Not all self-represented litigants are created equally. Some are victims of circumstance. Forced to defend or prosecute their own claims because of poverty. Others are vexatious litigants, unable to find a lawyer to bring their meritless claims to court.
Vexatious self-represented litigants tend to behave in similar ways. They bring multiple proceedings when one would do. They appeal and appeal, all the while avoiding having their case heard on its merits. Worst of all, they view the court system and the law as a “convenience to be sought out when it suits one’s whim” (Guan v Dai, 2015 ONSC 7517). This mentality breeds disobedience with court orders.
Although I do not have the statistics at hand, the rise of the Internet has enabled an unprecedented number of self-represented litigants. Access to statutes, case law, commentary at the click of a mouse is a double-edged sword. On one side it is the great equalizer. On the other side, without the counteracting forces that lawyers are subject to – like codes of conduct and reputational concerns, the Internet enables the vexatious self-represented litigant.
In Baradaran v Tarion Corporation, 2015 ONSC 7892, Justice Myers details the correct approach to vexatious self-represented litigants. His approach recognizes the inherent unfairness of matching a lawyer against a self-represented litigant.
Self-represented litigants are entitled to be heard with respect and to be positively assisted by counsel opposite and the judge to ensure that all litigants have a full and fair opportunity to put their cases before the court. Some lament that judges at times appear to bend over backwards to protect self-represented litigants to the point of unfairness to represented parties opposite. It is important to draw a line. All parties, self-represented or not, are entitled to a fair hearing and a fair day in court. Self-represented parties can, at times, require assistance to understand the process and legal rules so as to avail themselves of their entitlement to the fair hearing assured to all litigants. They are entitled to this assistance and both the court and counsel opposite are bound to provide it to ensure a fair hearing. But no party, whether self-represented or not, is entitled to abuse the system or the party opposite. [Emphasis added.]
Judges need to look at the bigger picture and ask “What is really going on here?” And when they see abuse after abuse, they must invoke their discretion to protect the integrity of the justice system. Failing to do so, chips away at the legitimacy of our courts and our laws. “The structural foundation upon which our society is built”. (Guan v Dai, 2015 ONSC 7517)
(In Guan v Dai, the parties are represented by counsel.)