If you buy a newly-built home in Ontario and find construction defects in it, you may be refused compensation by Ontario’s monopoly warranty programme, Tarion. You may then end up as a self-represented litigant (SRL) fighting Tarion and the builder at the License Appeal Tribunal (LAT) to try to get your home fixed.
Most new home buyers can’t afford $450-$800 per hour to hire an experienced lawyer, let alone technical experts. Even for those who could afford $5,000 or $20,000 in legal fees, they also lose time away from work, and go through the anxiety of a complex legal battle, with no way of knowing what the outcome or final costs will be. Most homeowners self-represent. They lose over 80% of the time.
Consumers say “self”-represented, lawyers and judges say “un”-represented. To consumers, the latter implies no one is representing their side, hence the preferred term is self-rep, or SRL.
How can imbalances in the system be righted? How can these problems of real or perceived unfairness be fixed?
Bill Gates once said: “Your most unhappy customers are your greatest source of learning.” I hope the focus group I conducted this month, with a summary below, will encourage legal authorities to listen to consumers and improve access to justice.
I spoke to eight self-represented litigants who’d experienced the LAT, and asked them seven questions. The group of 8 were from varied educational, language and ethnic backgrounds, represented a wide range in age and family size, and were from different parts of Ontario. Some of the cases I followed personally over the last 7 years. I decided to indicate the participants anonymously, as consumers #1-8, since some had to sign non-disclosure agreements, and others feared consequences from Tarion or builders for speaking out.
Here’s a summary of the results:
Question #1: Do you think you got justice at the LAT? Explain.
All 8 participants said no. Reasons ranged from the imbalance of power with two lawyers (builder and Tarion) against the homeowner, and delays caused by engineers, lawyers and adjudicators scheduling their time. Two consumers said they won at the LAT, but later found out that Tarion is not obliged to comply with LAT orders: “enforcement is not within our jurisdiction”, consumer #5 was told.
Two homeowners gave up their case due to motions and high legal costs, one gave up after paying $5,000 for one day, another paid $2,500 for one day and feared running out of money if this continued. Another was asked for a $40,000 retainer with the law firm he was considering using, otherwise they wouldn’t take his case. Tarion refused to give him a Decision Letter, so he couldn’t appeal to the LAT. Consumers can’t use legal fees as a tax-deductible expense as corporations can, so this money comes off their kitchen table.
Why would the LAT hear cases but not enforce their decisions? From a common sense perspective this makes no sense, and it’s also a waste of taxpayer money which funds the LAT.
Consumer #2 was told the Supreme Court of Canada’s decision of Pintea vs. John (regarding a self-rep’s right to get an explanation of the rules and procedures) was “irrelevant”. He also felt the teleconference format chosen for his hearing put him at a disadvantage.
Consumer #5 felt the adjudicators in his multiple hearings were courteous, but the process was too complex for self-reps.
Homeowner #1 said he and his wife were bullied and humiliated by the adjudicator over a 2-year period, and filed a complaint about this, which was dismissed by the same adjudicator.
Why should the same adjudicator act as both judge and jury regarding their own conduct? How objective is this?
All 8 participants cited the imbalance of power between experienced lawyers and self-reps, a 2-against-1 where consumers are out-smarted and out-maneuvered in procedural knowledge and cross-examination skills by both Tarion’s and the builder’s lawyers.
Bill 166, passed in late 2017 by the Liberals, now says consumers don’t have to prove the cause of the defects, only show symptoms. But this creates a further imbalance, since Tarion and builders will certainly get their experts and lawyers to present technical evidence to bolster their own cases, while the consumer will have nothing. This is sending the homeowner into the battlefield with no ammunition.
Consumer #4 said she felt intimidated facing 7 opponents in a pre-hearing, with Tarion lawyers and the builder’s lawyer, and their various assistants and experts all facing her. She felt this was an intimidation tactic, and it prevented her from keeping her composure and making her best case. She was also told she couldn’t bring a friend into the pre-hearing (now called a “case conference”) as moral support. Why? Tarion objected to it, and the adjudicator complied.
Consumer #8 said her husband was forbidden from assisting her during the chief cross-examination because Tarion said her husband was not specifically on title as owner, even though the couple co-owned the home under family law. The adjudicator complied with Tarion’s request.
Consumer #8 said that although Tarion and the builder were able to dismiss her claim for a heating defect using a warranty technicality (late reporting), the LAT should have forced Tarion, as builder regulator, to get the builder to fix the defect. She had to proceed to Provincial court to get this problem addressed, creating another burden on the taxpayer and the busy court system.
2. Did the adjudicator explain legal concepts clearly to you? ie: rules, forms, asking non-leading questions, use of case law, burden of proof…?
Consumer #1 was not allowed to call a witness he’d subpoena-ed because he was told he’d used the wrong form, even though he had served all the documents properly. This is a witness he found critical to his case.
Homeowner #3 faxed her case from a Staples office outlet to the LAT management indicating the number of pages, but later was told the LAT never received some of the pages indicated on the covering sheet, so she was not allowed to use that information in her case.
Homeowner #8 was told her witness with 40 years experience in installing heating systems was excluded from giving testimony at Tarion’s request, because he needed a specific government of Ontario license number to do so.
Several consumers #2, 7, 8, said they had trouble with the confused and sometimes contradictory state of the LAT case law re Tarion appeals. Some adjudicators told self-reps #1, 2, and 7 that case law is “not really relevant” at the LAT.
Two consumers said the opponents delivered over 100 pages of case law to them, in one case on the eve of the hearing. This they found an intimidation tactic. Without legal training, several consumers #1, 2, and 7, who spent many hours preparing their cases, had trouble deciding what was relevant or what applied to their own case. Law students take years to master this, so it seems unreasonable to expect self-reps to do it within a few weeks.
3) Did the LAT staff help you answering questions you had about your hearing?
All interviewees mentioned there is no one at the LAT to explain the Rules of Procedure (which are designed for legal professionals, not consumers). The LAT administrative staff kept repeating “we can’t give legal advice”. This is one of the most frustrating recurring themes SRLs voiced during these discussions. If having a lawyer is essential to justice, why is self-representation allowed at all? Why not provide independent mediation for self-reps?
Or, why isn’t there a duty counsel on hand to answer legal or procedural questions? Wouldn’t this cost less than letting a hearing drag on for 2 years, as in the case of consumers 1, 2, and 7?
4) Did you get transcripts of your hearing when requested?
Homeowners 1, 2 and 7 said that some recordings of their hearings were “missing” from the official record they asked for, and LAT staff couldn’t account for these gaps, other than to say it was possibly “inadvertence” by adjudicators or staff. Two homeowners said they felt the gaps were deliberate, since this was critical information for their cases. Their efforts to get to the bottom of this were unsuccessful.
How can a hearing be appealed if there’s no accurate record of it? We understand the LAT’s oversight body, SLASTO, is now considering eliminating all recordings of LAT hearings. Who would benefit from that?
5) What other experiences can you share which might help make this process more balanced and fair for self-rep litigants?
Several homeowners struggled with trying to formulate non-leading questions in cross-examining their witnesses; one said she found out too late she was allowed to ask leading questions to the opposing side’s witnesses. She felt in a straight-jacket all through the hearing because she thought this restrictive rule applied to all questioning.
Four of the eight consumers said they were rattled and put off balance by frequent interruptions by opposing counsel due to objections. Two of the consumers felt adjudicators always allowed the objections of Tarion/builders, but none of theirs. This contributed to their feeling of not being heard or understood.
Several consumers had difficultly getting expert witnesses or engineers to testify for them against Tarion. Consumers 1, 4, 6, 7, and 8 experienced this. Experts are reluctant to testify against a powerful government monopoly and builders, since these corporations are the source of future business for them, but they are unlikely to ever see the homeowner again.
Consumer # 1 said some of his well-meaning actions were misinterpreted by the adjudicator, who took them as a sign of disrespect. For example, when he tied to give documents to the opposing counsel during the hearing, he walked behind the adjudicator’s podium, thinking this was more respectful than walking in front. But the adjudicator took this as a sign of disrespect and sharply admonished him in front of all present. When he used the term “Madame ..X.. ” to speak to her instead of “Madam Vice-Chair”, she took this as an affront to her status, and sharply admonished him again in front of all present. His attempts to confer with his wife during difficult moments in the hearing were also interpreted by the adjudicator as disruptive and disresepctful, while lawyers do this all the time. Shouting at and admonishing a self-rep in front of the opposing parties weakens their resolve and is highly intimidating.
Seven of the eight consumers said the process felt unfair, complex, and out of balance.. Some of the reasons are already outlined above. Four consumers said they felt the adjudicator reacted more favourably toward the parties represented by counsel and showed more respect and collegiality toward the lawyers than the self-reps. They often used terminology and referred to statutes and case law which are foreign to even the best prepared self-reps, terms like “estoppel”, for example.
Several of the participants explained that they had much more at stake than the lawyers, adjudicators and LAT staff. A new home is the biggest investment they make in their lives, while to a lawyer this is just another case. They’re paid to win, to get claims dismissed for their client, not get homes fixed or deliver justice.
The reason the legal profession was created in the first place was to remove the client’s emotional involvement, and focus only on the facts and the law. But self-rep can’t do that: they have a very personal stake in the trial. They return each day to a newly built home with construction defects; they want to get what they paid for and are entitled to by law, but they’re losing time and money trying to do this in a game with rules which are foreign to them. Like sending ordinary citizens into an operating room for a heart transplant, with no training.
I hope this informal focus group can be the beginning of a dialogue between end-users and service providers. The most dissatisfied customers of the legal business are those who know what needs to improve. There are many suggestions here which don’t require a change in legislation or years to implement. But unfortunately the the self-rep still seems to be viewed with suspicion by the legal profession.
We’d all hire the best lawyer on the planet if we could afford it, since that would greatly improve our chances of winning. But the cost of lawyer-ing and the time spent doing it shouldn’t exceed the size of the problem. The playing field has to be fair and balanced, and the consumer shouldn’t feel the goalposts and the rules are being shifted to his disadvantage.
Legal reform and regulatory bodies should include the victims of the system in their policy discussions in order to get it right going forward. Otherwise we’re creating more problems, overburdening the taxpayer and the court system, creating more financial and emotional stress for families, and we’re still Venus talking to Mars.
Anyone who’d like to do a follow-up focus group, or a discussion about this one, please get in touch by posting a comment on my blog. Lawyers, judges, and law students welcome. Thank you to the participants, and my readers.