The Provincial Court of B.C. has made major systemic changes to address the challenges that many British Columbians experience in accessing justice. Despite these changes, the Bench is often challenged by the needs of self-represented litigants (SRL).

According to Judge Wishart, Associate Chief Judge of the Provincial Court of B.C., the question is “what can I do as a judge to put litigants in the best position to represent themselves in Provincial Court?” She identifies the following five areas where judges walk the tight rope between ensuring fairness and preventing the appearance of bias.

1. Comfort of Litigants

“SRLs are generally very nervous when appearing in court. This can impact their ability to focus on what it is they need to do to prove or defend their case. A lot of this nervousness comes from not knowing about court procedures. This includes not knowing how to present their evidence or smaller details such as where to stand and how to address the judge. Judges can make justice more accessible by explaining court procedures at a pre-trial conference or case conference about what happens at a trial and how evidence will be presented. A judge can take a few minutes at the start of a trial to explain how the trial will unfold and this can help put litigants more at ease.”

2. Perception of Fairness

“Judges always have to be aware of the perception of fairness particularly when dealing with SRLs. This can arise in the context of the role of the trial judge to control the proceedings and ensure the evidence presented is relevant. A judge may need to interrupt and re-focus a litigant and this might feel like the judge is preventing them from telling their side of the story, particularly if this only happens to one party.”

3. Self-Represented vs. Represented Parties

“Where a judge spends more time explaining procedures to one party this might be viewed by the other party as favouritism. This is particularly challenging when one party has counsel and the other is a SRL as a judge will likely spend more time explaining procedures to the SRL. This can be viewed by the represented party as the judge helping the self-represented litigant and “being on their side.”

4. Challenges in Family Cases

“In family cases, SRLs not only have the stress of navigating the court system on their own, in many situations there is added emotional stress of dealing with a former spouse. Parties will often have some sort of ongoing relationship or at least communication in order to parent their children. An adversarial trial can negatively impact their ability to cooperate in the future. A judge can take steps to make sure parties remain respectful of one another during court proceedings, even where there are disagreements and strong emotions. Dealing with SRLs presents a special challenge where there is a significant power imbalance or domestic violence.”

5. Challenges in Small Claims

“In small claims cases, SRLs may not understand what evidence they need to prove or defend their claim and often look to the judge at the Settlement Conference for help. Although judges can assist parties by explaining court procedures, judges do not give legal advice and parties are left to try to get some advice or information on how to present their case. Judges spend time managing expectations both in terms of how long the process takes and what can happen even if a litigant is successful at trial — they may not get their money immediately (payments may be spread out over many months) or at all.”

Some of these challenges may be met by SRLs using unbundled services and alternative dispute resolution processes, which allow for a more collaborative approach to problem solving. Where lawyers are representing clients against an SRL, it is important for the lawyers to explain to their clients why the judge may appear to be “helping” the SRL and explain the judge’s role to ensure fairness in the proceedings.