We are delighted to bring to your attention a recent decision of the Ontario Court of Appeal in Moore v. Apollo Health & Beauty Care (2017 ONCA 383) by Justice Brown of the Ontario Court of Appeal that that applies the landmark decision in Pintea v. Johns (2017 SCC 23). The Supreme Court of Canada’s unanimous decision in Pintea endorsed the Canadian Judicial Council’s Statement (henceforth “Statement”) for dealing with self-represented litigants (SRLs), and implicitly acknowledged the procedural challenges faced by SRLs.
In Apollo, Ms. Moore sued her former employer, representing herself throughout the proceedings and advancing two claims. She claimed that her employer fundamentally changed the terms of her employment and, as a result, constructively dismissed her. Her second claim was that her former employer failed to pay her wages for several statutory holidays and sick days.
The trial judge, and later the Divisional Court, dismissed both her claims. The second claim for damages for unpaid wages was denied because the appellant was deemed to have abandoned it.
Writing for the Court of Appeal, Justice Brown went through an in-depth analysis of the trial transcript. His central finding was that “(W)here the evidence of a self-represented party raises a question in the trial judge’s mind about the specific relief the party is seeking, a trial judge must make the appropriate inquiries of the party to clarify the matter” (para 47). When Ms. Moore was presenting her evidence to the trial judge, she used examples to illustrate instances of unpaid wages, including daily lunch breaks. The transcript shows that the trial judge asked whether she would provide accounting for unpaid lunch breaks and if not, he “hoped” that she wasn’t expecting compensation for them. Ms. Moore said no, adding that she did not expect compensation for lunch breaks. The trial judge, and later the Divisional Court, ruled that Ms. Moore had effectively abandoned her claim in relation to the unpaid wages.
Justice Brown concluded that the trial and appellate judges did not assess this one short statement made by the appellant in the overall context of the evidence she was presenting. He concluded that the judge at trial did not make sufficient inquiries, and misapprehended Ms. Moore’s statement, when this error could – and should – have been easily avoided by asking an additional question. This duty to ask an extra question or questions in order to understand the claim being made by a SRL is crucial to a judicial response to what Justice Brown calls the “new reality of civil litigation” (para 41). “Trial fairness requires no less” (para 48), Justice Brown states.
Justice Brown cited Pintea v. Johns and quoted from the CJC Statement at length in his judgment. Referencing the Statement, he described the responsibility of judges to inquire into whether SRLs are aware of their procedural options, and if they are not, to direct them to the available information and to ensure that such assistance is provided prior to making crucial decisions. Justice Brown also talked about the challenges faced by SRLs navigating through “complex, confusing and intimidating” court procedures, as well as the responsibility of judges to “meet the need for simplicity” for SRLs by providing a non-prejudicial and engaged courtroom to ensure that their rights are equally protected to those of represented persons (para 44).
The judgments of both lower courts were set aside and Ms. Moore was awarded damages for unpaid wages. Not only was this a personal victory for Ms. Moore, but this decision represents an important milestone on the road to our judicial system cooperating with, assisting, and protecting the rights of SRLs.
(Written by Margarita Dvorkina, NSRLP Research Assistant)
Congratulations!
YES a great step BUT – Yes there is a but,
I was self-represented and brought this to the attention of a LAT adjudicator.
I quoted the SCC and gave her the CJC statement of principles – at the START of my hearing.
After taking a few minutes to read the CJC the ADJUDICATOR stated:
“This IS NOT RELEVANT to this matter.”
She had swore me in, so ALL my arguments were under oath.
TWO opposing counsel – big name professional lawyers, were NOT sworn in.
Adjudicator did not enforce Rules of Tribunal. Both counsel were late – in contempt of Tribunal orders of disclosure and orders for particulars.
Adjudicator always asked “What is your prejudice if they are late filing. They did not provide pleadings, etc…”
Adjudicator would not follow CJC to permit altering order of presentation or evidence, or other requests I made.
Adjudicator allowed a “motion to strike” to be heard – without notice or affidavit.
Adjudicator allowed other parties to delay opening statements, and to not present pleadings – until AFTER I had completed all my submissions.
At one point I was not permitted to read from my authorities – I was drowned out by two other lawyers AND the adjudicator!
Pintea v. Johns is a good start but it still did not come to fruition by the court actions of a “self-represented” litigant. It took an empathetic and sympathetic lawyer like Colin Feasby to raise the CJC “Statement of Principles” to the consciousness of SCC.
As a self-rep. I raised the CJC “Statement of Principles” in several hearings and was totally ignored.
My point is that there is an inconstancy depending on the Judge, Ms. Moore was fortunate to get a Judge as conscientious to “Justice” as that of Justice Brown.
On this point “The Law” are rules, guidelines and procedures where on the other hand “Justice” is a concept derived from the word “just”. “The Law” and “Justice” are miles apart!
As self-reps we go to Court seeking Justice, in other words, we want to right a wrong but “The Law” i. e. “Rules and procedures” very often impedes our quest for Justice!
It’s good to see a Judge like Justice Brown’s judicial administrative skills moving towards actual “Justice” and was not bogged down with “The Law”.
In closing, when self-reps expect access to justice (a2j) maybe this ought to be saying “you’ll never get a2j until you know The Law” which essentially is a roadblock to “Justice” more often than not for SRL’S.
judges have a responsibility to be sure we know our procedural options-but if they ignore their responsibility you cant do a thing about it,the scc wont hear a case like that again until large numbers of judges ignore the SCC ruling-which is what an SCC judge wrote on how to get SCC leave.
In N.S. 100% of judges said they don’t like dealing with SRL’s so in your summary judgment nsrlp paper you said we don’t understand what is going on when fighting summary judgment/vexatious cases against us-will your SCC ruling help us now?AND it is a lawyer responsibility to not hide case law like your SCC ruling that hurts lawyers/helps us so if a SRL cant find your SCC ruling and the judge ignores it because he knows you don’t about your scc ruling I see the injustice still going on.
you don’t have to print this-as a lawyer you don’t seem to understand what actual problems we face as SRL’s-in court there is no one there for us to make sure justice is served-lawyers never give case law that hurts them even though nsbs rules force them to do that.In my case judgment recovery was ruled not a gov. agent even though it enforced the motor vehicle act FOR the gov.,but hidden by j.r. lawyers was a ruling j.r. was a gov. agent and they never appealed it.Then I noticed no one ever went to my court hearings and noticed my hearing wasn’t posted to the public-when I complained about no open courts they then posted my hearings-its stuff like that that goes on.
because we don’t know what is going on judges/lawyers take advantage of that.
NO analysis-in a summary judgment ruling where they had a lawyer the judge did full analysis and even told the lawyer how to fix the problem,in my case there was no analysis/help.
The real problem is judges don’t want to help us win because too many lawyers would lose their jobs.
I would like to hear you comment on the N.S. GRABHER license plate case-2 women complained and our newspaper insulted them so I complained-I said maybe the2 women were rape victims and seeing grabher caused PTSD or they just care for rape victims.and I said its not how reasonable people see it,its how unreasonable see it and think its an ok thing to do,so there are limits to freedom of expression and Grabher ignores the fact that 500,000 per yr are raped so have ptsd that his name can trigger.