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.
Great news in that particular case.
But what does an unrepresented party (SRL) do when the Divisional Court ignores procedural rights, Charter Rights and HUMAN rights?
I was appealing a small claims court endorsement which failed to deal with or provide sufficient reasons for breaches of legislated obligations, contract, charter and human rights.
The divisional court of Ontario then provide NO reasons and issued the following endorsement with 2 line ‘reasons’:
Appeal Dismissed.
Costs fixed at $7500.00
So what can be appealed?
It is my understanding that there is no appeal for COSTS ONLY.
Even if there were, how can anyone trust that the next court of appeal not provide another such ‘endorsement’?
Clearly one cannot afford one’s rights.
There MAY be a way to at least appeal costs alone:
Archbald v. Delisle / Baker v. Delisle / Mowat v. Delisle, 1895 CanLII 72 (SCC), 25 SCR 1
BUT AGAIN: What is the point of going to court, if my numerous authorities of Charter rights is not addressed?
Charter cases require a ‘purposive’ approach… the courts are to fashion a remedy
Where there is a right there is a remedy
A right is only as good as its remedy
A large root cause of such issues is the inappropriate and grey area of what constitutes ‘legal advice’. It is not legal advice to tell someone how a procedure works. Yet clerks, counsels, judges, etc. all abrogate any support by consistently saying that to describe or discuss a procedure is legal advice which they cannot provide. In fact, lots of helpful support is not provided with this excuse which, in my opinion, is most often given to avoid doing work, does not fit the idea of what advice is. I believe there is even one justice in Canada who has bemoaned how inappropriate the term is and how many problems it creates.
Clarify the definition of ‘legal advice’, such as telling someone the procedure of how to do something does not meet the definition or the intention to avoid risk. Then law society members and court personnel will be comfortable discussing things with self-reps and a lot of problems will be instantly resolved. Always seek the root cause.
If I’d had the resources to do so I would have long ago set up an operation close to Vancouver’s grand courthouse (in what I call the courthouse precinct) to provide the kind of information you are talking about. I would have done it, in part, to confront the law society. What constitutes “legal advice” is indeed a very interesting question. Ask a lawyer what day of the week it is and they might say that’s a legal question and so you’ll need to become a client (which involves paying a retainer) before they’ll answer it. I’ve been seeking what I call a bit of guidance about commencing a legal action. I think any number of lawyers could give me what I need off the top of their heads and in a matter of minutes. But there is no place I can go to get that assistance. Unbundled services? No. Pro bono? No. To get what I need I have to reveal that the party that will be the respondent will be the provincial Crown. Maybe that’s the key problem. Lawyers claim that taking on government is one of their chief roles. Well maybe so, but only when there’s a prospect of making a lot of money.
I have experienced unfair procedural justice. After being represented by a lawyer who intentionally filed late on 4 occasions I also learned months after as a self rep that he had not served my ex’s partners nor the other third parties ie. Microsoft until 2 months after the long motion. I attempted leave 8 times, I believe, and denied for procedural reasons and the Judges kept saying I needed to fulfill the the third party questioning and disclosure before I could get leave even though I kept telling them with the evidence the third parties were never served. I was pushed to trial without it and also told by the managing judge that I should know how to transfer my files to a usb stick because everyone does. I’ve been out of the work force for 20 years, I’m senior age, a caregiver, and I have never been in a job that required me to have expertise in IT skills. I’m still awaiting an order that will be judged on without concrete evidence of my ex’s business partnerships. I feel bullied, denied my rights to fairness, and disrespected.
I feel coercive abuse exists in our legal profession and this needs to be addressed.
In my opinion and experience, judges ‘point out’ problems that UNrepresented are responsible for. ( YES LSO uses UNrepresented! see https://lso.ca/about-lso/legislation-rules/rules-of-professional-conduct/chapter-5)
In my opinion and experience, judges have said:
When presented with filings by the lawyer that the judge could not follow: “Next time Mr. *LAWYER*!!!!”
(There was no next time for me… I was unable to argue the lawyer’s mess and paid costs to boot!)
When I presented numerous contradictions in the filings – the Judge remarked to the lawyer, “I saw how you restrained yourself”
Or words to the affect that I was somehow at fault for pointing out pleadings contradicted by affidavit evidence, previous pleadings and the counsel’s own associate lawyer….
Like you I am a senior, and when I requested accommodation in the ZOOM conference to record the proceeding, the deputy judge spent 20% of her endorsement ‘advising’ me of the consequences of using the recording, even in any appeal.
At the same time spent 1 paragraph stating, “the human rights issue was not included in the second amended claim – so I will not address that issue”
NB Of course the Human Rights issue was included.
Why a second amended claim, the trial coordinator rejected the first amendment, but I was not informed until a year later.
These comments are just a “word to the wise” – expect nothing, double check everything and … well in my case I was still disappointed.
I read all of he above statements, and agree, there is too much unfair procedural practice one example. other than late or no filing of documents by other lawyer in the courts, caught not filing them in motions…. In SCC asking if my TSC is in person , I was told in person, when I went to the empty court. I was in person , the judge and other respondent were virtual – the rules are hybrid in OCJ but you would think it applies to all parties. 6 yrs in family court is wrong. imho
( all i know is they could be exchanging notes) the camera was in front of me, the screen was to the side of me, so I could not look at the judge or other person when talking , it was awkward and unfair and the judge was leading in the questions she was giving . Abuse of authroity, happens when one person gets too much authority literally disregarding all the rules and laws . I will have to appeal the outcome due to already rule 13.1 not followed, this would be the second appeal. first one was a charter appeal to self rep. lets see what happens nov sittings. We must remember most judges ran their own law firm before becoming judges.
You attended a hearing in person and had to deal with a judge who was just a voice and an image on a screen? That’s exactly what George Orwell predicted. Why would anyone expect justice from proceedings conducted like that?
Actually, both judge and other party were on a screen…. I was the only one in person with about 6 clerks and a video camera in my face, the screen was on the side 🙁
Can you share with us any more information, e.g. the name of that judge and the courthouse you attended? It’s vitally important that we shed as much light as possible on how ‘justice’ is being dispensed. There’s nothing about me or my journey of litigation that I won’t share with the public. See for example everything I submitted that is now published by a government constituted review panel in this compilation – https://engage.gov.bc.ca/app/uploads/sites/121/2024/04/LRC-2024-Written-Submissions-eBinder-UPDATED-Apr-08.pdf (PDF pages 649 to 685). The details of what any one person experiences in these engagements are one thing. The culture of the legal establishment is another. Take a look at this article – https://doubleaspect.blog/2024/11/13/are-you-talking-to-me/ – published today. That is talking about the culture, in particular that of the courts that are putting more and more energy into trying to sell themselves to the public. I will be making another appearance before a superior court judge with a fresh case, and I intend to explicitly confront the culture.
I see good takeaways from the Court of Appeal’s Decision. They relied on what was said in previous hearings so without transcripts, even if it is 5-10 minutes get them! An opposing lawyer will be believed before you are. The Court relied on an email sent to the lower court’s office staff asking for clarification. Be aware that opposing counsel will attach emails and attachments to a motion confirmation and you may not scroll down that far in a PDF. Be certain to follow all practice and procedures in all Provincial and Regional Notices posted on the court website. Not only you have to adhere to them so does counsel. Without a transcript a court is entitled to presume the Decision is correct. Do not assume that any court, high or low, has read your materials. Attach any previous court orders or scheduling timetables to any motion confirmation. When you have an objection do not sit and wait your turn to speak as you are told to do. Put it on the record even if you don’t get to state what that objection is. Refer to the CJC Handbook for Self-Represented Litigants, although where it says you get to speak first to your motion, and will give a reply to opposing arguments do not believe it. The court and the counsel will mount their horses and draw their swords, the only thing missing will be the drum roll and trumpets blowing like the theme song One Tin Soldier from the 1971 Billy Jack movie. The scene from that Billy Jack movie where the degradation takes place at the ice cream shop is something like you are going to experience. There will be no Billy Jack at your hearing to throw any offender out a window so you better have thick skin.
Excellent comment! 6 years into civil court, 3 defendants all fully funded by insurance companies, my first in person motion for refusals and undertakings dismissed due to a noncompliant with the rules document. I paid a lawyer to review the motion that took a month of my life to prepare, he approved everything, it was fine, except the one document. I asked for adjournment to produce the correct document. Denied. The past 6 weeks, 11-hour days completing a motion for leave to the divisional court for permission to appeal. (Tried over 20 law firms to hire counsel – no luck) The test is so stringent that leave to appeal is rarely granted. My Judge yelled a lot, at me, cut me off so regularly that my transcript from motion is full of incomplete sentences. I agree. Expect nothing – double check everything, do your homework. Sadly, the culture to believe the lawyers over the self represented prevails no matter how much ‘evidence’ you present. The evidence must be read and analyzed, or it doesn’t exist. Don’t assume they read everything you submit (judge complained about the mountain of paperwork)- Lawyers of course opposed adjournment, despite knowing of my noncompliant document for 3 months before the motion they produced reply’s to, then relied on the absent document to have motion dismissed (conflicting interests) Now they are seeking costs against me. How do they justify this behavior? A criminal is treated better – at least criminally charged get their day in court. I pray my leave is accepted or 6 years of work is gone. The decision without any analysis or measure of issues during the motion ruled I cannot seek answers, information or further discovery, so how then does one plead their case? How can Justice be denied because of the absence of one document?
I am dismayed to hear something like this. I thought maybe the judges would be learning by now. It’s been more than a decade since my courtroom experiences ended. Long before that I had lost all faith in the judges, let alone the lawyers. Why aren’t they learning? I think it is an abysmally unhealthy culture and additionally I think they know the whole system is in very serious trouble. Maybe judges do have to work hard and are denied the resources they need. Maybe. But if so there is no justification for taking that out on anyone else. And they certainly aren’t underpaid. I’m in the process of returning to court with a case that is in no sense a rehash of my previous litigation but is informed by it. I won’t take any abuse this time – from anyone. I’m going to be arguing something they may not have heard before – that the courts are ‘captured’ (see this book – https://tobinproject.org/books-papers/preventing-capture) by the bar. I might even cite what the current president of the Canadian Bar Association, Lynne Vicars, had to say here – https://www.nationalmagazine.ca/en-ca/articles/people/q-a/2024/building-trust-in-justice, which I do not accept.
The twelve comments to the previous blog post include one dated September 16 by me in which I mentioned the Globe & Mail and included this link – https://www.theglobeandmail.com/authors/sean-fine/. Just four days later the Globe published a feature article (three entire pages in the ‘Folio’ section) that everyone should read (scroll down there, but you’ll need a subscription). Mr. Fine is identified there as the Globe’s Justice Writer, though it appears that may have been his last article as a Globe & Mail journalist. Another Globe journalist, David Ebner, is now identified as their Justice Reporter – https://www.theglobeandmail.com/authors/david-ebner/. Perhaps Mr. Fine is still employed in some capacity at the Globe but that is not clear. Mr. Ebner has heard from me and I’ve heard back from him.