Court Limits Leniency for Self-Represented Litigants

By Sarah Levine

In a world where the costs of hiring legal representation continue to increase, the presence of individuals representing themselves in legal proceedings, otherwise known as self-represented litigants, shows no signs of slowing down. Parties engaged in legal proceedings against a self-represented litigant are likely to face a whole host of challenges that naturally arise from an individual with no legal background trying to navigate the legal and procedural complexities of litigation. As Officers of the Court, lawyers have a duty to uphold and advance the administration of justice, but when litigating a claim opposite a self-represented litigant who does not abide by the Rules of Court (“Rules”) or other legislation or procedural norms and expectations, how much are legal practitioners and the courts expected to accommodate, and where does the buck stop?

The Alberta Court of Appeal has provided helpful guidance on these parameters in its recently released decision, Blomer v Workers Compensation Board, 2020 ABCA 334 [Blomer] where it upheld the trial court’s decision that fatal procedural missteps made by the self-represented litigant could not be cured by the Court.

Ms. Blomer, a self-represented litigant, objected to two decisions rendered by the WCB Appeals Commission. In order to appeal decisions of the Appeals Commission, the Workers’ Compensation Act requires that an appellant must file and serve on the respondents an originating application for judicial review within six months of the date of the decision to be appealed. Ms. Blomer failed to do so, and instead, she filed a statement of claim against WCB, wherein she announced her decision to appeal the first decision. She filed an Amended Statement of Claim, close to twenty-four months after the expiration of the six-month deadline, announcing her intention to appeal the second decision. Ms. Blomer then filed an Amended Amended Statement of Claim which removed any references to the two Appeals Commission decisions. After all this, Ms. Blomer then brought an application under Rules 1.4 and 1.5 of the Rules asking the motions court to convert the Amended Amended Statements of Claim filed to an originating application for judicial review and appeal of a decision of the Appeals Commission for the Workers’ Compensation Board”. Ms. Blomer’s application was rejected and she appealed.

The Court of Appeal was unanimous in rejecting Ms. Blomer’s appeal. They found that Rule 1.5 of the Rules did not allow the lower court to overlook Ms. Blomer’s fatal procedural missteps.

Ms. Blomer was represented at the appeal, and her counsel urged the Court to take Ms. Blomer’s self-represented status into account. It is a frustrating reality for many lawyers who find themselves playing on an uneven playing field when appearing opposite self-represented litigants, who are often afforded considerable leniency by the Courts when it comes to adhering to deadlines or other requirements of the Rules or relevant legislation. However, in Blomer, the Court of Appeal definitively proclaimed that “there are not separate statutory regimes for persons who are represented by counsel and persons who are not. The Canadian Judicial Council has proclaimed that “[s]elf-represented persons are expected to familiarize themselves with relevant legal practices and procedures pertaining to their case”.

There are many resources made available by various organizations in the province for individuals who represent themselves in legal proceedings, such as the Alberta Civil Liberties Research Centre’s “Resources to Navigate the Civil Court System” or the Government of Alberta’s publication for self-represented litigants, to name but a few. While a helpful place to start, these resource guides can only do so much, and cannot substitute for the expertise and experience of legal counsel. Ultimately, given the complexities of the law and legal proceedings, self-represented parties cannot possibly learn all there is to know to litigate their case without legal education and training, and so procedural missteps are bound to occur. While the courts, in their discretion, may afford some leniency to self-represented parties to correct these errors, the commentary in Blomer makes it clear that there are limits to what the courts can cure.

In declaring that there are not “two sets of court rules” for parties who are represented by counsel and self-represented litigants, the Court of Appeal has sent a strong message that the Rules and other legislation apply to all parties equally, and that there are limits to the flexibility that will be afforded to self-represented litigants by the courts. It is to the benefit of all involved— the parties, counsel, and the courts — that the legal and procedural requirements of proceedings are adhered to and respected, so that the focus can be on the resolution of the dispute in the most expedient and efficient way possible.

McLennan Ross will continue to monitor the impact of Blomer and any further developments in the law with respect to self-represented litigants with interest.