Context Matters: Lessons in the Practicalities of Procedural Fairness

Written by Jennifer Leitch, NSRLP Executive Director; originally published on Slaw, Canada’s online legal magazine.

While there may be growing consensus about the fact that self-represented litigants (SRLs) are often unsure of court procedures and processes, a recent decision from the Yukon Court of Appeal highlights the significant implications for SRLs who are struggling, and the responsibility on other justice system players to make the process as transparent as possible. In LK v DD, the respondent in a family law application was successful at the Yukon Court of Appeal in overturning family law orders made at a summary trial of the parties’ applications and cross-applications. The Court of Appeal determined that the respondent had clearly not understood that the matter was proceeding by way of summary trial, despite repeated attempts to clarify the process. While both parties had filed applications and cross-applications and there had been a series of case conferences, it was unclear from the record, the orders made throughout, and communication from the trial coordinator’s office, that the family law issues would be resolved by summary trial. On various occasions, and in a multitude of ways, the respondent SRL had sought clarification about the process. Ultimately, the consequence of not receiving appropriate clarification was that the SRL was unprepared to participate in a summary trial, at which the court proceeded to make final orders. The SRL had been compelled to proceed with a summary trial without an evidential record that substantiated any of his claims. The Court of Appeal noted that the further consequence was that, “the failure to provide the appellant with notice of the nature of the hearing he faced and of the precise nature of the relief being sought, gave rise to a breach of procedural fairness.” Further, the Court noted that an unfair process, “in and of itself, gives rise to a failure of justice and is a self-standing, crystallized legal wrong.” Cases such as this provide an opportunity to learn how both courts and counsel may better ensure that the principles of procedural fairness are protected when one of the parties is an SRL. There are several lessons we can take from this ruling.

First of all, let’s be clear about language. As noted by Justice Voith, the respondent had drawn a distinction between applications and summary trials (as did one of the case conference judges), thus signalling a misunderstanding about the appropriate terms of usage within family law proceedings. Moreover, it appears that at no point was it made clear to the SRL that an application for summary trial could be both an application and a summary trial. Such a procedural point may be readily understood by counsel and the court, but likely and naturally not by SRLs. Additionally, confusion over the notion of interim versus final relief (common within the family law regime) meant that that the respondent was unclear on both what was required of him, and the nature of the stakes at the trial. The lesson here is that the use of legal terms signalling different procedural stages and processes presents challenges for non-lawyer SRLs. The objective must be that everyone is on the same page.

Secondly, it is not sufficient for a represented party’s counsel to suggest that procedural matters should be “obvious” from a read of the materials – this is not always the case, and particularly not the case when the represented party does not cite the jurisdiction, statutory authority, or rule being relied upon in the Notice of Application, instead simply referencing “the Rules.” As the Court noted, an assertion by counsel that it should have been obvious essentially devolves into the claim that the SRL, “should have figured things out by himself.” Again, what is common knowledge among lawyers has no meaning to a non-lawyer, especially when the language used is untethered to a specific reference. In LK v DD, Justice Voight determined that there was never any formal note from counsel.

In this case, the resulting finding of procedural unfairness due to a lack of proper notice was somewhat easy to identify. Unfortunately, less obvious examples are likely to be common, and yet still threaten the fairness of proceedings; courts ought therefore to be on the lookout for meaningful notice in the context of the case. In cases involving SRLs, this may require clear and unequivocal direction on procedural justifications that provides reference points the SRL can verify.

In the case of opposing counsel, lawyers for represented parties may be pulled in different directions by their duty to resolutely represent their client, and their duty to the administration of justice. While this tension can often be challenging to navigate as a lawyer, we cannot continue to rely on a tired trope (“best interest of the client”) that places little responsibility on officers of the court to ensure matters proceed in a manner that is consistent with principles of procedural fairness. There is no denying that there is a role for professional associations and law societies alike to provide some guidance on navigating these tensions. So, what constitutes procedural fairness in the context of cases involving SRLs may look different from cases involving only represented parties. In cases involving SRLs, counsel ought to satisfy themselves that the opposing party understands what is happening going forward – in doing so they are not providing the opposing side with direction, but simply clarifying how the matter is to proceed. The consequence otherwise, in practical terms, is to have to explain to a client that the entire matter must be sent back to trial to be heard again (good examples are found in both LK v DD and Girao v Cunningham). While there may be concern over counsel’s duties to an opposing unrepresented party, returning a matter to be re-tried cannot be in the best interest of the client.

Third, let’s consider what should happen when it is readily apparent that an SRL is not prepared to proceed with a particular hearing as a result of mis-understanding the process. In LK v DD, at various points in the summary trial, as reflected in his reasons, the summary trial judge was critical of the fact that the SRL had not provided evidence that backed up his claims. In response to these concerns, the SRL advised that he had previously offered to provide detailed back-up information to the opposing party, suggesting that such information did exist, and that the SRL understood it would form part of his claim. The court did not take account of this, but proceeded on the basis that the SRL did not have information to support his assertions. In something of an obiter comment regarding this issue, Justice Voight noted that it may have been more fitting for the judge hearing the summary trial to adjourn, and allow the SRL to gather the appropriate evidence to support his submissions. Such an approach is reinforced by the idea that counsel for the represented party knew that the SRL had offered to provide such information in the past, and counsel had indicated it was not needed. Again, opposing counsel is not required to make the SRL’s case for him, nor advise what he must submit as sources of evidence for his claims. But certainly, when it became apparent that the individual had information and did not know to bring it, the dictates of fairness would suggest that he be given time to do so. This obviously lengthens a proceeding and potentially increases costs, but at some point, we must recognize that cost and efficiency cannot trump fairness.

The fourth lesson we can take from this case requires a root and stem consideration of what information is provided to SRLs, and by who, when they seek direction from court administrators. Standard form answers are not sufficient – the entire approach to responses must change. Recognizing the often-overwhelmed situations of many court administrators attempting to navigate significant caseloads as well as backlogs, I would argue that there is a need for designated individuals who can respond to and assist SRLs coming to court with questions. This is not legal advice, but rather detailed information (not necessarily needed by lawyers) that allows SRLs to prepare as much as possible.

Finally, in terms of procedural fairness more broadly, the Court of Appeal in this case noted that, “what is fair in a particular case will depend on the context of that case.” There are some basic fairness criteria that we recognize exist in all decision-making processes; however, what might be required of the participants in a particular setting in order to ensure that those criteria are met will vary. Context is important – and those making and enforcing the rules must be cognizant of this context. In this case, the context involved an SRL who was clearly unsure of the process going forward, and who was ultimately subject to consequential orders ranging from custody to division of assets. In this instance, more context and care was required.