November 5, 2015

Labour boards have long dealt with unrepresented workers making duty of fair representation applications against their unions. Increasingly, however, labour boards are faced with non-unionized workers who must represent themselves in employment standards and health and safety claims. Smaller employers who must represent themselves in such proceedings are also common. Join this session to hear about the findings of recent studies on the experience of self-represented litigants, learn how labour boards have adapted rules and procedures for those without professional representation, and review the relevant rules of professional conduct for advocates and adjudicators. Panelists will also discuss steps governments, labour boards, lawyers, unions and other organizations can take to increase access to justice.

  • Defining the issues: Approximately what percentage of labour board hearings involve self-represented litigants? What are the reasons for the increase in self-represented litigants appearing before labour boards? What are the challenges labour boards face when dealing with self-represented litigants? What do self-represented litigants cite as their biggest challenge? What do lawyers find challenging about dealing with self-represented litigants at labour boards? What is preventing lawyers from lowering fees to represent more people? What role, if any, do paralegals have to play in reducing the number of people who are self-represented at labour boards?
  • General responses to the issues: How can boards provide complainants with a meaningful opportunity to be heard while effectively managing the resources of the boards? Should a form of “duty counsel” be available at labour boards? What role should lawyers play in providing more assistance to individuals who find themselves at labour boards unrepresented? For example, should lawyers offer more “unbundled” legal services? Should they offer more pro-bono summary advice?
  • Before the hearing: For self-represented litigants, what are the greatest challenges in getting a case to hearing and in preparing for that hearing? How helpful do self-represented litigants find freely available legal information online? How can it be made more helpful? How have labour boards responded to unrepresented litigants’ needs for information and assistance before the hearing? Which of these responses have been the most helpful? What professional obligations must lawyers be aware of when communicating with self-represented litigants preparing for a labour board hearing?
  • Case management and alternative dispute resolution (ADR): What is the appropriate use of case management and ADR procedures in cases involving self-represented litigants? What role do board mediators play in cases involving self-represented litigants? Do board mediators take any steps to ensure that unrepresented individual complainants are not subject to undue influence to settle potentially meritorious claims on disadvantageous terms?
  • At the hearing: What aspects of hearings do self-represented litigants struggle with the most? What challenges do labour board chairs and vice-chairs face in responding to the needs of self-represented litigants for information and assistance during the hearing? How do the challenges differ when both parties are unrepresented (as opposed to only one party being unrepresented)? Have particular approaches to dealing with self-represented litigants during hearings proved successful? What are the pros and cons of board chairs and vice-chairs adopting an “active adjudication” approach? Can labour boards do anything to address the imbalance that results when employer (or union) counsel appears opposite an unrepresented litigant? What professional obligations must lawyers be aware of when appearing against a self-represented party?

  • This program is approved for 1.5 Professionalism Hours by the Law Society of Upper Canada.