The Continuing Growth of SRL Jurisprudence: Two Encouraging Rays of LightNSRLP
There have been some worrisome developments recently in the jurisprudence concerning self-represented litigants – but also, in the last few weeks, two important rays of light.
Punishing self-rep mistakes with costs
Three weeks ago I wrote my blog on Dorey v Dorey, an Ontario Superior Court decision that imposed $15,000 worth of legal costs on a SRL who was judged to have intentionally and mischievously protracted litigation via multiple filings and exhibits, by not making an Offer to Settle, and her failure (framed as mendacious) to understand that two motions scheduled to be heard on the same day in her courthouse had a “disclosure-only” constraint.
I suggested that Justice Heather McGee’s decision in Dorey misdiagnosed the underlying problem – the overwhelming complex character of legal procedure for many SRLs, despite their efforts to “get it right” – instead punishing the SRL for imputed intentionality in her failure to resolve her child support case.
Even more egregious and unjust is the majority decision of the Alberta Court of Appeal in Pintea v Johns, (2016 ABCA 99) back in May of this year. Mr. Pintea, an unemployed disabled man who could not afford to pay for legal representation and was representing himself, was ordered to pay costs of almost $83,000 after he missed one case management conference.
Now the Supreme Court of Canada has given leave to appeal to Mr. Pintea, who is represented pro bono by Colin Feasby, of Osler Hoskins. The Supreme Court will be asked to consider “how much assistance should be given to self-represented litigants, and how courts should interpret and apply court rules and procedures to vulnerable self-represented litigants” (from the appellant’s factum.) The NSRLP is thrilled that this important public interest issue will now be heard by the SCC.
For a second ray of light, I turn to the recent decision of Justice David Price of in Watterson v Canada EMU, 2016 ONSC 6744. This is a careful review of the management of a small claims court trial in August 2014, where a SRL defended himself against a corporate entity with legal representation. The trial judge awarded the plaintiff almost $17,000 plus disbursements, interest and costs.
This result is entirely unsurprising given that the defendant offered no evidence at trial. So how did that happen?
Managing a trial with a SRL
At the August 2014 trial, the trial judge:
- Allowed the (represented) plaintiff to call witnesses despite not having given prior notice to the defendant.
- Did not inform the SRL defendant of his right to object to this.
- Asked the defendant if he would be testifying, and when he replied that his evidence was in his statement of defence, did not explain to him that this did not constitute evidence for the purposes of the trial.
- Did not offer the defendant an adjournment in order to call witnesses or prepare his oral testimony.
- Responded to the defendant’s stating that he was not familiar with court procedure by simply restating his question about giving testimony or calling witnesses, without any explanation of the import of these questions.
- Appeared to believe that offering an explanation or clarification on procedure would constitute “legal advice”.
- Stated in his decision: “[Mr. Watterson] confirmed he did not wish to take the stand. This lack of oral evidence weakened his case considerably. Perhaps he did not wish to compound his problems by giving evidence under oath that would not be accurate.” There was no reason given for this inference.
“A denial of natural justice”
Justice Price ruled that the trial judge’s failure to ensure that the procedural rules were followed and to advise Mr. Watterson of his rights, compromised the fairness of the trial and “resulted in a denial of natural justice”.
Specifically, failing to advise the defendant that he was entitled to object to the plaintiff’s calling of witnesses without notice; and failing to ask him whether he wanted to adjourn the trial so that he could prepare for cross-examination of witnesses, or to summon his own witnesses, or prepare to testify himself.
Justice Price cited Davids v Davids (1999, ONCA):
“Fairness does not demand that the unrepresented litigant be able to present his case as effectively as a competent lawyer. Rather, it demands that he have a fair opportunity to present his case to the best of his ability…It does require that the trial judge treat the litigant fairly and attempt to accommodate unrepresented litigants’ unfamiliarity with the process so as to permit them to present their case”. (para 37)
For example, “fairness requires the adjudicator to propose” an adjournment, even if a SRL does not explicitly ask for one (para 50).
Justice Price also stated that:
“The rules of fairness require the trial judge to ensure that the procedural rules are followed. When they are not been (sic) followed, the trial judge must advise a self-represented litigant who is obviously unaware of his rights, where necessary, of the procedural options available to him.” (para 39)
This is not legal advice – it is the necessary assistance a judge should provide to a litigant without counsel who is obviously (as the defendant stated explicitly) unfamiliar with legal procedure. As Justice Price put it, there is
“(A) fundamental distinction between advising a litigant as to what he should do and providing information to the litigant as to what his procedural rights are and what means are available to him for exercising them”. (para 43)
And finally, the court may draw an adverse inference against a party who fails to call witnesses, but “only where the failure to do is not satisfactorily explained” (para 52). The explanation here was obvious – yet the trial judge chose to impute a different, groundless and negative one. More denigrating of the SRL.
Justice Price ordered a new trial in Small Claims Court.
Tracking the case law
NSRLP is beginning to develop an annotated SRL case law database, with initial sections on costs, disability accommodations, declaration of “vexatiousness”, and procedural fairness.
We are stretched thin on time and resources, but my team and I feel that it is critically important to track these cases, and to bring the emerging jurisprudence to the attention of both the legal community and the public.
It is very disturbing to witness the way that some SRLs are treated in the courts by some judicial officers. Unfortunately, this is consistent with the data collected in the 2013 National Study.
But there are also signs that some individuals, both judges and lawyers, are working to develop a nuanced and balanced approach that understands the situation that SRLs face, respects the principles of procedural fairness, and will not use their punitive power to “kill the messengers” of an important social issue – the Access to Justice and affordable representation crisis.
 This expression was one of the most frequently occurring in a word and phrase analysis of our entire 2013 Study database, used repeatedly by SRLs in interviews to describe their behaviour and intentions.