In a recent article published in
Law Times, I impressed upon the importance of seeking legal advice even in the Small Claims Court. I stressed that self-represented parties were prone to making irreversible legal and strategic mistakes that could prove to be costly to their case.
The online responses from readers were fast and, in one case, furious. One commentator, for example, said he was “disgusted” by my “self-serving agenda.” After all, he wrote, “Small Claims Court has always been the last refuge of the common man.”
Johnny, meanwhile, argued that “Small Claims Court has always promoted itself as a place that you can self-represent. If litigants believe they don’t have to hire someone, they probably won’t.”
Overall, the shared sentiment by readers was that it is lawyers who are responsible for the legal system’s failures and that the idea of the Small Claims Court is to allow people to litigate on their own if they feel like it.
But my argument wasn’t about whether or not the Small Claims Court represents the ideals of the justice system. Nor did I advocate requiring a litigant to retain a lawyer. Rather, my position was simply that obtaining legal advice is the most practical thing to do.
A recent decision of the Superior Court illustrates the high price of mistaking ideals for practicalities when it comes to Small Claims Court litigation. In 2005, Timothy and Barbara Farlow suffered the loss of a child with a genetic abnormality at the Hospital for Sick Children. They subsequently sued SickKids and two doctors in the Small Claims Court.
The Farlows opted for the Small Claims Court because of its “openness and simplicity” and because “imperfect justice is better than no justice at all.” They could have sought legal advice but instead chose to represent themselves.
Unfortunately for the Farlows, their case suffered a major blow after Justice Thea Herman ruled it must be elevated to the higher court. The consequences are, of course, devastating for the Farlows, who will now have to go through the time, stress, and financial strain of litigating the case if they choose to proceed. In fact, it’s quite possible they’ll simply give up altogether.
Would the outcome have been different if they had sought legal advice or representation? The Farlows themselves seemed to think so. In fact, Barbara admitted after the ruling that the couple had chosen a poor course of action against a strong opponent, according to media reports.
What makes the hospital strong? Well, we would have to ask Barbara, but I would say it’s because it had representation by legal professionals.
Does this mean it’s fair that they may have lost because of this? Of course not, and one would be foolish to suggest the justice system is perfect or always fair. But the case illustrates the point that fairness is one thing, but being practical about the system we find ourselves in is another.
Jordan Farkas is founder and lead lawyer of MrSmallClaimsCourt.ca.
He also acts as an outsourced litigation consultant to lawyers and self-represented parties on higher-court matters. He can be reached at 647-727-4686 or [email protected].
