed techniques and guidelines respecting the ethical, legal and practical issues judges face in dealing with SRLs. In 2007, the Judicial Council of California published a bench guide of more than 200 pages providing comprehensive direction to judicial officers handling cases involving SRLs.84

The Statement of Principles on Self-represented Litigants and Accused Persons published by the CJC in 2006 touches on many of the same issues but, at 11 pages, is much less detailed.85 We can expect that law and practice respecting SRLs in British Columbia will grow and evolve quickly over the next few years.

The presence of large numbers of SRLs represents an almost unprecedented procedural challenge to civil and family litigation. It is still a relatively new challenge, so the forms of procedural accommodation are still being worked out.

As noted above, provincial civil and family courts have been dealing with SRLs for longer than superior courts, and appellate courts have recognized that the role of trial judges in provincial court "is often, by necessity, more interventionist."86 It is logical to assume that as superior court judges deal with increasing numbers of SRLs, they too will become increasingly active and interventionist.

81 Macfarlane, supra note 4 at 34. 82 RSBC 1996, c 128. 83 Macfarlane, supra note 4 at 35.84 Supra note 6.85 Supra note 6. 86 Pohlmann, supra note 33 at para 46.

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