“This Case is About A2J – and About Insiders and Outsiders”

The Supreme Court of Canada’s unanimous decision in Pintea v Johns (heard April 18, 2017) was delivered from the bench by Justice Karakatsanis. But even before a decision was rendered, it was very apparent that the Court took seriously the challenges that SRL’s face, and the need to adjust and adapt to ensure that they have Access to Justice.

Here I offer a brief summary that I hope conveys the tone and flavor of the hearing (which I attended along with Dayna Cornwall, our Project Coordinator, and Gurleen Gill and Lidia Imbrogno, student RAs who worked on the factum). The outcome was, as NSRLP pro bono counsel Ranjan Agarwal tweeted, “a total victory”.

The decision is not yet posted on the SCC website, but what follows is drawn from my detailed notes on both the argument and the decision, with some verbatim quotes.

Background

Valenti Pintea, the appellant, is a disabled man injured in a car accident (the subject of his suit). Although initially represented by counsel, Mr Pintea was unable to afford to continue with counsel and thus began to represent himself. The defendants (also involved in the accident) were represented throughout the case by counsel.

A dispute arose over whether the court had been informed of Mr Pintea’s change of address partway through the proceedings. Notices for two case conferences were sent to his old address, and Mr Pintea did not appear at these conferences. He was then held in contempt and his case struck by the Alberta Court of Queen’s Bench. Mr Pintea was ordered to pay costs of almost $83,000. The Alberta Court of Appeal upheld this decision (with one dissent, by Martin J., arguing that the outcome was “excessively punitive”).

Leave to Appeal and to Intervene

In August 2016, Colin Feasby of Osler Hoskin & Harcourt wrote to me to tell me that he had agreed to take Mr Pintea’s case pro bono and had applied for leave to appeal to the Supreme Court of Canada. Leave was granted in October 2016.

The National Self-Represented Litigants Project as well as Pro Bono Ontario and Access Pro Bono  applied to be intervenors in Pintea v Johns. (PBO and APB applied jointly.) An “intervenor” in the Supreme Court of Canada is permitted, as a “stranger” to the proceedings, to participate by offering expertise and advice. NSRLP’s application for leave to intervene (and the subsequent intervention) was managed pro bono by Ranjan Agarwal of Bennett Jones. Leave to intervene was granted in March 2017. You can read the NSRLP factum here.

The Hearing (1): the case for the appellant SRL

All nine judges of the Supreme Court took their seats at 9.30 a.m. on Tuesday morning. Colin Feasby for Mr Pintea began his presentation with the following statement:

“This is a case about access to justice – and not just for a few. Self-represented litigants (SRLs) are sometimes the majority in our courts now. This case is about insiders and outsiders. Everyone in this room is an insider – SRLs are outsiders. This case is about how we treat outsiders.”

Mr Feasby argued that the historical approach taken by the courts towards SRLs needs to change in light of the “epidemic” of self-representation. A decision to self-represent, he argued, was not a choice, but a necessity for most SRLs, and a burden for many.

Mr Feasby urged the Justices to consider the need for a new, more compassionate, and contextual approach to the application of Court Rules to SRLs. To illustrate the traditional attitude taken by the courts towards SRLs, he referenced the decision in Broda v Broda, (2001) ABCA151 (cited with approval in 2011 by Koerner v Capital Health Authority, ABCA 289), which made the following comment:

“If they (self-represented litigants) seek free lunch, they should not complain about the size of the portions.”

Sounds Dickensian, does it not? Mr Feasby pointed out. This approach, he told the Court, is not suitable to the modern age, nor is it fair.

Our NSRLP Board Chair Rob Harvie obviously agreed, tweeting this:

The next 15 minutes of Mr Feasby’s presentation, as well as subsequent questions asked by the Justices, focused on the meaning of the Court Rules relating to service in the Alberta Queen’s Bench. This discussion highlighted the ambiguity and lack of clarity surrounding the Rules and the relationship of the Rules to a charge of civil contempt. Was Mr Pintea’s actual knowledge of service required, the Justices asked, or was it enough that the defence had technically complied with the Rules, whether or not Mr Pintea knew that he had been served?

What struck me about the Rules discussion was that it came about simply because Mr Pintea is an SRL. Insiders (lawyers) share a tacit understanding over procedural nuances, that resolves any ambiguity via practice and conventions. When everyone is represented by counsel, they serve one another’s offices without a problem. Serving an SRL is a different matter.

The case conference at which Mr Pintea’s case was struck, and the order for contempt and costs was made, was described by Mr Feasby as in effect an “ex parte proceeding” (a hearing at which only one side is present. Mr Pintea was not present because, he stated, he had not received the notice and so did not know the case conference was taking place). Mr Feasby argued that it was completely inappropriate for a hearing that made an order – with its serious consequences – to take place in the absence of the affected party. In such a circumstance, he said, “all emphasis should be on the rights of the SRL.” Instead there should have been a hearing in which “everyone was treated the same, regardless of whether they had counsel.”

Furthermore, Mr Feasby argued, the penalty of $83,000 was disproportionate to the alleged contempt.

In the closing minutes of his argument, Mr Feasby was asked by Justice Moldaver whether the case management judge had not in fact “bent over backwards to accommodate the SRL?” Mr Feasby agreed that the transcripts of the case management conferences showed the judge trying to speak with Mr Pintea, but described their interaction as “ships passing in the night” who were “talking past one another”. There was no evidence, he argued, that Mr Pintea really understood what he was being told and asked to do. Similarly on appeal, the Court of Appeal did not appear to “make an effort…to understand his grounds for appeal”, however poorly drafted they may have been.

The Hearing (2): the intervenors

Counsel for the intervenors (Ranjan Agarwal and Ilan Ishai of Bennett Jones for the NSRLP, and Andrew Bernstein of Torys on behalf of Pro Bono Ontario and Access Pro Bono) were each allocated five minutes to present their proposals on clear and consistent guidance for judges on how they might assist SRLs, and ensure that they can genuinely participate in proceedings, without prejudicing the other party.

In its factum the NSRLP proposed a “reasonable assistance” test, set out at para 15(d). This test would include consideration of the contextual circumstances and the level and type of assistance this SRL requires. Ilan Ishai, presenting NSRLP’s “reasonable assistance” test to the Court, said that it was important to establish a clear set of expectations for “active adjudication”, which is presently offered “hesitantly and inconsistently”, resulting in widely varying practice and thus Access to Justice for SRLs across Canada.

Pro Bono Ontario and Access Pro Bono told the Court that the assumption that a fair process led to a fair result was only true if:

• The parties (including any SRLs) could find the relevant Rules
• They could understand the Rules
• They could follow the Rules
• They could understand and anticipate the consequences of the Rules

“When you have litigants represented by counsel, these are fair assumptions” stated Mr Bernstein. However given that the same assumptions cannot be made where a party is without representation, judicial assistance for SRLs (including referring them to other sources of assistance and advice) is a requirement for procedural fairness.

This should be an element of a Prime Directive (a Star Trek reference) for judges, quipped Mr Bernstein – that they should be guided by an over-arching principle of fairness which takes into account the difficulties faced by many SRLs when it comes to navigating the Rules.

The Hearing (3): the case for the respondent (represented party)

Duncan Boswell of Gowlings, appearing for the respondents, Dale and Dylan Johns, sought to persuade the Justices that the case management judge had done everything possible to ensure that Mr Pintea was treated fairly, by explaining the process to him and scheduling many (15) case conferences.

Almost immediately, the Justices appeared skeptical of this line of argument. Surely, asked Justice Abella, the defence must share some responsibility for the fact that there had been 15 case conferences (in a case where only quantum and not liability was at issue)? Was the delay in getting this matter to trial in fact partly a consequence of the adversarial (my word) litigation strategy of the defence? Justice Abella also asked why, when Mr Pintea had specifically told the defence that he did not look at email and would not accept documents sent that way, they continued to use it as a means of contact service?

Gowlings stated in its factum that the case management judge had demonstrated “incredible patience”. Justice Rowe suggested that perhaps the case management had done a good job of explaining the process to Mr Pintea for a long time, but then lost patience and held him in contempt?

Justice Côté raised the question of proportionality – was contempt, which can result in imprisonment (NSRLP is aware of two SRLs who have been imprisoned for civil contempt) and costs of almost $83,000 an appropriate response to failure to attend two case management conferences? Justice Côté also questioned the frequent use of motions to strike by the defence (they had filed a motion to strike for the Supreme Court hearing, although this was barely addressed in the opening minutes of the hearing) which seemed to deploy a “scatter-gun” approach.

The Chief Justice summarized the crux of the issue on service as whether or not Mr Pintea had “actual knowledge” (of the notices of the case management conference).” She continued “It is not enough to say it was stuck in his mailbox.” She went on to say:

“You may have complied technically with the Rules, but that doesn’t get you home for the substance of the contempt.”

And in response to Mr Kapusianyk’s efforts to argue otherwise, the Chief Justice noted dryly:

“Mr Pintea was confused before. This (counsel’s argument) will have done nothing to allay that.”

The Decision

At 11.45 a.m., the Justices rose and retired to consider their decision. They returned 30 minutes later, and their unanimous decision was delivered by Chief Justice McLachlin.

The appeal was allowed and the contempt order overturned. The respondents had not shown that Mr Pintea had actual knowledge of the notices which required him to attend the case management conferences, and of which he was found to be in contempt. And the case management judge failed to consider whether Mr Pintea had actual knowledge of the notices to appear when she made her order on contempt.

In addition, the Court endorsed the Canadian Judicial Council’s Statement of Principles on Self-Represented Litigants and Accused Persons. These principles have been previously referred to by NSRLP, SRLs and occasionally by judges – but their endorsement by the Supreme Court of Canada raises both their legitimacy and potential impact for SRLs to a new level. We should expect to see the CJC Principles raised in future suits where there is a question over whether an SRL has not just accessed the justice system, but whether they have been able to participate as fully, and with as much understanding, as possible.

I do not wish to overstate the impact of this decision – it was drawn relatively narrowly in relation to the overturning of a contempt order, and the CJC principles have occasionally been referred to before in hearings.

However, the symbolic as well as the practical import of this decision is immense.

• It is the first time that our highest court has explicitly and in many ways sympathetically considered and addressed (obiter dicta) some of the challenges faced by SRLs.
• It sends a message to all judges that technical compliance with the Rules may not, in the words of the Chief Justice, “get them home” when they seek to use those Rules against confused and unknowing SRLs.
• It elevates the importance of the CJC principles and will allow SRLs and counsel to refer to them as an authoritative source in future cases.

Above all, the outcome in Pintea demonstrates that the little guy can eventually find justice in our legal system.

The NSRLP team at the Supreme Court