Not De Cruz – but the SRL Case You Should Have Been Paying Attention To This WeekNSRLP
Two cases came down on March 27, 2015, one in Ontario and one in Saskatchewan.
Please can the news report the significant cases (and not just the salacious ones)?
A “meaningless” (against a “judgment-proof” party) costs award in the divorce case of De Cruz v Lee (2015 ONSC 2012: www.canlii.org/en/on/onsc/doc/2015/2015onsc2012/2015onsc2012.html) was widely covered in the press and on social media this week.
The reason for the media frenzy was the graphic and saddening personal details of this Ontario Superior Court case, which culminated in a nine-day trial. Combined with the scathing words of Justice Skarica in the endorsement for costs, this proved an irresistible temptation for both mainstream and legal press (for example, www.thestar.com/news/gta/2015/04/08/judge-blasts-woman-for-immaculate-conception-tale-in-property-dispute.html www.lawtimesnews.com/201504064586/inside-story/monday-april-6-2015).
I asked the journalists who contacted me for comment about De Cruz why they felt that a case exposing the collapse of a marriage and perhaps a person’s emotional wellness was “news” – and why they were not covering a really important judgment (Hope v Pylypow (2015 SKCA 26: www.canlii.org/en/sk/skca/doc/2015/2015skca26/2015skca26.html) handed down the very same day.
Of course the details of a dispute over a road construction project are less likely to peek our interest on the front page of our morning newspaper than the sad details of the De Cruz case. But as I shall explain in this blog, Hope shines a light on the systemic barriers being raised to ordinary Canadians who are trying to use the courts without legal counsel.
So De Cruz went viral, and Hope went ignored.
In a surely hopeless effort to redress this, I am devoting this week’s blog to the story and the implications of the judgment of Chief Justice Richards of the Saskatchewan Court of Appeal in Hope v Pylypow.
Evolving rights – but what about fair process?
The important principle established in Hope is that SRLs can be awarded costs beyond their out-of-pocket expenses for their time and work on the case. It brings Saskatchewan broadly into line with other provinces (see for example Bergen v Sharpe and http://drjuliemacfarlane.wordpress.com/2013/11/30/bergen-v-sharpe-and-srl-costs-the-long-and-the-short-of-it/).
The gradual development of jurisprudence on awards of costs to SRLs is critical to restoring one aspect of bargaining equality where a SRL faces a represented party. If a represented litigant had no risk of being ordered to pay anything beyond disbursements when up against a SRL, whereas the SRL took the chance of being ordered to pay substantial legal costs to a represented party, there was a fundamental imbalance between the parties (well explained in para 57 of Hope). Chief Justice Richard’s clear thinking on this important issue is very welcome.
But important for different reasons is the three-quarters of the C.J.’s judgment which excoriates the Chambers judge who struck out the pleadings of the Hopes (a self-represented couple). This exposes the strategies being used by some legal counsel in bringing motions to strike against SRLs. It also describes the presumptive bias some adjudicators appear to show when asked to deem SRLs “vexatious”.
The motions strategy
At NSRLP we have started to notice – as have others – that where the other side is represented by counsel, SRLs are commonly brought to court by for a pre-trial motions hearing, and often to strike. A quick search in Can Lll for 2014-15 brings up 51 cases involving a SRL where summary judgment is sought, virtually all by represented parties. In 47, summary judgment is granted or upheld on appeal (our data collection on this topic is continuing).
SRLs often come to these hearings without understanding that this is not a full adjudication of their conflict – even with the new Ontario rules (below) – but focuses on the grounds for summary judgment. Even where the motion is refused, the SRL is often left confused and aggrieved.
Allowing claims without a basis to proceed is a waste of judicial time (and everyone elses’s). A motion for summary judgment allows a party to obtain judgment expediently in cases where there is “no genuine issue for trial”. The Supreme Court of Canada in Hryniak v. Mauldin (2014 SCC 7) saw the temperate use of summary judgments as a way to close down unsubstantiated suits and free up court time for meritorious issues. New rules in Ontario empower judges if necessary to “weigh evidence, evaluate credibility and draw reasonable inferences” in determining whether or not there should be a full trial. The Supreme Court sees the goal of the summary judgment process as “a fair and just result” and serving “the goals of timeliness, affordability and proportionality.”
Does Hryniak give encouragement to SRLs to fight and appeal all summary judgments brought against them, or is there a risk of this judgment being used to shut down individual legitimate claims?
How the story began in Hope
In 2012, the Saskatchewan Municipal Board (SMB) ruled in the Hopes favour in a conflict with a municipality over responsibility for road realignment adjacent to their property. The municipality was ordered to undertake the road construction project “in a timely fashion” (CA, para 7). A second planning dispute was also resolved in favour of the Hopes by the Small Claims Court, but their recovery of overpaid fees in that case was ruled ultra vires (“beyond the powers”) of the court.
The municipality did not carry out the work stipulated in the SMB’s servicing agreement, nor did they return the overpaid fees. Clearly words were now flying back and forth between the parties in the local press. In 2013, the municipality sued the Hopes for defamation, and the Hopes subsequently defended and counter-claimed. This was the Queen’s Bench action that was the basis of this appeal.
And this is when the motions strategy began.
No reasonable cause of action
The municipality argued that the Hopes claim did not disclose a reasonable cause of action – that is, they did not present a legal “wrong” in their pleadings. Elson J. agreed that there were technical defects with the Hopes pleadings, but set out what they needed to do in order to rectify.
The Hopes refiled an amended set of pleadings.
Scandalous, vexatious or frivolous
Next, the municipality filed a motion to have the Hopes claim struck as scandalous, vexatious or frivolous (for example, lacking in substance, in bad faith). This motion was heard by a Chambers judge who agreed, accepting the municipality’s argument that the Hopes “four” legal actions were part of a “pattern” of abusive litigation (including their successful application to the SMB and their win on the facts in the Small Claims Court).
He went further to contradict Elson J’s decision on cause of action (the Hopes had left out a comma in their amended pleadings, which the Chambers judge stated meant that they had improperly pleaded, again).
Their claim struck, the Hopes must by this point have been wondering how they had found themselves in this Alice in Wonderland nightmare.
C.J. Richards to the rescue
The Chief Justice details the injustice done to the Hopes by the Chambers judgment. He stops short of calling out the municipality’s strategy in bringing these motions to strike, but he makes their arguments – and the willingness of the Chambers judge to accept and even embellish them – look like an attempt to deny the Hopes fair process.
This case provides a lens on how motions to strike proceedings brought by SRLs are being dealt with by some adjudicators, apparently acting under a presumption that where parties represent themselves are somehow by definition – rather than in fact – vexatious. The Hopes had legitimate complaints against the municipality that earlier adjudications had recognized. They had received no redress, only a suit against them for defamation (they were not the initiators of the original defamation suit).
As C.J. Richards writes,
“In relation to the cause of action in issue here, I understand (Mrs. Hope) to explain that she and Mr. Hope would not have sued the respondents if they had complied with the SMB ruling. That is, on its face, an understandable explanation for the litigation. It is not a basis for striking a claim as being scandalous, vexatious or frivolous.” (para 42)
C.J. Richards also pointed out that the Chambers judge had wrongly equated “vexatious” with no cause of action; contradicted Elson J. in saying that there was no cause of action; ruled that the Hopes committed “abuse of process” but this was not included in the respondents pleadings; and in the absence of any finding of fact, nonetheless stated that the Hopes affidavits were in bad faith.
Down the rabbit hole
This is an impressive judgment, frank and detailed, and for the Hopes perhaps has restored some of their faith in the justice system.
But the rabbit hole that they have found themselves down for the last three years is full of a lot of other SRLs. Some of the delays and injustices they experienced are the result of an immensely complex and under-resourced legal system – others are the consequence of unintentional and easily made mistakes.
But some of the delays and injustices they experience are the results of a motions strategy that imprisons them in technicalities, and leaves them and their case in the weeds.
No reasonable person would argue that a nine-day trial in De Cruz was an efficient or appropriate way to resolve that matter. Apparently the rules against scandalous, vexatious and frivolous actions did not operate to spare those involved that miserable experience.
Yet they are being used against SRLs like the Hopes who do have legitimate grievances, with the complicity of some adjudicators.
How did we get here? And more to the point, how do we find our way back?