Self-Represented: What Can Go Wrong?team
In light of increasing economic hardships and the costs of legal proceedings, it comes as no surprise that the number of self-represented litigants is on the rise in Ontario’s courts. This is especially true of many employees who are wrongfully dismissed and understandably anxious about paying their bills while seeking their legal entitlements against their former employer.
Many assume that it is cost-effective to avoid even consulting with a lawyer because they could probably navigate their legal matter themselves. However, many challenges self-represented people face can be avoided by seeking assistance from an employment dispute lawyer.
This article explores common pitfalls and difficulties self-represented employees face in the legal process. It will also explain the benefit of hiring an employment dispute lawyer to assist with navigating the legal system.
Not Following the Rules of Procedure
As a self-represented litigant, it is important to know the rules and procedures of the court or tribunal your lawsuit is being heard in. Failure to comply with the rules of procedure can result in delays in your case, and possibly even dismissal with the other side’s legal costs awarded against you.
In Ontario, the Rules of Civil Procedure and the Rules of the Small Claims Court govern the processes many self-representing employees go through for their lawsuits. While judges usually give some leniency to self-represented litigants regarding many procedural rules, you should not expect a judge to answer your legal questions or otherwise help make your case.
Similarly, an employment dispute lawyer for the other party, while required to respond professionally to you in correspondence, is representing the interests of the other party. They are prohibited by their legal and professional obligations to provide you with any legal advice, and you should take any such statements from the other side’s lawyer with a grain of salt.
There are many ways self-represented employees can fail to follow the rules. Everything from how you plead your case in your statement of claim to how you set your case down for trial requires strict compliance.
Consulting an employment dispute lawyer and having them advocate for you in court decreases the likelihood of getting your case dismissed based on failure to comply with the relevant procedural rules.
Not Meeting Deadlines
One of the most common mistakes made by self-represented individuals is missing the legal deadline to file their legal claim. Ontario’s Limitations Act, 2002, provides general guidance on the timeframes for filing wrongful dismissal and most other civil claims.
The general rule is that a person has two (2) years from the date they knew or reasonably should have known they suffered injury, loss, or damages they could potentially commence a proceeding against another person to pursue a remedy. Failure to seek legal advice following an injury is generally not an excuse for missing the limitation period to commence a proceeding.
Self-represented litigants can also run into trouble by missing deadlines established by the legal rules of procedure, a court order, or a judge’s expressed direction. Contrary to day-to-day deadlines in the workplace or school projects, self-represented individuals should not expect extensions to be granted lightly.
Many self-represented individuals are managing a variety of responsibilities and keeping track of deadlines for their lawsuit can be challenging. Consulting with an employment dispute lawyer regarding your claim and its associated deadlines can help alleviate some of that stress.
Failing to Make Legal Arguments
Should you choose to be self-represented, you will be required to lay out your claim on relevant legal and factual grounds. You will be obligated to inform yourself about any relevant statutes, case law, and legal principles relating to your employment claim.
You will then have to present your case at your trial or hearing before the decision-maker. Judges and other adjudicators typically expect parties to a legal proceeding to cite their sources for their legal arguments. Failure to cite the correct law and frame the facts of your case can damage an otherwise strong and arguable claim.
The Ontario Human Rights Tribunal decision of Luthra v. CAPREIT Limited Partnership, 2015 is a good example of making the right legal arguments for a case as a self-represented individual. In this case, the Applicant claimed her termination was due to discrimination by her employer because of her disciplinary record at work. She filed her claim under section 5 of the Ontario Human Rights Code (the “Code”).
Contrary to the Applicant’s understanding of the law in Luthra, Section 5 referred to an employee’s record of criminal offences, not their workplace disciplinary record. The Applicant requested permission at the hearing to change her claim to discrimination on the basis of disability. The Tribunal granted the request, but the Applicant failed to provide evidence or make the right legal arguments. As a result of the failure to understand what legal arguments to make from the start, the Applicant lost her case.
Confusion About Evidence
Another problem encountered by many self-represented individuals is knowing what evidence to submit, ask for, and rely on in their lawsuit. It can be daunting to sort through evidence such as letters, emails, text messages, and photographs without knowing which ones might be relevant to your claim or what can be submitted to a court or tribunal as evidence.
Questions of what evidence to submit, how to use evidence in your favor, how to acquire disclosure of other evidence, and what evidence may not be allowed are extremely important for a case. These are issues that are the subject of entire legal textbooks and heated arguments in courts.
What is considered relevant for a case? What is considered inadmissible? What does the phrase “hearsay” really mean? What can you ask another party to disclose to you as part of the legal action? A self-represented litigant can go through an entire lawsuit not knowing they might not be allowed to rely on or submit their “bombshell” piece of evidence.
If you fail to ask for evidence, you’re missing but the other side might have in the discovery and documentary discovery stage of your lawsuit, you risk losing your case. Knowing what questions to ask the other side, and how to ask for the production of documents as part of a lawsuit can be fatal to an otherwise winnable case.
Issues of evidence are the most misunderstood areas self-litigants struggle with. An employment dispute lawyer can help you determine your questions of evidence, and ensure you make the best case possible before setting your case down for trial.
Naming the Wrong Defendants
Employment dispute lawyers can also assist with ensuring your claim is against the correct party. Knowing the correct legal name of a business is a common difficulty faced by self-represented individuals. If you believe you have a claim against your employer, knowing the corporate name of that employer is essential to pursuing a lawsuit.
It is common for a business to operate under a name that is different from its legal name. If you are not sure of the party’s legal business name, you can do some research online or obtain a corporate profile report to confirm the business’ legal name. Self-represented litigants risk either having their claim dismissed, or not having a court order enforceable against the entity they thought they were suing, even if their case is successful.
Some self-represented litigants also name defendants that should not be named in a lawsuit. For example, naming your boss personally and your employer for terminating you could be considered improper because your boss was acting in the course of his employment when terminating. There are good reasons to name additional parties to a claim, but that is a fact-specific decision that should be made after consulting an employment dispute lawyer.
Knowing who to name and when to name them is a question of legal strategy and must be justifiable. Naming defendants improperly could have consequences on a self-represented litigant’s case, including owing some of the improperly named defendant’s legal costs, or having their claim entirely dismissed by a court.
How An Employment Dispute Lawyer Can Help
A self-represented employee may be anxious and stressed about all the potential ways they can cause problems for their own case. That is the benefit of an employment dispute lawyer – peace of mind so your case is handled properly, by a licensed legal professional.
An employment dispute lawyer can help you avoid many common pitfalls in lawsuits and seek your legal entitlements with confidence. If you win your lawsuit against your employer or another defendant, the court would usually award some or most of your legal costs regardless.
An employment dispute lawyer can also help you navigate a legal dispute as an employee or an employer. You can either consult your lawyer on an “as needed basis” or retain them on a limited scope basis to answer your questions but not represent in court for the lawsuit. That way, you are paying for the lawyer’s knowledge and expertise in navigating the legal process, without having to pay for as much of their time.
Consulting an employment dispute lawyer can be the difference between succeeding in your lawsuit or having it dismissed entirely. If you lose a civil claim in Ontario, you’re not just out what time you put in, but possibly even some of the other side’s costs. Based on the risks, it makes sense for many to at least speak with an employment dispute lawyer before making the risky decision to represent themselves in a lawsuit.
Employment disputes can be costly, lengthy, and stressful. Making the decision to be self-represented may help alleviate some of the costs involved but can cause more headaches and hurt your chances of winning.
Whether you are making a claim or defending against one, opting for representation by an employment dispute lawyer can help reduce a lot of the stress and risks. An employment dispute lawyer can guide you through the legal process, keep track of limitation periods and filing deadlines, and make legal arguments using evidence to support your position in the dispute.
If you are an employee or employer considering self-representation in an employment dispute, our team of experienced workplace lawyers at Achkar Law can help. Contact us by phone toll-free at +1 (800) 771-7882 or email us at [email protected], and we would be happy to assist.