The Canadian Federal Court Rules Committee Subcommittee on Global Review of the Federal Courts Rules makes an interesting recommendation:
The Rules Committee should assess all existing rules from the standpoint of access to justice, particularly by self-represented parties, with a view to seeing if any simplification or clarification is warranted. In future, proposed rules should be assessed from that standpoint as well. (at page 46)
Here is the complete section on Access to Justice — which has hallmarks of a committee product, with some apparent inconsistencies, particularly withe above para. I have bolded one interesting idea on the use of court-drafted orders.
In our view, for the reasons discussed at the outset of this report, the Federal Courts Rules generally achieve proper balances, avoiding, to the extent possible, the creation of unnecessary, bureaucratic requirements that hinder cost-effective, timely justice, without any offsetting advantage. The Rules Committee should continue to ensure that new and existing rules are assessed from that standpoint.
As part of our policy review, we conducted an overall assessment of the Federal Courts Rules from that standpoint. We found that the Federal Courts Rules possess a number of advantages over other jurisdictions’ rules in terms of facilitating access to justice. For example, the default position in the Federal Court of Appeal is that motions are determined on the basis of written submissions alone, with oral hearings held only when necessary, and that is rare.
On simple motions in both the Federal Court of Appeal and the Federal Court, a practice has developed whereby parties address the Court by letter, copied to the opposing litigant. These features make it easier for parties to seek assistance from judges and prothonotaries when necessary to restore order and control costs due to the participation of a self-represented party, and facilitate access to justice.
On motions in the Federal Courts, the judge or prothonotary drafts the order, not the parties, and has the power to make directions. This allows the Court to tell self-represented parties exactly what they need to do.
For example, when a self-represented party’s need for education is evident, some draft into their orders or directions advice in plain language about how to comply with the Federal Courts Rules, sometimes even with a hyperlink to them, sometimes even directing them to their public library if they do not have a computer at home.
Some draft into their orders preambles or terms that encourage the opposing party to assist the self-represented party in uncontroversial ways.
If legal representation might assist, some use orders or directions to direct self-represented parties to useful webpages or phone numbers.
The semi-annual official meetings of the judges and prothonotaries of the Federal Courts would be good fora to discuss and disseminate these ideas and perhaps others concerning how the rules can be used to facilitate access to justice.
Given the prevalence of self-represented litigants in the Federal Courts system, the Rules Committee should re-double its efforts to ensure that
new and existing rules are comprehensible to self-represented litigants and capable of being complied with. For example, Part 7 (on motions) is difficult for many lawyers to follow — let alone self-represented parties — especially in light of the informal practices mentioned above. It could be simplified and clarified. The same may be true of other parts of the rules.
In the course of our work, we have learned that in some offices, the Registry is aware of duty counsel and legal aid organizations, such as Pro Bono B.C. and Pro Bono Ontario, that are available to assist self- represented persons either by taking on their proceedings or by being available to offer brief advice concerning how to comply with the rules. However, this is not always the case.
In some offices, a roster of duty counsel and legal aid organizations has not been compiled. In other offices, duty counsel, legal aid organizations, or both are scarce or non-existent in the area of Federal Courts practice. Access to justice would clearly be served by developing and maintaining in each Registry office a roster of duty counsel and clinics.
Therefore, in light of the foregoing, we make the following findings and recommendations:
17. A wholesale restructuring or reordering of the Federal Courts Rules is not warranted or advisable at this time. The benefits do not exceed the costs.
18. Existing tables of contents and indices, such as those found in commercially available texts of the Federal Courts Rules, suffer from lack of detail and are unsatisfactory. The Courts should prepare tables of contents and indices that are satisfactory and make them publicly available.
19. The Federal Courts should make better use of their websites to enhance access to justice, particularly by self- represented individuals. Measures include creating unofficial, non-legal user-friendly summaries and checklists concerning frequently-used procedural steps such as motions and appeals, providing pdf versions of the Forms that users can type into, and giving guidance, especially to self-represented parties, concerning the most appropriate and effective ways of conducting of litigation.
20. The Federal Courts Rules possess a number of advantages over other jurisdictions’ rules in terms of facilitating access to justice. The official meetings of the judges and prothonotaries of the Federal Courts would be
good fora to discuss and disseminate ideas concerning how orders and directions under the rules can be used to facilitate access to justice.
21. A roster in each province and territory of duty counsel who are prepared to represent self-represented persons or provide them with advice concerning the Federal Courts Rules should be developed and maintained in each Registry office.
22. The Rules Committee should assess all existing rules from the standpoint of access to justice, particularly by self- represented parties, with a view to seeing if any simplification or clarification is warranted. In future, proposed rules should be assessed from that standpoint as well.
The full report is here.