By: Amna Farooqi*
It is easy to reduce “access to justice” to policyspeak in legal circles. The access to justice crisis represents a chasm in the justice system that renders real people helpless in the face of complex legal battles. This article will focus on dispelling myths about self-represented litigants, and what their struggles mean for the access to justice crisis across Canada.
When we think of self-represented litigants, our scope is often limited to what is portrayed in popular media: “guilty criminals” who cannot find a lawyer willing to take on their case. In reality, 62% of self-represented litigants were involved in civil cases, according to a 2019 intake report. In 2013, approximately two thirds of self-represented litigants were involved in family court cases. The reality of self-represented litigants is at odds with the stereotypes imposed upon them. Self-represented litigants find themselves suspended in justice system limbo: although they cannot afford to pay legal fees, they also do not qualify for legal aid. This gulf in our practice of justice leaves litigants to fend for themselves in proceedings that they are not equipped for.
Understanding that self-represented litigants are, in fact, everyday people that find themselves party to a legal dispute, the question becomes: why do people self-represent? The answer: because they cannot afford a lawyer. 45% of respondents in the 2019 intake reported that their annual income was under $30,000. In Ontario, legal aid eligibility is determined through a “needs test” which takes into account income, expenses, and liabilities of the applicant.However, the practical application of the needs test falls short of its aspirations, as people are still being relegated to representing themselves because they are unable to qualify for legal aid.
According to one intake report, 90% of self-represented litigants reported that the opposing party was represented by counsel, which adds another layer of inequity to the crisis. Access to justice does not refer only to one having their “day in court,” it requires that litigants have access to competent legal counsel – this need is particularly striking for the vast majority self-represented litigants that face opposing parties that are equipped with lawyers. In fact, many self-represented litigants try to glean legal advice from professionals as much as they can afford to. According to a 2019 intake report, 68% of self-represented litigants worked with a lawyer for some duration of their case. At some point, though, lawyer’s fees become unsustainable, and litigants resort to representing themselves. It may seem as though self-represented litigants are comprised only of those that live below the poverty line, but this is yet another misconception. 9% of self-represented litigants reported making over $100,000 in annual income. Still, these litigants were not able to afford representation for the entirety of their case. This fact strikes at the heart of the access to justice crisis: legal fees have the potential to become exorbitantly high, and the requirements for legal aid eligibility are stringent. It leaves litigants in a veritable catch-22 and forces self-representation.
It is important to understand that self-represented litigation is pervasive in all fields of law. The stereotype that self-represented litigants are limited to realms of landlord tenant or criminal matters is a myth, and could be partially responsible for minimizing the true consequences that self-represented litigants have in the administration of justice. In fact, it may be unreasonable to expect participants to have complete trust in the authentic administration of justice when they experience firsthand the inequities of the justice system based on what they can and cannot afford. As law students, we are taught that one of the fundamental objectives of lawyering is to maintain the public’s trust in the administration of justice. How can we, in good faith, encourage people to trust in the administration of justice when we identify these cracks in our system and see people falling through them?
 Tracking the Trends of the Self-Represented Litigant Phenomenon: Data from the National Self-Represented Litigants Project, 2018/2019 at page 8.
 Legal Aid Eligibility and Coverage in Canada. Department of Justice Canada at page 22.
 Supra note 1 at page 11.
*Amna Farooqi is a first-year JD Candidate at the University of Ottawa, where she is the LeBreton-Holmes Memorial Scholar, the Canadian Muslim Network Arar-Mazigh Scholar, and the El-Aggan Scholar. Amna holds an Honours Bachelor of Arts degree with distinction in justice, political philosophy, and law from McMaster University. An aspiring lawyer, Amna is passionate about human rights law, and advocacy for vulnerable communities.