Author: Fatema Tokhy

One of the toughest questions for some individuals is whether they should hire a lawyer or advocate on their own. Reasons cited for opting to self-represent include unable to afford the legal fees of a lawyer, dissatisfaction with a former/current counsel and/or inaccessibility. Whatever the justification, how does the Court treat self-represented litigants (“SRL”)? Are they crowned as martyrs or do they attract the wrath of the Judges?

According to the National Self-Represented Litigants Project (“NSRLP”), 40% of individuals who appeared in provincial family court and at least 30% of litigants in civil court were self-represented.[1] Further, the greatest majority of SRL (40%) have an income lower than $30,000.[2] Although a deep analysis of SRL is far beyond the scope of this Blawg – SRL indeed face an uphill battle dealing with a system that is archaic and poorly designed to understand the needs and nuances of this particular group. In fact,

[a] majority of lawyers report that in their experience, if the other side is self-represented, settlement is less likely (Ontario: 54%; Alberta: 46%) or much less likely (Ontario: 24%; Alberta: 43%). Similarly a majority of judges reported that if one side is self-represented, settlement is less likely (54%) or much less likely (15%) than if both litigants have a lawyer. Judges also report that if one (90%) or both sides (86%) are self-represented, the length of time to resolve or manage the case significantly increases[3]

The experience has been so negative to SRL that it has been coined, “post traumatic court syndrome.” Clearly for these individuals navigating these waters is a direct course to the perilous rocky shores of the legal system.

In recognition of these blatant inequities, British Columbia has set up Justice Access Centres for both family and civil law that allow SRL to access resources, publications, reading materials, printing, computers to do legal research and available staff to provide information. In Ontario there is a comparable measure in family law such as the Mandatory Information Program and on-site Duty Counsel who can provide summary assistance for SRL on the day of a court appearance.[4] However, for civil matters it is a different beast. A look on the Ontario Courts page only offers reading material - arguably the bare minimum – to assist SRL. While the blind fold on justice symbolizes impartiality, it also represents the system’s blindness to its shortfalls. There is arguably a paradox here: in upholding impartiality, it is partial to privilege where represented litigants who have a deeper pocket have access to the fruits of justice.

Fortunately for some civil proceedings in Ontario, lawyers are able to represent clients with a contingency fee arrangement (“CFA”) where the client is not charged a legal fee unless the client is successful in the legal action. Typically, the legal FEE that will be charged upon successful resolution of the case will be based on a percentage of the damages ordered at trial or agreed to on settlement of claim. The benefit of this arrangement bridges the gap and allows individuals who cannot afford counsel to commence a lawsuit for the injuries they sustained. If the client does not recovery money in the legal action, the client is not obligated to pay for the legal services provided. This arrangement provides a person access to the justice system despite their economic background.

A few additional comments on CFAs. They are heavily regulated by the Law Society of Ontario and legislation namely Reg 563/20 Contingency Fee Agreements under the Solicitors Act, R.S.O 1990, c. S. 15. CFAs are not permitted in family and criminal law due to public policy concerns. There are specific requirements that a lawyer must abide by. While a lawyer can fix the percentage at any rate, generally the range is from 30% to 40% of the amount recovered for damages and costs. Broadly speaking, a lawyer is prohibited from recovering more in legal fees than the amount the victim recovers under an award or settlement. However in the event that the matter proceeds to trial and the Court has awarded costs payable by the unsuccessful party, the lawyer may choose to accept costs in payment of their legal fees instead of charging a percentage of the recovery. In this circumstance, the lawyer’s fees may exceed the client’s recovery.

At Bonn Law we operate on a contingency fee for most civil matters. We invite you to contact our firm to discuss the merits of your case. For more information, please visit our website at https://www.bonnlaw.ca