A Sign of the Times

[Guest post by Karen Dyck, Executive Director of the Manitoba Law Foundation. Previously published on Slaw.ca.]

A new Practice Direction from Manitoba’s Court of Queen’s Bench reflects increasing acceptance of the fact that litigants without lawyers are no longer an anomaly in civil litigation. The notice sets out that contested motions and applications involving at least one self-representing litigant must be set for a case management conference before a contested hearing takes place. This is already the norm for contested motions in the Family Division of the Court of Queen’s Bench, regardless whether there is a self-represented party, but is new in the Civil Division.

Other than the procedural change, two specific aspects of the Practice Direction stand out:

1. The rationale for the change in practice is stated as being “To reflect the obligation of a judge to ensure that a self-represented litigant has the opportunity to meaningfully participate in the hearing and has a reasonable opportunity to present his or her case to the best of his or her ability.”
2. In addition to ensuring that the matter is ready to proceed to a contested hearing, the case management judge is specifically tasked “…to explain the process and to otherwise advise the self-represented litigant what may be expected.”

While the obligation on the judge isn’t new, this statement makes clear the importance of ensuring that litigants without lawyers are able to meaningfully participate in the legal action, whether as plaintiffs or respondents, and further that they have the opportunity to present their position and evidence to the best of their individual ability. This acknowledges both their right to be in the courtroom, representing themselves, as well as the fact that each self-representing litigant comes to the courtroom with varying degrees of ability to present their case.

One effect of this Direction will be to ease the burden on all involved. By placing the responsibility upon the case management judge for explaining the process and otherwise advising the self-represented litigant on what to expect, the hearing judge will be supported in balancing “… the sometimes competing imperatives of helping a litigant who is in need of assistance while maintaining impartiality.” (Child and Family Services of Winnipeg v. J.A. et al., 2004 MBCA 184 at para. 32). This also has the effect of making clear that it is not the responsibility of the lawyer opposite a self-representing litigant to explain the process to the opposing party. And finally, it creates a “safe space” for the self-representing litigant to inform themselves on process and ask questions about what is expected of them in a contested hearing.

While adding another step in the process may in some cases increase costs, if used effectively, these conferences may result in fewer requests for adjournment, more efficient contested hearings and more effective advocacy on the part of the self-representing litigant. That seems like a win-win result all around.