This week’s guest blogger is NSRLP research assistant, Ashley Haines. Ashley is finishing up her first year of law school at the University of Windsor, and has been working for us on our Case Law Database project, where this case came to her attention.
For several years, NSRLP has been concerned about the apparent ease with which a represented party can seek and obtain a summary judgment or motion to strike against an SRL. This tactic appears to take advantage of minor procedural errors by the SRL to apply the ultimate penalty – ending their case.
Recently in Wouters v Wouters (2018 ONCA 26), the Ontario Court of Appeal held that a motion judge improperly struck the factum and pleadings of a self-represented litigant (SRL). The Court decided that when a party is self-represented, the judicial standard for document compliance should be different from reviewing a lawyer’s submissions, in a finding reminiscent of Pintea v Johns (2017 SCC 23).
The Court held that when dealing with paperwork submitted by an SRL, judges should still review documents, even if they don’t meet the standards established by the court, in order to determine whether there is material in the non-compliant documents that should still be considered, and to provide the Court with a more complete picture of what disclosure remains to be provided. Further, judges should always consider alternatives before resorting to the ultimate penalty – striking an SRL’s pleadings.
Background
The parties had been involved in contentious divorce proceedings since February 2008. On November 22, 2016, the Respondent wife (who was represented by counsel) brought a motion seeking to strike the SRL husband’s pleadings for failure to provide financial disclosure. This summary judgment procedure would prevent the SRL from continuing in the action by removing all of his documents and pleadings from the court record.
At a hearing on February 1, 2017 (Wouters v Wouters, 2017 ONSC 1241), the motion judge agreed to strike the SRL’s pleadings. The motion judge also refused to let the SRL call oral evidence from his accountant to explain his financial disclosure. The SRL was blamed for significantly delaying the proceedings and the judge described this as an “exceptional case” [para 29] that required the SRL’s pleadings to be struck. Our NSRLP research suggests that this is not so exceptional – but what happened next?
Not So Fast with that Motion to Strike….
Family law specialist Jennifer Suzor took the appeal on behalf of the former SRL to the Ontario Court of Appeal. The Court allowed the appeal, and said more about how courts should approach apparently non-compliant documents filed by a party who is self-representing.
In this case:
- The motion judge should have reviewed the SRL’s factum to see if some of the necessary information was there, and;
- Despite the fact that the SRL had not properly notified the other side, the judge should have allowed the oral evidence of the SRL’s accountant in order to get a better picture of what disclosure still needed to be provided.
Furthermore, this requirement had not been included in the motion judge’s handwritten endorsement or in the hearing transcripts. How was the SRL supposed to know that this was expected of him?
The Court of Appeal remarked that, “the motion judge never grasped, or even entertained, the husband’s point that the handwritten endorsement did not say the letter should be sent to the wife’s counsel – or the husband’s position that he had filed the necessary letter with the trial coordinator” [para 35].
The Court also held that the blame for delay in this matter was unfairly placed on the SRL. The Court stated that, “this is not an accurate characterization of how the case progressed” [para 41]. SRLs are typically blamed for any delays in the progress of a case. And sometimes, of course, they may be responsible – but we often see cases in which delays are caused by a represented party. Delays caused by an SRL are often the result of their unfamiliarity with procedure, and not an intentional strategy.
In Wouters, the Court of Appeal found that many of the delays in the case were the result of actions – or inaction – by the wife’s counsel. In the final analysis, the Court of Appeal found that in this case, delay was attributable to both parties.
The Court allowed the appeal and made a new order.
What Wouters means for SRLs
The Court of Appeal held that judges should be flexible when dealing with non-compliant documents submitted by SRLs, in order to ensure that admissible portions are considered. While financial disclosure remains the most basic obligation in family law matters, they urged that pleadings should only be struck after all alterative remedies are considered. This judgment is a recognition, perhaps, that summary judgment procedures have come to be used too frequently and liberally, merely to halt cases involving SRLs.
SRLs still get stereotyped by the judiciary. When judges assert that SRLs are wasting court time, or label them as “vexatious”, this may preclude fair consideration of the merits of the case. In Wouters, the Court of Appeal cautioned the lower court that due process requires the careful consideration of the merits of all documents, even if that material as initially submitted by an SRL does not comply with court rules. The Court of Appeal suggests that in the pursuit of greater procedural fairness for SRLs, there should be flexibility in the application of Family Law Rules and the Rules of Civil Procedure.
this is very good. I must ask , for the cases that are previous to this ruling, how do we deal with our cases to put aside the summary judgement and vexatious ruling? I do not know what to do. there are cases now that could have been helpful to me when I was being thrown out of the courts. But none then. I asked for repeatedly, the opportunity for full discovery of the file, and the participants, I asked for orders, and I booked the room for discovery. I paid for the room. I produced this for the courts, when I notified the opposing parties lawyer of this discovery date . the file was transferred out to another court district for a hearing on the very same day as the discovery, without notifying me, I was not aware the case was being heard, I was waiting at the original court for the discovery to begin, when I reappeared at the ORIGINAL court with a new case filing, I was thrown out by summary judgement, and labeled vexatious. I am aware this was a very disreputable way to get rid of my case, but that just didn’t seem to matter to anyone. How do I now make the cases like this one, applicable to my case and get an actual chance to have some sort of justice?
if a judge is bias then he is committing criminal obstruction of justice in criminal conspiracy with the lawyer the court of appeal should have ruled-until that is done we will never be able to use the courts.
it would have been interesting to see how this appeal would have gone had a lawyer not helped-so this ruling is only good if you have a lawyer/lawyers have o monopoly on court use.
unless this case goes to SCC it will be of no value to the rest of canada-a newsreel media story on Ivan Henrysaid “the judge intentionally labelled Henry vexatious so he would not have a chance to appeal to SCC-the SCC automatically reject the vexatious”i am trying to figure out how this is done-in my case the ns attorney general defence lawyer had been on my case for years then one week before i sent in my SCC appeal books she wrote me and said she had moved to the SCC office where my books would be ariving !!!!!!! i reported this to the SCC but my complaint was ignored-so did the NSAG lawyer get ahold of my books and change them so SCC judges never seen my arguements-thats how bad they dont want SLR’s to use the courts !!!!!!
Quote; “SRLs still get stereotyped by the judiciary. When judges assert that SRLs are wasting court time, or label them as “vexatious”, this may preclude fair consideration of the merits of the case.”
Ah’ the fatal arrow, being labelled by that “Vicious word Vexatious.”
When a Judge refuses to require the Applicant produce the Cheque Stub proving Income of $302.oo per month, with $261.oo of Deductions. My, my what Nation’s Federal Revenue, Payroll Deductions, has such an Excessive Deduction Schedule on [SSAG, Spousal Support Advisory Guidelines] which is used on the Form 13.1 Financial Statements, which are Sworn and Affirmed Documents.
Is this not “mens rea” intentional perjury?
whether it is or is not perjury, I have seen the courts ignore this totally. The lab I was dealing with claimed to be regulated by the college of physicians and surgeons. I contacted the college, who said they did not. I submitted the response to the court, the original claims had been made in a sworn affidavit, this was completely ignored by the courts. no one said a word about it. The lab then just changed the story to another answer. and another. it was like playing round and round the hill we go.; getting a straight answer, not possible. And yet, no response from the court. call it perjury or anything else you want,, if the court doesn’t care, just try to protect yourself from false evidence. Can’t do it. not without the help of the court, And as previously stated,. they don’t respond or seem to care.
Considering how often trained lawyers file deficient document that I so often point out when I was the SRL and judges just turn a blind eye. Lawyers also use the tactic of not properly giving notice to SRL and still get away with it.
I have one case where two judges told the lawyer to go and settle the case but they never did. Usually a different lawyer took over. In one instance the case was under case management and the lawyer just went to another judge without giving me any notice and next thing I know my case was dismissed. The rule said the Case Management Justice must hear all applications on the case but not in my case
SRLs cases get dismissed for the least of reason and often made up reasons. Once a judge got angry at me because the lawyer said she is in the habit of filing last minute. The judge behaved as if I did something wrong by giving them all the time to decide whether I have to take them to court
Sandra – someone wrote me something today about the Limitations being changed in 2014. I have to admit that it was completely over my head. He said the defense quashed him on the limitations in his medical malpractice case. He went through a series of motions and then this month he won his appeal because there was a change in the law on that in 2014.
I asked him to send it to Julie because she would understand it.
I will send him this blog post and ask him to please explain what he knows here because that was all I understood about what he was saying.
Sorry I am confused and can’t be more help. I do not want to get your hopes up just to have you retraumatized but I do wish you the best.
Litigator Procedure games- Was in a situation where the litigator submitted court dates that were never registered and approved by the court! We had no idea that the court dates needed a seal of approval from the court!!
Only caught this “mistake” because another kind legal person reviewed the file and suggested that the court date needs a seal of approval . (Not sure of the correct legal term)
Really sad part is this estate litigator and client laughed at the family member (age:70 plus years) that actually appeared at one of the false court dates.
I am soooo grateful to this “first year” law student! Ashley Haines, you have so much potential ahead of you. Thank you for this! I have…and will continue to…use this case.
Love the NSRLP xo