Rights and Responsibilities of Self-Represented Litigants

You are a "self-represented litigant" if you are involved in a court proceeding and are not represented by a lawyer. There is no rule that requires you to have a lawyer to represent you in court. Although court can be complicated and confusing at times, you have the right to represent yourself.

This information is about your rights and your responsibilities as a self-represented litigant involved in a civil court proceeding in Canada, and what you should expect from the judges, court staff and lawyers you will meet along the way.

Lawyers and judges

Dealing with lawyers

You should expect to he treated with respect and courtesy by the other party's lawyer

All Canadian lawyers are members of their province’s or territory’s law society. Each law society has a written code of conduct that describes the minimum standards of behaviour expected of their members. In general, these codes of conduct require lawyers to treat opposing parties who are not represented by counsel politely and in the same courteous manner as they would treat a fellow lawyer.

Of course, litigation can be difficult and emotional at times, and you must remember that the lawyer’s job is to represent his or her client, not you, and to advocate for his or her client’s interests, not your interests. Don’t mistake a lawyer’s position on behalf of his or her client as rudeness or incivility.

You should expect to have your emails, letters and telephone calls to the other party’s lawyer returned reasonably promptly

The law societies’ codes of conduct require lawyers to respond to communications reasonably promptly. This doesn’t mean right away or even the same day, but in general you should expect the lawyer to reply to your letter, email or telephone call within two or three weeks, and sooner if the issue is urgent.

It is possible that a lawyer may insist on communicating with you only in writing. Lawyers usually want to restrict communication like this because they want to keep a written record of everything that is said and to make sure that there are no misunderstandings.

You should not expect the lawyer to answer legal questions or give you legal advice. The lawyer is the lawyer for the other party, and law society rules prevent the lawyer from giving you legal advice. You should expect that any legal information the lawyer provides to you will be factual, correct and unbiased.

You should expect the lawyer to keep his or her word

The law societies’ codes of conduct require lawyers to act in good faith and to do the things they have told you or the court they would do. Although circumstances may change and it may become impossible or inappropriate for the lawyer to carry out a promise, the requirement to act in good faith means that the lawyer cannot promise to do something knowing that it can’t be done.

Lawyers may also make special promises called undertakings. A lawyer who gives or accepts an undertaking is required to fulfill that undertaking. The law societies take lawyers’ breaches of undertakings very seriously.

What happens if the lawyer doesn’t do what he or she is supposed to do?

Law societies say who can and cannot work as a lawyer and have the power to discipline their members. You have the right to complain to the lawyer’s law society if you believe that the lawyer has behaved improperly. You do not need a lawyer to make a complaint and there are no fees charged to make a complaint.

Dealing with judges

You should expect the judge to treat you with respect and courtesy

The job of the judge is to manage the steps in your court proceeding fairly and to make fair decisions when decisions are required. Fairness means, among other things, that the judge must listen to you carefully and must not treat you substantially differently than the judge treats the other party or the other lawyer.

Because the judge must also be fair to the other party and consider the needs of other people’s court proceedings, the judge may have to limit the time you have or ask you questions that help you get to the legal issues involved in your case. Don’t mistake the judge’s wish to help you or the other party, or to get through the other cases set for the same day, as rudeness or incivility.

You should expect the judge to give you basic information about court procedures when you need it

Fairness also means that the judge should give you information about court procedures so that you understand the rules you must follow and the steps in your court proceeding. Although the judge cannot give you legal advice or tell you how to manage your case, the judge will usually give you basic information about court procedures to that you can present your case as best you can.

Depending on the circumstances and the nature of your case, the judge may:

• explain court processes and procedures;
• ask whether you understand the court’s processes and procedures;
• refer you to organizations that may be able to help you prepare your case; and,
• refer you to organizations that may be able to provide you with legal representation for your case.

You must not count on only the judge to give you information about court procedures as you prepare your case. You have an obligation to learn the rules of court and court procedures that apply to you and your court proceeding, and the judge cannot give you any assistance beyond basic information about court procedures.

You should expect the judge to follow the rules of court and the law

The rules of court govern every step of your court proceeding, and the judge must manage your court proceeding as the rules require. The rules of court also give the judge some flexibility to adapt the rules to special situations and to do things a bit differently than the rules normally require if it would be fair to everyone to do so.

The judge must also manage hearings and trials as the law requires. This includes following the rules of evidence and any legislation that is relevant to your court proceeding. You have an obligation to learn the rules of evidence and any legislation that applies to you and your court proceeding.

You should expect the judge to give you a fair hearing

The judge must hear your case, your evidence and all that you and the other lawyer or the other party have to say without bias and without favouring either you or the other party. Although the judge may decide to give you some leeway in how you follow the rules of court and court procedures, the judge must apply the law equally to you and to the other party, whether the other party has a lawyer or not.

Depending on the circumstances and the nature of your case, the judge may:

1. provide you with information about the law and the rules of evidence;
2. modify the traditional order of court processes or hearing evidence; and,
3. question witnesses.

Because the judge must also be fair to the other party, to the witnesses who are being asked to give evidence and to the needs of other people’s court proceedings, the judge may have to limit the time you have to present your evidence or to explain why you want the result you are hoping to get. Don’t mistake the judge’s need to manage your hearing as efficiently as possible as unfairness.

What happens if the judge doesn’t do what he or she is supposed to do?

Judges of the provincial courts are governed by their province’s Chief Judge. Judges of the superior courts (Courts of Appeal, Supreme Courts and Courts of Queen’s Bench) are governed by the Canadian Judicial Council. Both the Chief Judges and the Canadian Judicial Council have expectations of how judges will conduct themselves and court proceedings.

You have the right to complain to the provincial court’s Chief Judge or to the Canadian Judicial Council if you believe that a judge involved in your case has behaved improperly. You do not need a lawyer to make a complaint and there are no fees charged to make a complaint.

However, it is important to know that you do not have the right to complain to the Chief Judge or to the Canadian Judicial Council about the result of a hearing or trial. If you are unhappy with the result of a hearing or trial, you will usually be able to appeal the decision to another court or take some other step to challenge or try to change the result.

Court Staff

Dealing with court staff

You should expect to have your business processed accurately and reasonably quickly

The people who work in the courthouse are employees of their province’s or territory’s government. Their jobs are to process new court proceedings, applications and documents coming into the courthouse, manage the files for each court proceeding and help the people coming in to the courthouse to do business. The court staff should treat you politely and process your business as quickly as they can in the circumstances.

Most courthouses are very busy. As a result, there are often lineups to speak to the court staff and there may be delays in processing your business. These lineups and delays are generally beyond the control of the court staff. This can be irritating at times as no one likes having to wait, but try to avoid taking out your frustration on the staff.

You should expect court staff to give you accurate information about court processes

The court staff should tell you about the steps you must take to complete court processes like beginning a court proceeding, making an application and looking at a court file, and the information they give you should be accurate.

In general, court staff can:

1. refer you to sources of information about the law, the rules of court, court forms and court processes;
2. briefly explain and answer questions about court processes;
3. tell you what court forms you may need to file;
4. provide you with blank court forms or tell you where you can find them;
5. check your paperwork and court forms for completeness;
6. tell you how to take your case to a hearing or trial before a judge; and,
7. perhaps estimate when your court proceeding will get to a hearing or trial.

However, the court staff cannot answer legal questions or give you legal advice. Court staff are not lawyers and cannot answer questions about the law or give legal advice. This can be very difficult at times, but only lawyers can give legal advice.

How Court Staff Cannot Help

Court staff members are responsible for managing the business of the courts and assisting people involved in court proceedings. They do not work for the judges of the court, they cannot make legal decisions about your case, and they do not have the authority of a judicial officer. In general, court staff cannot:

1. give you legal advice;
2. tell you exactly how to complete court forms or what orders to ask for;
3. check your paperwork and court forms for accuracy;
4. tell you what to say in court;
5. predict the outcome of your court proceeding;
6. interpret or enforce a court order;
7. change a court order; or,
8. help you speak directly to a judge, except at the hearing or trial of your case.

About this post

This piece by the founding author of this Wikibook, John-Paul Boyd, first appeared on the Canadian legal news website SLAW in August 2015. It has been reproduced here at the request of the BC Provincial Court to help guide and inform self-represented litigants.