1. Self-Represented Litigants’ Rights, Responsibilities & Supports

In 2006, the Canadian Judicial Council issued a statement of principles on self-represented persons to foster access to justice and equal treatment under the law. Read the full statement of principles here. The following are the highlights of the statement.

Access to justice for those who represent themselves requires that all aspects of the court process be open, transparent, clearly defined, simple, convenient and accommodating.

The court process should, to the extent possible, be supplemented by processes including case management, alternative dispute resolution (ADR) procedures, and informal settlement conferences presided over by a judge.

Information, assistance and self-help support for self-represented persons should be made available through the normal means of information, including pamphlets, telephone and courthouse inquiries, legal clinics and internet searches.

All self-represented parties should be:

• informed of the potential consequences and responsibilities of proceeding without a lawyer;
• referred to available sources of representation, including those available from Legal Aid, pro bono assistance and community and other services; and
• referred to other appropriate sources of information, education, advice and assistance.

Judges and court administrators should do whatever is possible to provide a fair and impartial process and prevent an unfair disadvantage to self-represented persons.

Self-represented persons should not be denied relief on the basis of having a minor or easily rectified deficiency in their case.

Where appropriate, a judge should consider engaging in such case management activities as are required to protect the rights and interests of self-represented persons. Such case management should begin as early in the court process as possible.

Depending on the circumstances and nature of the case, the presiding judge may:

• explain the process;
• inquire whether both parties understand the process and the procedure;
• make referrals to agencies able to assist the litigant in the preparation of the case;
• provide information about the law and evidentiary requirements;
• modify the traditional order of taking evidence; and
• question witnesses.

Judges and court administrators should meet the needs of self-represented persons for information, referral, simplicity and assistance.

Forms, rules and procedures should be developed which are understandable to and easily accessed by self-represented persons.

To the extent possible, judges and court administrators should develop packages for self-represented persons and standardized court forms.

Judges and court administrators have no obligation to assist a self-represented person who is disrespectful, frivolous, unreasonable, vexatious, abusive, or making no reasonable effort to prepare their own case.

You have a right to represent yourself. You are allowed to appear in court without a lawyer. However, it is highly advisable to get a lawyer if you are able to do so. Lawyers provide experience and legal expertise that help to reduce the stress and time of a legal case. They can also provide you with valuable advice that can help you prove or fairly resolve your case.

You are expected to prepare your own case. The information in this Handbook is intended to assist you to do so.

You are responsible for learning about the court process, the rules and the law that relates to your case. The fact that you do not have a lawyer will not excuse you from having to follow court rules and processes.

You have the right to be in the courtroom throughout your hearing or trial. However, that right is not absolute: if you disrupt the hearing, the judge can require you to leave the courtroom. If you do not follow the judge’s orders, you can also be found in contempt of court. The punishment for contempt of court may include a fine or jail.

Judges ensure that the case is dealt with fairly and impartially, and ensure that the law of evidence and procedures of the court are followed. Judges hear from witnesses, assess the credibility of witnesses’ evidence, consider arguments and make decisions based on the law and the facts as they find them.

A judge cannot provide you with legal advice. They cannot tell you how to protect your rights or how to run your case. They must remain neutral and unbiased. A judge may, however, provide you with information about the process and help explain and clarify what is happening. If you do not understand what is happening or what you are being asked to do, be sure to ask the judge.

Juries are not common in civil cases in Canada, but if there is a jury, the judge will not be deciding the case. In jury cases, the judge instructs the jury on the law so they can decide what actually happened.

Communications with the other side

Communicating with the other side can be difficult as you are in a legal dispute. The better you communicate the easier, cheaper and quicker it will be to settle your case.

Try to stay focused on the issues that you need to discuss. Set out what you are going to discuss and stay on topic. If you allow the conversation to get off course, your goal will not be met. If the other person is getting off course, refocus them by acknowledging you have heard what they are saying, but that you want to work this issue out before moving on to other issues.

Try practicing these refocusing phrases:

• “I hear what you’re saying about _________. Could we talk about that after we have discussed ____________?”
• “I’m sorry. I’m getting us off topic. Let’s get back to talking about ______________.”
• “We agreed to talk about _______________. Let’s leave the conversation about __________ for later, okay?”
• “I know it’s complicated, but we really need to find a solution about __________.”

Communication tools

When stress levels are high and emotions are sensitive, meeting face-to-face may make it more difficult to reach agreement. Thankfully, there is no shortage of communication alternatives. You can choose to communicate a different way, like by telephone, through e-mail, or by texting. Choose the right communication channel that works for both of you. Remember there is generally less confusion about a communication that is in writing.

Communication with the Court

Usually, court staff will help you as much as they can. If court staff refuse to help you with something, it may be because they are not permitted to give the assistance you are requesting. It is important to understand that court staff cannot give you legal advice.

Communication with the Judge

Do not try to contact the judge outside of the courtroom. If you need to send any letters or information to the Court when you are not in a hearing, send it through the court staff. Make sure to send a copy of everything you give to the Court to the other parties or their lawyers. This is because the judge cannot communicate with one party alone—any communication from the judge to one party must be shared with all other parties.

Going to court and having a trial is not the only way to resolve a civil issue. Often disputes can be settled without trial, and even without starting a legal case. The text below provides information about alternate dispute resolution options (ADR). These methods may help settle your case without going to court.

Negotiation

Negotiation is a discussion between at least two people with the goal of reaching an agreement. It is an everyday activity, whether it is negotiating a work contract or debating with friends about where to go for dinner. Negotiating a civil dispute allows you to have a lot of control over the process. You can come up with a mutually agreed-upon solution. Negotiating your own settlement can allow for creative solutions, while the remedies you get through court will be limited to those specifically allowed by the law.

You can still negotiate and try to settle your case even after a lawsuit has been started. It often takes many months between starting a case and getting to trial. During this time, try to settle some or all of the issues in the dispute. Negotiating a resolution will save you the time and money of going through trial, reduce your stress, and help you move forward in your life.

Mediation

In mediation, the parties in a civil dispute meet with a mediator whose job is to help them talk to each other and see where compromise or creative solutions may be possible. The mediator does not make decisions for you. Their job is to help you make the decisions for yourself. Therefore, mediation allows you to have more control over your case. If the case goes to trial, the judge will make all the important decisions concerning the procedure and the outcome.

Mediation may be used at any time. Sometimes people use mediation soon after a claim has been filed in court. Others use mediation when they get very close to a trial. Mediation may also be used before someone has started a court action. Sometimes there is no need to go to court if mediation is used and the parties come to an agreement.

Arbitration

You might also think about arbitration. Arbitration is a lot like court, because it is adversarial in nature. Rather than a judge, both parties hire someone – the Arbitrator – to decide. While there are positives and negatives to the arbitration process, it can be simpler and faster than court, and is held in private.

If you do not have a lawyer because you cannot pay for one, you can try applying for a legal aid lawyer. There are certain criteria such as income level or type of case that may allow you to qualify for legal aid. Check with your local legal aid provider to see if you qualify. If you do not qualify for legal aid, check to see what other free or low-cost legal services are provided in your area. There are often legal clinics and non-profit organizations that can provide legal advice and representation. Check out Section 13: Resources for listings of services in your community.

Unbundled legal services

If you cannot afford a lawyer to represent you throughout your entire case, you might still be able to get help from a lawyer. A lawyer might provide limited services, which they sometimes call “unbundled” or “limited scope” legal services. If you think you can handle some parts of your case on your own, you can pay a lawyer to do the parts that you cannot do. It is an arrangement where you pay only for what you want. It is a mid-way option between full legal representation and no legal representation.

Here are some examples of how you might pay a lawyer for limited or unbundled services:

• You pay the lawyer to research the law for you and tell you the results of other similar cases that have gone to court; or
• The lawyer helps you prepare the documents that are necessary for the court hearing and gives you advice on how to make your own application in court; or
• You prepare your own court documents and hire the lawyer to represent you at the court hearing.

A client “retains” a lawyer to work on their case. An agreement with a lawyer for legal work is called a “retainer”. A retainer agreement sets out the scope of the lawyer’s involvement in the file.

It is very important that both the client and the lawyer understand and agree on what tasks the lawyer will do. You and your lawyer will want to be sure that you understand the work that you will be doing on your own and the work you are expecting a lawyer to do. Your lawyer will prepare a retainer letter that sets out:

• the lawyer’s responsibilities and the work that he or she will do (and not do);
• your responsibilities and the work that you will do by yourself; and
• how the lawyer’s fees for their work will be calculated.

Even if you do not retain a lawyer, it is always advisable to speak to one about the merits of your case. Your case may be more complicated than you think. So, make sure to exhaust all methods of getting legal advice available to you.

Preparing to meet with a lawyer

Your first meeting with a lawyer is an important step in dealing with your legal dispute. In addition to giving you a chance to meet each other, you can also learn a lot about your legal dispute, and what the result is likely to be. The more prepared you are, the more cost-effectively you can use your time with a lawyer.

What a lawyer will want to know:

• Basic information: The lawyer will want to know your situation and the reason that you decided to consult him or her.
• All relevant information: It is very important to tell the lawyer everything that is related to your dispute, not just the information that supports your side of the story. “Relevant” means that the information tends to prove a matter of fact significant to the case. It is sometimes difficult to know what is relevant and what is not, but the lawyer will help you sort this out.
• The truth: It is important to tell the lawyer the truth so they can advise you properly. What you say to your lawyer remains confidential – your lawyer will not tell the other side what you tell them (there are some very narrow exceptions to this rule). A lawyer cannot act for you if you are planning to testify and not tell the truth.
• Documents: You must also provide all relevant documents to the lawyer. Take a file of documents to your appointment containing such things as letters, court documents, receipts, invoices, and agreements.

It is a good idea to write down the basics of your case and questions you want to ask the lawyer. You should also ask about other ways to resolve your dispute without going to court, like negotiation, mediation, or arbitration. In some cases, it is far more cost-effective to settle the dispute immediately by paying money or transferring property from one party to another.

Review to the Questions to Ask a Lawyer Worksheet so you get a better idea of what to ask a lawyer.

Download the Worksheet

Documents to take to your first meeting with a lawyer:  

• A written summary of the facts in your dispute.
• Important documents relating to your dispute, such as letters, invoices, receipts, photographs, court documents, agreements and contracts.
• Personal contact information, including your personal and business addresses, telephone numbers, email addresses.
• Contact information for potential witnesses.

Some of the following questions may not apply to your situation. Read the worksheet before visiting a lawyer and cross off the questions you do not need to ask.

1. What experience do you (the lawyer) have with similar cases?
2. How would you handle my case?
3. How does the law affect my situation?
4. What are my options?
5. What legal risks am I facing?
6. What documents do I need to support my case?
7. Do I need statements from witnesses?
8. What are my options for resolving the dispute out of court?
9. How can I settle the case?
10. How long will my case take?
11. What is the court likely to order?
12. If I am successful at trial, how can I collect money after the judgment?
13. What types of fee options do you offer? What is your hourly rate? What do you estimate the total cost of my case will be?
14. When will I receive bills from you, and when am I expected to pay?
15. How can I reduce the cost? Can I handle some of the legal work myself?
16. Do you need a retainer right away and how much?
17. How is it best to contact you, and how soon can I expect a reply?
18. What do you expect from me?
19. What can I expect from you?

Notes:

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When you appear in court without a lawyer, the judge will likely ask you if you have obtained a lawyer or if you wish to do so.

If you have not been able to get a lawyer but wish to do so, you may ask the judge to postpone your case (grant an adjournment) so you can obtain a lawyer. Explain to the judge:

• That you wish to hire a lawyer;
• The reason why you have not been able to get a lawyer yet; and
• That you wish to request adjournment of your case until you have a lawyer (this must be a reasonable amount of time and you cannot use this as a tactic to delay the case).

Understand that if you tell the judge you wish to go ahead without legal representation it may be difficult to change your mind after the trial has started or if it means delaying an important hearing.