'Stupid’ domestic case shouldn't scare off self-represented litigants

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A caustic judgment and $35,000 penalty against a self-represented litigant may seem daunting, but it shouldn’t stand as a deterrent to other “self-reps,” says one legal expert.

Angela De Cruz made headlines this week after being raked over the coals by an Ontario Superior Court judge for her bizarre courtroom behaviour, including claims of human trafficking and an “immaculate conception.”

The decision in a home-ownership dispute against De Cruz and her ex-husband also included an unusual ruling that ordered De Cruz, a self-represented litigant, to pay more than $35,000 in costs.

Some observers raised concerns that such an award could serve to scare off self-represented litigants, but University of Windsor law professor Julie Macfarlane says otherwise.

Macfarlane dismisses this case as “unbelievably stupid,” one so bizarre that it’s not applicable to the average self-represented litigant.

She says De Cruz isn’t being punished for being a self-rep, but rather for violating a basic principle of litigation.

“The rules apply to lawyers and self-represented people alike: anybody who needlessly protracts or extends litigation or drives up costs strategically should be subject to some penalty in terms of costs,” she explains.

And this was a protracted case. Expected to last one or two days, it stretched into a nine-day circus.

Judge Toni Skarica’s own ruling explains the costs decision in impatient and unequivocal terms:

“Self-represented litigants whose aim it is to protract court proceedings to force the other side to expend significant resources on legal costs due to scurrilous allegations that are without any evidentiary foundation and are entirely irrelevant to the issue before the Court will meet the hammer of a cost’s award,” he wrote.

Skarica also wrote that “courts bend over backwards” to accommodate self-reps, but that doesn’t mean they should tolerate wanton recklessness and disregard for acceptable legal procedure.

Self-representation is on the rise in Canada, and it can be a minefield.

Macfarlane, who created the National Self-Represented Litigants Project at Windsor, has interviewed hundreds of self-reps about their experiences. She says while most don’t get as rough a ride as De Cruz, the justice system could be far more welcoming.

“There is a pervasive feeling that self-represented litigants are just there to make people’s lives more difficult,” says Macfarlane, but adds: “they’re not necessarily doing that because they woke up this morning and thought, ‘I feel like being Perry Mason and going down to the courthouse and having a spot of bother.’ They’re doing it because they can’t afford a lawyer.”

That creates difficulties for judges, she says, since it means that many self-represented clients do end up protracting cases and driving up costs, but only because they’re making mistakes and having trouble navigating a complex legal system. 

“It’s genuinely difficult for people who are versed in the legal system to recognize when (self-reps) are making authentic mistakes and there is sometimes a bit a of knee-jerk reaction,” she explains.

Macfarlane’s research has suggested ways in which the justice system can help self-reps, but there’s still much to be done.

“I don’t want to encourage anyone to self-represent,” she says. “What we have to do is find ways to make these folks more functional until we figure out ways to provide them with affordable legal assistance.”

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