Self-Represented Litigants: A Sea Change in Adjudication

Peter Oliver and Graham Mayeda (eds), Principles and Pragmatism: Essays in Honour of Louise Charron (LexisNexis, 2014).

Ottawa Faculty of Law Working Paper No. 2013-07

27 Pages Posted: 2 Nov 2013 Last revised: 20 Nov 2013

See all articles by Michelle Flaherty

Michelle Flaherty

University of Ottawa, Faculty of Law

Date Written: November 1, 2013

Abstract

Self-represented litigants make up an increasingly large portion of parties appearing before Canadian courts and tribunals. Where much of the literature looks at the administration of the legal system, including the role of court administrators, the streamlining of procedures, and access to legal aid or duty counsel, I focus on the role of the adjudicator. In particular, rising numbers of self-represented litigants have changed our perception of the role of adjudicators and their obligation to remain impartial. Traditionally, adjudicators understood impartiality to require a strict prohibition on assisting any party, including self-represented litigants. This article charts the evolution in the jurisprudence and shows that decision-makers are now balancing the obligation to remain impartial with a corresponding obligation to ensure a fair process, which often involves assisting self-represented litigants. This article explores the material implications of self-represented litigants for judicial and administrative adjudicators and offers ‘substantive impartiality’ as a new way to conceptualize the spectrum of active adjudicative approaches in cases involving self-represented litigants. The notion of ‘substantive impartiality, is a timely rethinking of the traditional approaches to adjudicative duties such as impartiality, which has been shown to be ill-equipped to meet the challenges posed by self-represented litigants.

Keywords: self-represented litigants, judicial impartiality, judicial discretion, substantive impartiality, administrative law, administrative tribunals

Suggested Citation

Flaherty, Michelle, Self-Represented Litigants: A Sea Change in Adjudication (November 1, 2013). Peter Oliver and Graham Mayeda (eds), Principles and Pragmatism: Essays in Honour of Louise Charron (LexisNexis, 2014).; Ottawa Faculty of Law Working Paper No. 2013-07. Available at SSRN: https://ssrn.com/abstract=2348708 or http://dx.doi.org/10.2139/ssrn.2348708

Michelle Flaherty (Contact Author)

University of Ottawa, Faculty of Law ( email )

57 Louis Pasteur Street
Ottawa, Ontario K1N 6N5
Canada

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