Access to Justice
The right to a fair trial is a principle of fundamental justice in Canada. If the unrepresented litigant is a lay person, this right to a fair trial might be infringed based on procedural issues alone. Judges in Canada have been attuned to this possibility and provided some common law solutions to assist self-represented litigants. In A(JM) v Winnipeg Child & Family Services, Scott C.J.M. acknowledged that courts should offer some assistance to unrepresented litigants. Furthermore, it was also acknowledged in Dunsmuir v New Brunswick that the exact amount of assistance that will be required will vary from case to case, largely based on what is required for a litigant to understand proceedings. Judges in these circumstances must be careful, however, because it is possible that they may compromise judicial neutrality if they are viewed assisting a litigant too much. This is the Catch 22 with self-represented litigants. It has placed judges in the impossible situation of trying to reconcile competing ideals to maintain the integrity of the legal system. Obviously, it would be ideal to get all of these litigants representation, but this is most often easier said than done.
The Cost of Litigation
According to the National Self-Represented Litigants Project, the most common challenges self-represented litigants reported in legal proceedings are the ability to afford legal representation and the difficulty of understanding legal forms. A two-day civil trial in Canada costs an average of $31,330. appearance. By contrast, Statistics Canada reported that the median household income in 2014 was just $78,870 across the country. Therefore, an average two-day trial with representation costs around 40% of the median Canadians household income for the year. Most potential litigants effectively have to choose between justice and rent. Furthermore, there is some legal authority that has been floating around that suggests litigants may not necessarily be eligible for lost wages when preparing for trial. These factors may have a double effect on litigants by causing those willing to put in the time to research to self-represent and risk losing wages, but it may also cause many people to forego enforcing their legal rights entirely because they view it as not worth the time and money.
The Representation Gap
One of the main problems with self-represented litigants is that many, if not most, fall into what could be called the representation gap...