Almost all of the landlords and tenants who appear before us are unrepresented. Some of the landlords have appeared before us in the past, but most of our litigants are litigation rookies.
Dealing with unrepresented parties has become a huge challenge for our courts in recent years. Access to justice has also become a problem. Lawyers are expensive, and court litigation is very expensive.
There are many creative solutions to the access-to-justice problem. More funding for legal aid is one.
Plain languageHowever, let me propose two specific solutions. The first is more plain language. As a lawyer for 22 years, I’ve always been a champion of plain language. I have often met resistance from other lawyers. Also, plain language has never been a priority for those who draft statutes and regulations. Finally, judgments are rarely written in plain language.
As an administrative law judge, I can now do something about this. I write all of my decisions in plain language. It’s not just a matter of avoiding jargon, and using short sentences and short paragraphs. It’s also a matter of writing something that a non-lawyer, who has not read the legislation, can truly understand.
For example, if I rely on a specific section of legislation, I quote the section. But that’s not all. I then explain how the section fits into the broader scheme of the legislation and why it makes sense. My hope is the landlords and tenants will learn something useful, which will help them in their future relations with other tenants and landlords. Of course, it would be even better if our legislation had been written in plain language to start with.
Luckily, our legislation gives us the right to admit evidence that would not be admissible in a court. This is the case for most administrative tribunals. My experience is that this approach saves time and aggravation, and leads to just results.
TribunalsWhich brings me to my second suggestion for improving access to justice: more administrative tribunals and more tribunal-style rules for civil courts. Of course, s. 96 of the Constitution Act, 1867 is an issue, but not an insurmountable one.
Unrepresented parties are a challenge, there’s no denying it. I’ve noticed that the unrepresented landlords and tenants who appear before me just can’t catch on to the concept of cross-examination. They want to make speeches (essentially rebuttal), rather than ask questions.
I’ve gotten in the habit of giving my own little speech: “Just remember everyone, a ‘question’ is a sentence with a question mark at the end.”
Also, parties sometimes want to talk about things that are 100 per cent irrelevant to the issues on appeal. Not understanding the law of evidence, they rarely object when the other party starts rambling on about something completely irrelevant. So, I have to jump in, politely but firmly. I have to focus them on the relevant issues.
Also, if there are several issues to be dealt with, sometimes both parties forget to mention a few of the issues. For example if the dispute is about a stove, a fridge, a washer, and a dryer, both parties might forget to say anything at all about the dryer. So, I have to jump in and politely ask both parties to please comment on the dryer.
The process ends up being part adversarial and part inquisitorial. But it’s a good process. It gets fair results, and gives all parties a bit of education for future reference.
Here’s my point: access to justice would be improved if the rules of civil procedure were much simpler and much more flexible. In short, civil rules should be more like the rules of administrative tribunals. (Criminal law raises its own issues, so I will leave the issue of criminal procedure to another day.)
If we want more plain language in our system, it’s up to individual lawyers, legislative drafters, judges, and administrative decision-makers to take the initiative. Better access to justice will be the result.
If we want simpler, faster, cheaper civil procedure, it’s up to lawyers and bar associations to lobby justice ministers to make it so.
Finally, there are some disputes now heard by civil courts that should be heard by new or modified administrative tribunals. For example, it has always struck me as odd that unfair-dismissal disputes in unionized workplaces are handled by arbitrators, while wrongful-dismissal disputes in almost all non-unionized workplaces are handled by courts. There are other examples, which I leave for a future column.
For now, let’s all keep our language plain, and let’s make our procedures simpler!
Elliot Leven is the deputy chief commissioner of Manitoba’s Residential Tenancies Commission.