Supreme Court of Canada Self-Represented Appellants in 2017

Abstract

Self-Represented Litigants [SRLs] are persons who appear in court and tribunal proceedings without a lawyer. Despite SRLs being the subject of considerable attention as a facet of the “access to justice crisis”, no statistically valid quantitative investigation of a Canadian SRL population exists. Instead, most information that purports to describe Canadian SRLs has been obtained from surveys. This study is a document- and court record-based investigation of litigation activities and characteristics of all SRLs who filed leave to appeal applications in the Supreme Court of Canada [SCC] in 2017. 125 leave to appeal applications were the basis for a quantitative, statistically valid population profile of 122 SRLs and their activities. SRLs are rarely successful at the SCC. While the study population’s applications all completed the leave to appeal process, all but one application were rejected by that gatekeeping process. No procedural obstacle was identified to SRL participation at the SCC. Instead, the SCC extends deadlines, provides fee waivers, and accepts irregular filings. Most applications had only one party on either side. A broad and diverse range of legal dispute types were the substrate for the SRLs’ candidate appeals. Family law subject appeals were rare: 6.4%. Many leave to appeal applications were unsophisticated or problematic documents. Half of the leave to appeal applications did not adequately identify the candidate appeal’s facts and issues. Many applications exhibit problematic litigation characteristics. Two thirds of applications implicated the Canadian Charter of Rights and Freedoms, but very few applications advanced viable claims of that kind. Accurate references to case law and legislation were uncommon. About one in five applications were markedly superior in communicating information, legal arguments, and identifying relevant legal authorities. These more sophisticated applications were also much less likely to make rights-based allegations or complain of misconduct by justice system participants. Male SRLs outnumber female SRLs almost 3:1. SRLs were the party that initiated the dispute underlying three quarters of study applications. Most SRLs focused on their perceived rights, and did not engage Canadian law. Instead, most study SRL leave to appeal applications claimed lower court judges were biased, or engaged in illegal or criminal conduct. Over a third of the study SRLs had filed two or more SCC leave to appeal applications over their lifetime. One filed 19 applications, all unsuccessful. Nearly one in four study SRLs were subject to court access restrictions, an extreme form of litigation management. Problematic litigation activity was associated with repeated SCC appearances. Only a small number of study SRLs self-identified or were identified by the court as having mental health issues, but nearly one quarter of SRLs’ litigation records exhibited an atypical pattern of expanding litigation identified by mental health professionals as a characteristic of querulous paranoia. This investigation developed a profile of the 2017 SCC leave to appeal SRL population and their litigation activity, and provides a model for future parallel investigations. This population is very unlikely to be representative of Canadians SRLs as a whole, but it provides a comparator, and identifies characteristics that are potentially useful to understand what occurs in other Canadian appeal courts.