Ontario Case Law Research for Self-Represented Litigants
Whether as a plaintiff or as a defendant, it is crucial for Ontario self-represented litigants to conduct case law research from the outset of a legal claim.
In the Canadian common law system, judges rely on case law precedent in order to provide some measure of regularity and predictability to the judicial process and its results.
For that reason, it is absolutely necessary for self-represented litigants to familiarize themselves with the on-point case law that aligns with their unique issues and factual circumstances.
For instance, case law research enables the self-represented litigant to get an objective perspective on the strengths and weaknesses of their legal case.
Do you have solid grounds for proceeding with your legal claim? If you’re a plaintiff, you want to look at case law research that will educate you as to which legal grounds other plaintiffs have used in similar fact situations, in addition to learning how such grounds were applied in the case.
When you have similar fact case law research in hand prior to filing your legal claim, you can also use the case law phrasings to assist you in writing your Statement of Claim (which is also referred to as pleadings).
In Ontario, there are cost consequences in the event you are unsuccessful with your legal claim, so you also want to use similar fact case law research to get a better handle of the legal lay of the land, allowing you to make an informed judgment as to whether it’s worth it for you to file a legal claim or not.
Some of the insights that case law research can provide you: How unique your case is. How many plaintiffs in similar circumstances have succeeded or failed. In what way is your case different (or, in legal parlance, distinguishable) from other plaintiffs in similar circumstances.
Case law research may even provide a self-represented litigant with valuable insights as to what pitfalls to avoid (for those similar fact cases where a plaintiff has lost for a variety of reasons, whether from a poorly formulated Statement of Claim, weak legal arguments, flawed legal grounds, insufficient evidence to prove liability, or a failure to establish entitlement to the scope of damages claimed.
With respect to damages, the self-represented litigant should employ case law research in order to get a handle on whether the quantum of damages they are claiming is reasonable under the circumstances. Though every case is distinguishable on their facts to some extent, legal research can nevertheless provide a basis for getting at a reasonable range in considering how much damages you should be claiming.
This is important to consider, since the cost consequences of litigation in Ontario generally follow the result, with the losing party paying a portion (or, in some cases, a substantial portion) of the successful party’s legal fees.
Though many self-represented litigants opt to forego any kind of legal assistance due to issues of affordability, it may nevertheless be helpful to hire a lawyer on a limited scope, task-by-task basis prior to filing your claim so that counsel can furnish you with the on-point case law you’ll need in order to get a reasonable handle on the strengths and weaknesses of your case, in addition to obtaining guidance as to how you can effectively employ case law research to guide you in crafting your pleadings, developing your supporting affidavit evidence, formulating your legal arguments, and coming up with a settlement amount that is in line with other awarded amounts in similar fact cases.
In Ontario, pursuant to Rule 49, you can obtain substantial indemnity on your legal costs – from the date of a settlement offer that remains open up to the start of the trial – if your settlement offer is as good as or better than the litigation result you had achieved. If you are the defendant, you can obtain partial indemnity on your legal costs if your settlement offer amount is as good as or better than the amount that the plaintiff managed to obtain in litigation.
In sum, case law research may assist the self-represented litigant in coming up with a reasonable settlement amount – not too low and not too high – that appears to be consistent with amounts awarded in similar fact cases.
As a settlement bargaining tool, case law research enables you to put your cards on the table, to signal to an otherwise unreasonable party that your settlement offer isn’t merely an amount you pulled from thin air – that it’s backed up by solid case law precedent from similar fact cases.
In this manner, an early limited scope expenditure on case law research can provide a self-represented litigant with a myriad of potential benefits that may, in the end, save you money and costs down the line.
Where a self-represented litigant cannot afford to hire a lawyer to furnish them with case law, there exist free online databases such as CanLii, enabling you to conduct your own legal research of case law precedent.
One often neglected benefit of case law research is that it also furnishes the novice self-represented litigant with the kind of court jargon and phrasings that the litigant can adapt (and even copy-paste) in crafting their pleadings and legal arguments.
This is not a small point to consider, since one of the most commonly overlooked deficiencies in self-represented party claims lies in the fact that such claims are all too often poorly written.
When you read enough cases, you get an insight as to how judges frame particular legal problems. As a self-represented party, when armed with a batch of cases pertinent to your legal issues, you will have before you a reference model for how you can similarly frame your legal issues, borrowing the language and phrasings of a judge who has spoken on prior cases similar to your own.
When you employ case law precedent in this manner, you signal to a judge that your claim is well thought out, not frivolous – and, most importantly, that you understand the terms and the general mindset of the judge who will be adjudicating your claim.
On a practical level, it signals to the judge that you have done your homework. So, even if you aren’t clear as to court procedure matters, the judge may be more forthcoming in providing you procedural direction as a self-represented litigant when you can signal to them that you have a solid grasp as to the framing of the substance of your claim, in line with relevant case law pertinent to your situation.
The preceding should not be relied on as legal advice. It is offered as general information only, on an as is basis.
James Cooper, a Toronto area lawyer, provides flexible limited retainer arrangements and affordable legal help for self-represented litigants (in both civil litigation and family law cases) and for sophisticated clients concerned with managing their legal fees.
Mr. Cooper also provides quality professional legal research assistance and civil litigation support services to lawyers, law firms, and members of the public throughout the Greater Toronto Area (including Markham, Thornhill, Etobicoke, and Richmond Hill) and throughout the Province of Ontario.
For more information, visit SelfRepLawyer.ca