The Continuing Growth of SRL Jurisprudence: Two Encouraging Rays of Light

The Continuing Growth of SRL Jurisprudence: Two Encouraging Rays of Light

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”[1] – 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.

Procedural unfairness

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.

[1] 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.

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Comments (25)

  • allen

    Dr Julie McFarlane, I wonder if it is possible that I could volunteer in any way with NSRLP. For instance many I know of some serious instances of violations against SRLs that should boost your database and could help these SRL to tell you their story. I have many instances of abuse of my own

    Let me start by providing you an instance before the Court right now. Are you aware of the processes at the Alberta Court of Appeal? That court should no longer be seen as an appeal court or a court at all if for no other reason the gate-keeping rules enacted since September 2015 (maybe 2014):

    Litigants literally need permission to appeal just about everything one would normally appeal (cost for example. What the chance of an SRL getting permission? Nil to a negative number)
    Applications regardless of the stated rules must be made to a single judge sitting so although the rules say issue of merit must be heard by a panel, good luck with that for the litigant has to go to a single judge at least 2 times before the possibility of getting their application to a panel. The clerk bullies SRLs on this-refusing to file their application too unless they agree
    When the single judge makes the decision on issues beyond a single judge;s jurisdiction, the applicant especially the SRL has to appeal to that single judge sitting and only gets to the panel if that single judge allows that appeal. ( Let me repeat, the single judge hears an appeal of his or her own decision and decides whether the applicant can appeal to any other judge/panel before the litigant can have it heard by any other judge (this is happening in Canada)- I need not mention the unnecessary cost contrary to the foundational rules that require quickest and cheapest process for all litigants

    It is normal of MAsters to decide cases outside of the jurisdiction given to them by the Court of Queens Bench Act

    It is normal for Case Management Judges to give orders outside of their jurisdiction provided by the rules of Court among others legislation and because SRLs do not usually know that the “judge” siitng has powers according to wht he/she sits as in court-In other words SRLs do not know the difference in powers of the judges who appear on the bench-in court. SRLS thonks a judge is a judge. The judges especially the MAsters take advantage of that.

    Most of the orders, at least in Alberta courts are illegal and thiese illegal orders run from small Claims Court to Cour tof Appeal. It si serious. Any SRL who dares to pfigure htis out is immediately declared VEXATIOUS TO KEEP THEM QUIET

    I can honestly say the realit is that in Alberta, theer is no rule of court regardless of what any body says
    Lawyers take it as a sport to file applications (mainly pointless ones) in a case and do things for instance refusing to provide document when SRLs ask for them and that they would just give to their colleagues then if the SRL ever files more thna one application (and even one) the judge declares them vexatious and hits them with costs. Even worse the judge now has the SRL in a choke hold so they cannot pursue their case. Then the same judges dismiss for want of prosecution

    I could go on and on

    November 22, 2016 at 11:31 am
    • Twechar

      Very good Allen,
      You echo my feelings and experiences exactly.There is no doubt that we have a systemic problem in the Alberta judiciary in layers and layers that must be changed.

      Notwithstanding, there are some upstanding judges who are empathetic and sympathetic to the humane side of the law. For example,I did notice that one judge dissented in the egregious Pintea v. Johns decision for the $83,000.00 costs award.

      November 25, 2016 at 4:09 pm
      • sandra olson

        one judge is good, but not much good if he or she is the minority. in my case, they assessed 35 thousand dollars against me. judged me vexatious, and kicked me out of court. mocking and ridiculing me all the way. when it was pointed out by me , that my child bears a very distinct likeness in appearance to the man i claim is her father, contradicting the dna test, all of this commented on by the court of appeal, the lawyer for the opposition stood and declared that looks do not count. i have no idea what scientific basis this rests on, but the judge just agreed, assessed triple costs against me and threw me out. So, while one judge may have a differing opinion, odd that this one judge never seems to be able to carry the day with their judgement. it always seems to be the people deciding to punish the self represented for speaking up, who end up with the decision that actually gets into the ruling,.

        November 28, 2016 at 6:53 pm
        • Derek Thompson

          So Sad but absolutely true . It is getting worse each day & the ministers will not even respond to us . Perhaps we better start picketing the Legislature grounds !

          December 2, 2016 at 12:59 pm
    • Twechar

      Please forgive my disrespect but there are too many judges that are uneducated in law.
      It has become a social club and the true meaning of law has lost its way. Impartiality must be restored but nobody seems to give a damn!

      When did we get to this stage in jurisprudence? Was it an “untouchable” environment that ..
      Hey I’m a judge till I’m 75 and I can rule any which way with impunity? C’mon Canada, c,mon, Trudeau we can do better than that! Or can we?

      November 25, 2016 at 8:19 pm
      • sandra olson

        i forgot to mention. this order for triple costs and a vexatious ruling was made, AFTER THE COURT HAD ALREADY DECLARED ME INDIGENT. totally broke. no money., and the court STILL issued this ruling. you cannot tell me this is right.

        November 28, 2016 at 7:44 pm
        • Derek Thompson

          So True . The Judges punish all good SRL now . ( We had to become good as we new we were being taken advantage of & had to prove it !! ) The hate it that we can identity how bad they are & in what areas or How they twisted things to work in favor of the Lawyers or Big Companies .
          The message is getting out there but is there any politicians listening ??
          Perhaps a Canada wide petition is what we need now . What do you all think ?

          November 29, 2016 at 11:29 am
        • Twechar

          This “security for costs” ruling ought to be challenged as unconstitutional against individuals when they are broke or have zero assets,or altogether assets or no assets.

          Why do The Courts think we are self-representing in the first place? It’s because we are financially strapped!
          Think about it,under these circumstances the “security for costs” ruling is being used as a form of “extortion” if you check the definition of “extortion” in The Criminal Code of Canada. It’s solely used to block our case from advancing and put and end to the litigation.

          How can someone who is indigent without any assets etc. possibly be receiving “equality before and under the law and protection and benefit of the law” Sec.15 Charter of Rights and freedoms when they’re up against an opponent with lots of financial resources?

          Check out Sec.15 in the Charter…maybe a Charter challenge at the Supreme Court or start a petition because I agree with you this “security for costs” for individuals is a scam used to clear the court dockets of SRL’S who have zero financial resources .It is ridiculous!

          November 29, 2016 at 12:05 pm
          • sandra olson

            i would love to take this back to court. i cannot find a lawyer willing to do it. nor can i afford to pay a lawyer. i need someone who is also appalled by this court behavior in bc and would like to stop this abusive of the public. lawyers seem to support what has been done and what is still ongoing as an abuse of the public. how the courts can issue an order for triple costs and a vexatious label against a self represented litigant on welfare, just does not follow the principals of justice. i would love to overturn this, if anyone comes to mind as someone willing to help,, let me know. until then, the court wins. and their despicable behavior continues.

            November 29, 2016 at 6:36 pm
            • Derek Thompson

              I believe that you / all of us , should sent a recorded letter to both the Provincial & Federal Minister to make sure they know what is happening & what needs to be changed . Our Next step would be, to do a Canada wide Petition to stop Security of costs . I believe the only place security of costs should be applied is the Parent Organization & or Corporation that is out side of the country wanted to defend an action then they would have to put up security for costs & all costs awarded to the parent organization & or the corporation would be in the cause . This should cause settlement as opposed to long drawn out pricey court procedures. Protection for the people for once, as even if you do win an out of country defendant it could be very hard to collect .

              Can anybody start a petition for us ? & train us on how to do it legally for future changes needed .

              November 30, 2016 at 1:02 pm
          • sandra olson

            this is not in my opinion a “security for costs issue”. this is about using the courts to punatively attack the rights of the people to even approach the courts. the issuing of vexatious orders, to kick you out the door. as i mentioned before, it is impossible to determine the MERITS of a case, without the full discovery of the evidence process. in my case, and in a good many others, this process is not allowed. The issuing of court orders for costs, triple costs or however many times costs, is not about the merits of a case, it is about punishing the self represented for showing up without a lawyer. The courts are supposed to be without barrier, free, open to anyone with an issue that is in need of a legal solution. it is not that if when you get there, you are fined to death for showing up, and determined to be vexatious without the benefit of full disclosure. the dna labs have fought tooth and nail to avoid disclosure, and refuse to answer any questions even though now i have an experts report pointing out errors and false statements everywhere, as well as proof the lab has been sharing work and report evidence with at least 2 other labs. who then fabricated the work to support the first lah. i have an expert report proving this. Your would think the lab would have some interest in explaining this, not. And our courts do not want to charge anyone. i have forwarded this to the minister of the attorney general of both BC and Canada. NO INTEREST. this leads me to believe these organizations have long known the problems with these dna labs, and just want me to shut up and go away. The courts are determined to help with this. Costs are assessed, and the label vexatious is applied in order to hide what is happening.
            This is not solely about the costs, it is about using the law punatively against the public.. however you can.

            December 1, 2016 at 12:33 pm
            • Derek Thompson

              It Is the Same thing in Alberta . The Judges want to punish the SRLs . More so the SRLs that are detailed & know that the Judges are not doing the action correctly . By us speaking up & proving the Judges wrong ,the Judges have embarrassed themselves & want revenge . so they use the elevated costs & security of costs to punish us some times to the point of stopping our actions . The More the Judges get away with this the more they are doing it & with even higher costs at step of the way .
              Can any one start a petition to get this stopped ?

              December 2, 2016 at 12:56 pm
              • allen

                I can more than do the petition but because of experience I will not. Maybe try the group in Ontario, Derek. I am not even sure what they are called. Someone told me about them and I looked them up but decided not to link them so I have forgotten even their name.

                There are lawyers who have the heart and who will even quietly help a SRL but SRLs tend to talk too much (don’t know what not to say) and SRLs will even try to mess up the good advice they get by adding their own beliefs to what the lawyer or others who know tell them. That behaviour can truly mess up a lawyer so those lawyers are afraid to even offer the quiet help. In like manner too many SRLs want self-praise-want too much mileage out of any movement. If SRLs are to take charge of the bs going on in our courts we could easily take down the crooks in robe and the useless in our legislatures and parliaments but we have to move as a group and that takes discipline-something we lack.

                I keep saying statistics show, that we are more than them- yep it is a we vs them thing but we cannot see how powerful we could be if we just get the discipline to act together. Too many wanna be among among us to tip our boat when we are at sea so that we can only drown.

                So Derek I hear you but I am not getting involved

                December 2, 2016 at 2:30 pm

    Fantastic and humane act by Colin Feasby of Osler Hoskins for helping Mr. Pintea through this cruel and unusual punishment by The Alberta Court of Appeal who (talking from experience) must be the most merciless judiciary in Canada.

    Kudos to you Mr. Feasby!

    November 22, 2016 at 12:57 pm
    • allen

      I second the regards to Mr Feasby. Most lawyers in Alberta just laugh at us and they gather in court for the show when the judges abuse us.

      When we describe Alberta Court of Appeal as merciless we give the impression we are begging them something. We are absolutely begging them nothing. As tax payers in this country it is our right to be treated fairly in court. In fact even those who do not pay taxes have the right to fairness.

      There should be interveners for those who got declared vexatious and those sent to jail by these judges

      November 22, 2016 at 3:01 pm
      • sandra olson

        same here in BC it went so far, that in one of my affidavits, i had to include a paragraph that went roughly like this, since the courts are so concerned with me speaking correctly and respectfully, i must remind the court to do the same. if i have been able to manage to remain civil, then i have the right to be spoken to and treated with the same courtesy as you seem to need. when we were then in court, the judges face was contorted with his efforts to remain respectful. He wanted DESPERATELY to say things to me that i knew just would not be considered respectful.

        November 22, 2016 at 7:36 pm
    • sandra olson

      you should meet the courts of British columbia! it seems there is some sort of contest on who can be the cruelest, and most deeply abusive to any self represented!!! not just the decisions, but the unethical behavior, the ridicule, the slander and name calling. it just goes on and on. then, at the end of it, some of the most derisive and and non judicially correct statements i have ever heard, to these judges, shame on you.

      November 22, 2016 at 3:16 pm
  • sandra olson

    thank you so much for this commentary. it is excellent. i look forward to this supreme court of canada statement. do you know when this will be heard?

    November 22, 2016 at 2:13 pm
  • Twechar

    We as citizens cannot allow this conduct by the judiciary to fester and normalize.

    November 22, 2016 at 8:57 pm
  • Connie Brauer

    AS a long suffering self litigant in a number of trials in NS , I can honestly say we have been treated respectfully for the most part. We are still waiting for a decision after 4 months!
    That is disrespectfull. The delay for justice to be heard in an Internet age of quick response is mind numbing.

    Also some applications are never addressed by the judge because of hidden agendas.
    Eg Interrogatories. They never get answered.
    We need simpler forms. Simpler rules and no hidden agendas. We also need an end to allowing unlimited vexatious litigation.
    There has to be a balance for seeking justice and the rights of litigantsand defendants.

    November 23, 2016 at 8:41 am
    • allen

      Connie, I can top that. I am still waiting on an order to be signed since March 2011. Five or so letters to the Chief Justice of the Alberta Court of Appeal and the registrar have fallen on deaf ears. I have even gone tot he politicians still no order signed as yet

      Note I said signed not issued. The order was issued, we had a meeting to settle the Minutes and all that but the staff refuse to sign my Order. The clerk at the Supreme Court tried to get the Order from them. Still no order to this day. For all I know I may have been denied leave at that Supreme Court because they refuse to give the order so the SCC could have it.

      November 23, 2016 at 10:36 am
  • Twechar

    Let’s understand what’s going on here…we SRL’s are seen as the enemy amongst most Judges in Alberta and probably in other jurisdictions also! I have been before 9 judges seeking justice on the same matter for 10 years and I can honestly say that only 1 out of the 9 was “impartial”.
    Pandering, collusion and conflicts of interest where judges from the lower QB Court can also sit on the higher Court of Appeal is rampant in Alberta at both QB and Court of Appeal levels.

    The absence of ethics were exposed in the justice Robin Camp now known as the “keep your knees together” retrial. Where Justice Camp blamed a homeless rape victim for causing her own rape by not keeping her knees together. Justice Camp was an Alberta judge who got promoted to the Federal Court and is still under review by the CJC. This is a man who got a hearing in Calgary and admitted that he had “deep rooted prejudices” and “wasn’t educated in sex case laws”!

    What is there to decide about this conduct? This man is unfit to be a judge but the CJC will find a way to allow him to keep his job. My point is, if this was a SRL or an ordinary citizen making the “why didn’t you keep your knees together” remark as a defence, they would be in jail already.

    There is not just “double standards” among Alberta judges there are “multiple standards” in order to save the sacred “judicial independence” “judicial discretion” and that suit of armour called “judicial immunity” which as Justice Camp has proven, is nothing more telling all of us to go to hell and that Judges can do what they want in there positions for controlling and the ruinination of our lives and we citizens cannot do a thing about it. How does all this reconcile with Sec. 15 of The Charter?

    This is a serious matter of abuse of power for our Justice Minister because the CJC is not working for citizens.

    Judges judging Judges doesn’t work just history tells us that “fox guarding the henhouse” breeds pandering and identity group protectionism.

    November 24, 2016 at 12:57 pm
  • Derek Thompson

    You are all right . The Judges & system is out of control . A system the Judges have recreated ! As they control the rules of court committees & put in what ever they want to make it better for the Judges & or Lawyers .

    The Appeal Court should take all the material that was before a Judge & see if the Judges erred . This should be the level /mechanism that identifies which Judges get it & those that do not . This is how they could identify & weed out the Bad /incompetent / abuse of authority, Judges !! Instead it is a protection system for many of the Judges .

    I would say the first step would be to get all Judges/gatekeepers off the Rules of Court committee(s) . That way every Judge , Lawyer or Member from the public could share the changes they feel needed . This would give us a better well round system that effects & benefits us all . Not just what is good for the Judges & Lawyers .

    Second : We must give the Judges Duties & Punishments if they breach those duties . Like make them follow the rules of court !! or they are fired . If they are fire-able many will stop this nonsense if not they will be fired & the people win . Check this link for many more solutions .

    November 28, 2016 at 7:10 pm
  • Twechar

    CJC committee recommends removal of Robin Camp, a good first step. Now it is up to the rest of the CJC members to agree, then it goes to Justice Minister of Canada from there.

    Where I believe must be passed by Parliament then onto the Senate for final approval.

    Either way Camp has exposed what we all have been subjected to…biased judges and abuse of power!

    It’s going to be a long time before a result will happen.Unless it gets stalled for 5 years Camp stands lose his pension, I believe a Judge needs to be on the bench for 10 years for pension qualification. That’s what happened in the Lori Douglas and Cosgrove cases …the only known 2 other cases of removal of judges in 45-50 years.

    Will the CJC look after their own,or are we finally going to see the return of “impartiality” in our Courts? Time will tell!

    November 30, 2016 at 4:55 pm

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