Summary Judgment: The Achilles' Heel of the Self-Represented Litigant

When faced with a lawsuit brought by a self-represented plaintiff, a very common legal strategy by defence counsel is to bring a motion for summary judgment. A new analysis by Loom Analytics shows that in the Ontario Superior Court of Justice, self-represented plaintiffs lost 85% of summary judgments in civil cases between 2014 and 2015. With self-representation on the rise, access to justice advocates are becoming concerned about negative outcomes for people trying to navigate a complex legal system on their own.

In December 2015, CBC’s Diane Grant discussed the pitfalls of being a self-represented litigant, noting that summary judgments against individuals not represented by counsel have increased by 800% over the last 10 years Canada-wide.

One factor in this increase is likely the new summary judgment rules that provinces like Ontario and Alberta have adopted to address an increasingly overburdened legal system. The second factor is that self-representation has become more common overall, most likely due to the high cost of legal services. Summary judgments allow for the rapid resolution of legal disputes without lengthy and expensive trials. However, success in summary judgment motions is heavily correlated with representation by counsel, given that these motions require a significant amount of legal procedural knowledge. An alternative strategy used to quickly conclude lawsuits brought by self-represented plaintiffs is bringing a motion to strike the proceeding. Motions to strike often rely on technical errors made by plaintiffs unfamiliar with administrative obligations such as deadlines or submission requirements.

One of the issues in evaluating the extent of negative outcomes for self-represented litigants is the difficulty of finding reliable statistics. Grant writes, “There is no consistently reported data on self-represented litigants in Canada's courts, although some provinces have started keeping numbers for individual court appearances.”

In an attempt to address the lack of available data, Loom Analytics has been working to track outcomes for self-represented litigants. Two years of Ontario Superior Court data analyzed by Loom Analytics reflects the stark outcomes that self-represented litigants face when responding to Summary Judgment Motions and Motions to Strike in civil cases. The statistics below reflect civil decisions in the Ontario Superior Court of Justice between 2014 and 2015.(1)

 

Julie Macfarlane, a University of Windsor law professor and the founder of the National Self-Represented Litigants Project, states in the CBC article quoted above "Self-represented litigants are powerless, but if we are going to respond to their enormous feeling of frustration, we need to start sharing the power, we need to start thinking about ways that judges and lawyers will do things differently."

The first step in addressing difficulties faced by self-represented litigants is evaluating the extent of the problem. On an ongoing basis, Loom Analytics will continue to track outcomes for self-represented litigants in courts throughout Canada in an effort to see whether these patterns hold true across the board.

1 Data only encompasses decisions publicly available on CanLII. Decisions that are subject to publication bans or have not been made available are not included in this dataset.
2 Only provides Win/Loss comparison numbers, not all possible outcomes. Reports with all possible outcomes are available at www.loomanalytics.com