Category: Access to Justice Page 8 of 18

Access to Justice, Self-Represented Litigants and Court Resources: A Snapshot from Alberta Superior Courts for the Month of May

On June 13, 2016

By: Jennifer Koshan and Drew Yewchuk

PDF Version: Access to Justice, Self-Represented Litigants and Court Resources: A Snapshot from Alberta Superior Courts for the Month of May

Cases commented on: Pintea v Johns, 2016 ABCA 99 (CanLII); Erdmann v Complaints Inquiry Committee, 2016 ABCA 145 (CanLII); JE v Alberta (Workers’ Compensation Board), 2016 ABCA 147 (CanLII); HH v DB, 2016 ABQB 164 (CanLII); Pickett v Walsh, 2016 ABQB 222 (CanLII); McCallum v Edmonton Frame and Suspension (2002) Ltd, 2016 ABQB 271 (CanLII); R v Cullen, 2016 ABQB 272 (CanLII); Alberta v Greter, 2016 ABQB 293 (CanLII); ET v Rocky Mountain Play Therapy Institute Inc, 2016 ABQB 299 (CanLII)

As the Coordinator and Student Assistant for ABlawg, we review all Alberta Court of Queen’s Bench and Court of Appeal decisions each week for their blogworthiness. During the month of May, we noted several cases dealing with issues related to access to justice and the courts’ role in and resources for dealing with self-represented litigants. Of course, resource issues do not only arise in cases involving self-reps. On June 1, 2016, Justice Berger of the Court of Appeal chastised counsel for parties to protracted litigation with the following words:

I would be remiss if I failed to express serious concerns for that which I perceive to be a disregard on the part of counsel for the limited resources available to the judiciary, particularly at a time when the courts are functioning with less than a full complement (Weatherford Canada Partnership v Kautschuk, 2016 ABCA 173 at para 7).

This statement refers to the fact that Alberta is short of both Court of Queen’s Bench and Court of Appeal justices. The need for the federal Minister of Justice to make judicial appointments to fill these vacancies and to create new positions given the increase in Alberta’s population has been commented on by Alberta’s Justice Minister Kathleen Ganley, as well as Chief Justice Neil Wittman of the Court of Queen’s Bench (see here and here). Chief Justice Wittman called the shortage a “crisis” as far back as October 2015, when he stated that the courts “are literally at the breaking point right now.”

Vexatious Proceedings Distinguished from Vexatious Litigants

By Jonnette Watson Hamilton

On June 6, 2016

In Access to Justice, Civil Procedure, Vexatious Litigants

By: Jonnette Watson Hamilton

PDF Version: Vexatious Proceedings Distinguished from Vexatious Litigants

Case commented on: R.O. v D.F., 2016 ABCA 170 (CanLII)

This Court of Appeal decision is useful in drawing a distinction between litigation that is vexatious and a litigant who is vexatious. A vexatious court proceeding may be challenged under various provisions in the Alberta Rules of Court, Alta Reg 124/2010. Typically, the vexatious proceeding is brought to an end and costs are awarded against the person responsible. The scope of the relief is confined to the one particular case. A vexatious litigant order, on the other hand, is made under section 23.1 of the Judicature Act, RSA 2000, c J-2, and typically forbids the person against whom it is made from commencing or continuing any proceedings in any court in Alberta against any person. Declaring someone to be a vexatious litigant is a much broader and more serious matter. The issue in this appeal was whether R.O. was a vexatious litigant, as the Court of Queen’s Bench judge had declared her to be, when all of her allegedly vexatious behaviour was confined to this one case.

Comparing the Views of Alberta Judges and Lawyers with Those in the Rest of Canada on Selected Family Law Issues

By Lorne Bertrand

On April 26, 2016

In Access to Justice, Family

By: Lorne Bertrand

PDF Version: Comparing the Views of Alberta Judges and Lawyers with Those in the Rest of Canada on Selected Family Law Issues

Report Commented On: Canadian Research Institute for Law and the Family, Comparing the Views of Judges and Lawyers Practicing in Alberta and in the Rest of Canada on Selected Issues in Family Law: Parenting, Self-represented Litigants and Mediation (2016)

The Canadian Research Institute for Law and the Family recently released a report that compares the views of Alberta judges and family law lawyers with legal professionals in the rest of Canada on parenting after separation, self-represented litigants, access to justice, and mediation. The report, written by John-Paul Boyd and myself, presents the findings of a survey conducted at the 2014 National Family Law Program in Whistler, B.C., and provides recommendations in several areas including:

the language used in the Divorce Act, RSC 1985, c 3 (2nd Supp), with respect to the care of children;
the provision of unbundled legal services to promote access to justice;
the use of mandatory mediation where at least one party is self-represented;
the provision of limited legal services in family law matters by paralegals; and
the use of standardized questionnaires by lawyers screening for family violence.

The report notes some striking differences between the views and experiences of Alberta practitioners and those from elsewhere in Canada.

The Public Interest Exception to the Normal Costs Rule in Litigation

By Shaun Fluker

On March 7, 2016

In Access to Justice, Costs

By: Shaun Fluker

PDF Version: The Public Interest Exception to the Normal Costs Rule in Litigation

Case Commented On: Gendre v Fort Macleod, 2016 ABQB 111

This judgment by Madam Justice K.D. Nixon touches on the public interest exception to the normal rule in Canadian law that the unsuccessful party in litigation is liable to the successful party for either a portion of or all the successful party’s legal costs (commonly known as ‘costs follow the event’). The substantive matter in this case involved an application by the Mayor of Fort Macleod seeking to have the Court set aside bylaws and resolutions passed by the Council of the Town of Fort Macleod which removed the Mayor’s powers. The Mayor argued the passage of such bylaws and resolutions amounted to an abuse of process by the Council. Justice Nixon dismissed this judicial review application in Gendre v Fort Macleod, 2015 ABQB 623, and the media reported that the Council sought approximately $100,000 in legal costs against the Mayor. One of the arguments put forward by the Mayor in an attempt to shield himself from costs was that his action constituted public interest litigation.

Don’t Think Twice: The Residential Tenancies Dispute Resolution Board’s Power to Correct for Procedural Unfairness

By Jonnette Watson Hamilton

On March 1, 2016

In Access to Justice, Landlord/Tenant

By: Jonnette Watson Hamilton

PDF Version: Don’t Think Twice: The Residential Tenancies Dispute Resolution Board’s Power to Correct for Procedural Unfairness

Case Commented On: Hewitt v Barlow, 2016 ABQB 81 (CanLII)

It may be a good idea to accord the Residential Tenancies Dispute Resolution Board (RTDRS) the power to set aside its own orders and re-hear a dispute when it recognizes that one of its orders is the result of a procedurally unfair process. However, I am not certain that the RTDRS has the power to do so under the current legislation: the Residential Tenancies Act, SA 2004, c R-17.1 (the Act) and the Residential Tenancies Dispute Resolution Service Regulation, Alta Reg 98/2006 (the Regulation). I am almost certain that the RTDRS does not have the power to do so for the reasons set out by Master in Chambers, A. R. Robertson, in Hewitt v Barlow. The best remedy for the currently intolerable position that too many tenants have been put in by procedurally unfair RTDRS orders would be amendments to the Regulation. Helpfully, that Regulation expires on April 30, 2016. Although section 35 of the Regulation states that the purpose for its expiration is to ensure that it is reviewed for relevancy and necessity, rather than for fairness, its expiration is still an opportunity. Given the number of recent cases that have come before various Masters of the Court of Queen’s Bench requiring judicial review of RTDRS orders on procedural unfairness grounds, it is to be hoped that the legislature takes this review seriously and remedies the demonstrated flaws in the Regulation in order to ensure better access to justice for tenants and greater certainty about the powers of the RTDRS for all.