Brain-injured woman denied legal aid calls her ordeal 'frighteningly unfair'

A Medicine Hat woman's legal battle is raising questions about whether people with disabilities are being fairly represented in court.

A brain injury left Judy Gayton with cognitive problems and difficulty regulating her emotions. It also made her complex medical malpractice suit — which took years to get to trial — even more complicated.

In 2014, Gayton was deemed incapable of representing herself by a neuropsychologist, prompting a judge to order that a lawyer be appointed as her litigation representative.

But the civil proceedings have dragged on for years as Gayton — who lives on AISH and CPP — has been denied legal aid and cannot afford to hire a lawyer.

'I'm just devastated'

In a twist Gayton calls "a contradiction" and "frighteningly unfair," the order was changed just three weeks before her medical malpractice trial was set to begin.

The judge removed the requirement for a litigation representative saying she was free to bring in a so-called "McKenzie friend" — a companion who can provide help such as note taking and quiet suggestions.

"I'm just devastated. I'm absolutely devastated," said Gayton, who speaks slowly at times, sometimes with a stutter.

She insists she was set up to fail.

"It's not a poss...It's an impossible task," said Gayton.

Went to court alone

Local and national legal groups tried without luck to find someone to represent her on a pro-bono basis. And a request for state-funded legal counsel was denied.

On Tuesday, Gayton went to court alone, tried to explain to the judge she was unable to represent herself and then sat down.

After she refused to answer further questions from the court, the judge dismissed her case.

"This is simply about getting her off the docket and ending it," said Julie MacFarlane, a law professor at the University of Windsor and director of the National Self-Represented Litigants Project.

'Travesty of justice'

MacFarlane, who calls Gayton's case a "travesty of justice," believes the rules of Gayton's competency order were changed in an effort to get the case to trial more quickly.

"I think [it shows] very clearly there is no meaningful access to justice for somebody in her situation," said MacFarlane.

She worries this may become a wider problem, as more and more people are unable to afford lawyers.

One solution, according to MacFarlane, is to provide affordable or subsidized services to people with disabilities.

"The real issue here is that we cannot say people with disabilities have access to justice and then say they have to represent themselves when they cannot afford legal counsel," she said. "It's totally contradictory. And it's happening all over Canada."

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