Category Archives: Access to Justice

Supporting the Unrepresented: Providing Trial Information to Self-Represented Litigants

By: Alena Storton

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Case Commented On: R v Hamiane, 2016 ABQB 409 (CanLII)

Recent appeals by self-represented litigants (SRL) often focus on the extent of a trial judge’s duty to assist the self-represented litigant. Trial judges are expected to assist SRLs throughout a trial, but the scope of assistance is left to their discretion (R v Hamiane, 2016 ABQB 409 (CanLII); Cold Lake First Nations v Alberta (Minister of Tourism, Parks & Recreation, 2012 ABCA 36 (CanLII); Malton v Attia, 2016 ABCA 130 (CanLII); for earlier posts discussing Malton v Attia see here and here). From the appeals, however, it is clear that SRLs do not feel sufficiently supported or informed to meaningfully participate in a trial. To remedy this issue, trial judges should consider altering the way in which they approach assisting SRLs in the trial process. Judges already explain procedural steps during a trial, as seen in Hamiane. By providing that same assistance at the outset of a trial in accordance with an established set of guidelines, however, trial judges could streamline the process and ensure that all SRLs receive consistent information sufficient to allow them to meaningfully and fully participate in a trial. Continue reading →

Costs to the Respondent: Discouraging Habeas Corpus Applications

By: Amy Matychuk

PDF Version: Costs to the Respondent: Discouraging Habeas Corpus Applications

Case Commented On: Voisey v Canada (Attorney General), 2016 ABQB 316 (CanLII)

In Voisey v Canada (Attorney General), 2016 ABQB 316, Justice Crighton of the Alberta Court of Queen’s Bench rejected an application for habeas corpus and awarded $1000 in costs to the respondent. Mr. Voisey, a federal prison inmate, tested positive for drug use and was subsequently involuntarily transferred from a minimum to a medium security prison. He challenged the transfer based on several grounds, alleging it violated sections 1, 7, 12 and 15 of the Charter (at para 10), it was unreasonable because he was not violent, it was based on unproven suspicion, and he should have received the least restrictive measures possible (at para 20). The court found that all his claims were meritless, though it did acknowledge that a few of them met the minimum threshold of being “legitimate grounds” for claiming his reclassification was arbitrary. The court concluded, following Justice Shelley in Rain v Canada (Parole Board), 2015 ABQB 747 that the respondent “incurred significant expenditure for no valid purpose. That makes this a case where a substantial cost award is justified.” (at para 34) It awarded $1000 in costs against Mr. Voisey, to be paid in $5 increments out of his biweekly paycheques of $15, and the remainder to be payable immediately upon his release.

This case raises questions about the fairness and effectiveness of awarding costs against self-represented inmates on unsuccessful habeas corpus applications. Continue reading →

Access to Justice in Criminal Law

By: Alice Woolley

PDF Version: Access to Justice in Criminal Law

Case Commented On: R. v Moodie, 2016 ONSC 3469 (CanLII)

The Charter of Rights and Freedoms guarantees everyone the right to retain and instruct counsel on arrest or detention. What do we mean by that? Specifically, do we mean it? Do we mean it for people other than the relatively affluent few?

Canadian governments claim that we do. The vision of Legal Aid Alberta states that it aims for “An Alberta where everyone can access justice and achieve fair and lasting resolutions to their legal issues.” Legal Aid Ontario’s website says that it “provides legal assistance for low-income people”.

Justice Ian Nordheimer isn’t buying it. In a stinging judgment issued on May 26 in R. v. Moodie 2016 ONSC 3469, he stayed charges against Tyrell Moodie pending the provision of state-funded counsel. The charges faced by Mr. Moodie were serious and raised complex legal issues. Justice Nordheimer described the Ontario legal aid guidelines as having no “reasonable relationship to what constitutes poverty in this country” (para 6). Continue reading →

“What Were They Thinking?” Condominiums, Oppressive Conduct and Human Rights

By: Jennifer Koshan

PDF Version: “What Were They Thinking?” Condominiums, Oppressive Conduct and Human Rights

Case commented on: Condominium Corporation No 072 9313 (Trails of Mill Creek) v Schultz, 2016 ABQB 338 (CanLII)

I have commented a couple of times previously on the application of human rights legislation to condominiums (see here and here). In Condominium Corporation No 052 0580 v Alberta (Human Rights Commission), 2016 ABQB 183 (CanLII), Justice Robert Graesser of the Alberta Court Queen’s Bench held that the Alberta Human Rights Act, RSA 2000, c A-25.5 (AHRA), does apply to the relationship between condominium owners and their condominium corporations. There is, however, a caveat. Section 4 of the AHRA protects against discrimination in the context of goods, services and facilities customarily available to the public, but does not list “age” as a protected ground. This means that age discrimination complaints cannot be brought against condominium boards (nor against other service providers or landlords; see section 5 of the AHRA, which excludes age as a protected ground in tenancy relationships). In the condominium context, an alternative remedy exists – section 67 of the Condominium Property Act, RSA 2000, c C-22 (CPA), allows courts to remedy “improper conduct” on the part of condominium corporations, including that which is “oppressive or unfairly prejudicial to or that unfairly disregards the interests of an interested party or a purchaser or a prospective purchaser of a unit” (CPA section 67(1)(a)(v)). The application of this section was at issue in the recent case of Condominium Corporation No 072 9313 (Trails of Mill Creek) v Schultz, 2016 ABQB 338 (CanLII). Continue reading →

Ordinary Self-Represented Litigant or Organized Pseudolegal Commercial Argument Litigant?

By: Jonnette Watson Hamilton

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Case commented on: Alberta v Greter, 2016 ABQB 293 (CanLII)

The September 2012 decision of Meads v Meads, 2012 ABQB 571, established a continuum of litigants, ranging from very commonly encountered self-represented litigants, to infrequently encountered vexatious litigants, through to the highly unusual sub-set of vexatious litigants that Associate Chief Justice J.D. Rooke labelled “organized pseudo-legal commercial argument” or OPCA litigants. For a number of reasons, it can sometimes be easy to conflate these categories. Vexatious and OPCA litigants are almost always also self-represented. And a few of the OPCA concepts and strategies that Justice Rooke described in Meads might the part of the ordinary self-represented litigant’s way of coping with unfamiliar legal processes, documents and jargon. In addition, the rising tide of self-represented litigants can be overwhelming for judges, trying their tolerance and patience. All of this has been documented in the research reports of the National Self-Represented Litigants Project (NSRLP). But whatever the reasons, conflating these categories is almost always detrimental to the ordinary individual who represents him- or herself in court simply because they have no choice. Although there are not enough facts set out in the judgment of the Master in Chambers, Sandra Schulz, to be sure, I wonder if Angela Greter, the defendant in Alberta v Greter, is simply an ordinary self-represented litigant and not the OPCA litigant questioning the authority and legitimacy of the courts that Master portrayed her to be. Continue reading →