Scanned, recopied or Internet copy, if there are errors, please e-mail me with corrections: Opening comments: More at the end. Toronto Star - Mar 07, 2007 - By Tracey Tyler, LEGAL AFFAIRS REPORTER & Bernard Weil Taking your own counsel Judges, lawyers offer proposals to help provide a fairer system Some ideas from judges and lawyers for reducing the number of people who wind up in court without a lawyer and helping those who appear before them: Ending pretrial hearings, known as examinations for discovery, that tend to reduce the chance a person represents themselves because they can no longer afford a lawyer. The federal government has an arbitration system in place for non-union employees of federally regulated industries, such as airlines and trucking companies. But these hearings can still be costly. Judges could actively question witnesses, suggest possible legal arguments and even retain experts, says Dalhousie University Prof. Rollie Thompson. In cases where the opposing party has a lawyer, it may be wise to give unrepresented litigants the choice of proceeding under conventional adversarial rules, Thompson said. Ordinary citizens, unable to secure legal aid or pay punitive legal bills, fight a `David and Goliath' battle as they argue their own cases in court. Something is missing these days from Canadian courtrooms. It's called lawyers. In their place are ordinary people – single parents, contractors, stockbrokers and teachers – struggling to present their cases without experience or a law degree. With a routine civil trial estimated to cost $60,738, and legal aid programs hard-pressed to serve even the poor, judges reckon that anywhere between 40 and 85 per cent of those appearing before them do so without lawyers. Canada's Chief Justice Beverley McLachlin says the numbers are becoming "alarming." "Some don't want to spend the money on a lawyer, but the reality, I think, is most are not able to pay," says Justice Barbara Hamilton of the Manitoba Court of Appeal. Kathrine Farris is one of them. Four years ago, Farris was fired as a commercial real estate agent, but with the help of Mary Cornish, a human rights and employment lawyer in Toronto, she filed a $7.5 million wrongful dismissal and sexual harassment lawsuit against the Staubach Company and two Canadian subsidiaries. They are all part of a real estate empire founded by former Dallas Cowboys quarterback Roger Staubach. The defendants deny the allegations and say Farris received reasonable compensation in lieu of notice. Since turning to the justice system in 2003, Farris has paid legal bills of $197,443.58. But she still owes another $219,658.65 in fees, disbursements and GST. A trial could still be years away. Farris began representing herself early last year and is now considering bankruptcy. "I feel like I'm strapped to a torture table with no end in sight," she says. Going without a lawyer creates tremendous difficulties not only for individuals but also for the entire justice system, says Hamilton, speaking about the problem at a recent legal conference. Often, very little time is spent on the issues in a case, because judges are too busy explaining procedure to "unrepresented litigants," who may have never ventured into a courtroom. "While many are respectful, some are disruptive. Some are well-educated, others are barely literate," Hamilton said. "Everyone is just trying to get through the day." In a libel case in Saskatchewan, a man who couldn't figure out how to prepare a statement of defence simply bundled up newspaper clippings, printouts from the Internet and copies of unrelated court decisions and sent them to the judge, describing them in an affidavit as his "potpourri documents." The judge, William Gerein, said the affidavit "reads like a bad speech" filled with "disjointed verbiage" and is "only marginally consistent with what the law requires." Justice Robert Armstrong of the Ontario Court of Appeal was left shaking his head after poring over a court brief written by John Susin. He's a contractor who is representing himself in a civil case involving a dredging job on Lake St. Clair. In a 2005 ruling, Armstrong called the brief "repetitious and confusing." "I do not say this in order to `scold' Mr. Susin, as I appreciate that he is not a lawyer, but merely to indicate that I have found it extremely difficult to ascertain exactly what it is that Mr. Susin is attempting to submit on a number of points." In spring 2006, Farris squared off against Staubach Company lawyers in a tiny University Ave. courtroom. Tall with cascading curls and an authoritative black suit, she cut an impressive figure. On the bench was Thomas Hawkins, a case-management master whose job is sorting out pretrial procedural wrangles in the Superior Court of Justice. Farris begged him to end the pretrial hearings where she was being cross-examined by the companies' lawyers. She has now attended 29 days of hearings and answered 10,474 questions. Farris asked Hawkins to order the company's lawyers to submit their remaining questions in writing and allow her to answer them at home. That's a "drastic step," he told her, adding that she would have to make a formal request with a "cross-motion." "I don't know how to cross-motion," she lamented. The defendants asked Hawkins to order Farris to turn over her full medical records. She had given them only an edited version, said Arie Gaertner, a lawyer representing Staubach Ontario Inc. The thought of Gaertner getting his hands on intimate details plunged Farris into a panic. "I want him on as tight a leash as possible when it comes to (keeping) my medical records (confidential)," she said. Hawkins told Farris that, since she is claiming damages for mental suffering as part of her lawsuit, the defendants' request for complete medical records isn't unusual. Farris knows that, by suing, she set the stage for "a David and Goliath battle." But crawling away in the face of what she considered unjust treatment would have "poisoned" her approach to life. "I come from a family where, if you have a problem, you confront it," she says. One factor that led Farris to begin representing herself was that Cornish doesn't take cases on a contingency fee, where lawyers get no money upfront, but a percentage of any settlement or damages awarded. Contingency fees are seen as perfectly suited to wrongful dismissal cases. But not all lawyers accept contingency cases because they assume the risk of funding the litigation. If they lose, they don't get paid. "The agreement Kathrine and I had from the beginning was based on her paying as we went along," Cornish said. Helping drive up costs has been the companies' vigorous defence – including an unsuccessful bid to prevent Staubach from testifying and an attempt to have her lawsuit put on hold until the Ontario Human Rights Commission rules on a complaint she filed. The case has become so costly that even Gaertner has joked about adding a "Kathrine Farris wing" to his house. After Farris began acting as her own lawyer, she ventured into the Great Library at Osgoode Hall, home to Canada's largest private collection of legal books and documents – about 150,000, which stretch from floor to ceiling. Overwhelmed, she went home feeling depressed. A year ago, her friends held a fundraiser at a Toronto restaurant and raised enough to cover some of her legal bill. But even representing herself, she faces potentially enormous expenses. If her case goes to trial, Farris needs transcripts from the examinations for discovery, which – at up to $4.90 a page – could cost $36,000. Farris is now self-employed as a commercial real estate consultant, but her foray into the legal world has taken over much of her life. She often wakes up in "a cold sweat." "I still believe my outcome will be positive when I get to court," she says, trying to stay optimistic. "The problem is, I can't get there." part of an ongoing series on the law Home Page - Main Table of Contents - Back up a page - Back to Top [COMMENTS BY DON B. - ] |
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