Canadian Lawyer

LEGAL REPORT/Litigation treatise, a manifesto and a cri de coeur addressing a certain sort of disaffected, maverick litigant [who] has been clogging up Canada's courts with contrived, pseudo-legal arguments and irrational, histrionic demands for a number of years." Boyd goes on to suggest ways lawyers could also help deal with the situation. They include making applications to chief justices for orders appointing case management judges early on in cases where the litigant's claim or defence raises questions of legitimacy, and "carefully scrutinize" the background and motivations of persons seeking approval to appear as a representative or agent — and object if the person is going to exacerbate the situation. And "do not waste your client's money replying to nonsensical pleading or applications in the same voluminous manner as the litigant's material," suggests Boyle. "Consider applying for directions." Reeves says she is happy about the attention Meads has drawn. "There is no cohesive approach for dealing with these guys who clog the system and go back to court repeatedly. It's not as hard on older lawyers like myself who have experience dealing with them. I give one or two shots across the bow, then apply for case management. It's toughest on junior lawyers who bang their heads on the table after coming back from court for the fifth time. The problem in family court is that there is nothing to shut vexatious litigants down." Though the numbers of OPCAs — to use Rooke's newly coined acronym — is unknown, lawyers working on the front lines say the problem is widespread. "I think the fact that the judge even made this ruling suggests how big a problem it is," says Toronto lawyer Omar Ha-Redeye. "This is a hot issue. Family law is in crisis in Canada." According to Ha-Redeye, who recently spoke on a panel about self-represented litigants in family law and cost-sensitivity (notably unbundled services), self-representation is soaring across the country. He says two factors are driving people to self-representation: frustration with the cost and access to the legal system, and a lack of legal information that people can access. "Many of them think self-rep is easy," he says. "But they discover too late that the reality is really quite different." Macfarlane is hearing first-hand about the problems selfrepresented litigants face. Over the past year, she has conducted hour-long interviews with more than 250 of them in Ontario, British Columbia, and Alberta — provinces in which the law foundations are helping to fund her study. Her findings, which she plans to present in March to the chief justices task force and at other meetings with legal system stakeholders, include both ground-breaking data on the number of self-represented litigants, as well as on the profile of people who are going that route before the courts. Notably, Macfarlane has found as many as 80 per cent of family court cases in Canada involve self-represented litigants. "The numbers are absolutely astonishing," she says. "I've had judges writing to me telling me the numbers can't be right. But they are because they are Read Associate Chief Justice John coming from their Rooke's ruling in Meads v. Meads own justice departat canlii.ca/t/fsvjq. ments." Macfarlane says those numbers follow a North Americanwide trend. She notes only one per cent of litigants in family courts in California in 1971 were self-reps. That number jumped to 46 per cent in 1993 and to 77 per cent in 2000. "It's likely over 80 per cent now," she adds. "But it's almost certainly the same here because we've been trending in the same direction." Macfarlane says her study will, for the first time in Canada, put a human face on those fighting their own battles in court. "They are mostly low-income earners who have been lulled into a false sense of confidence that they can do this," she says. "They are not doing it because they want to, but because they have to. And they almost always end up completely overwhelmed and disillusioned." Macfarlane says the vast majority of those litigants are not ideologically driven or have an axe to grind. "They are simply people who can't afford good legal representation," she says. The OPCAs Rooke takes aim at in his ruling, she adds, are "a very particular subset of people with mental health problems. Courts are a magnet for them because they can grandstand." Still, she applauds the ruling for drawing attention to the issue of self-representation as a whole, and hopefully stimulating debate on access to justice and possible solutions to address the issue. "We could provide more resources to help people, loosen the rules on paralegals so they can provide support, and allow lawyers to unbundle legal services, but it's clear that the current system needs to be improved." There's no trade secret to getting results in ip litigation… Equal parts diligence and experience. When you go with Dimock Stratton for ip litigation, you're getting industryleading experience, one of the hardestworking teams around, and a track record that speaks for itself. Dimock Stratton llp experience. results. 20 Queen W. 32nd fl, Toronto | 416.971.7202 | dimock.com www.CANADIAN ntitled-1 1 L a w ye r m a g . c o m Jan uary 2013 47 12-05-22 1:45 PM

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