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

“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

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Comments (10)

  • Barb Kueber Reply

    Great job guys!

    April 20, 2017 at 3:34 pm
  • Nic Robinson Reply

    Well done and thank you for letting ‘us’ know! One small step…

    Will Mr. Pintea continue to be represented and, in any event, will you be able to monitor and report?

    April 20, 2017 at 3:34 pm
  • sandra olson Reply

    I wish to congratulate all of you. this case will most assuredly have an impact on my matter, and most likely on many others. thank you so much for your honesty and commitment. two characteristics most missing in our courts today.

    April 20, 2017 at 3:49 pm
  • Wael Badawy Reply

    This is great –

    Looking forward to the decision – I believe it will help all of us in this Journey.

    Our Experience is the Rules of Court is only used to punish SRL. All clerks in Alberta Courts at the three levels, including criminal and even Traffic Court are trained to provide painfully experience and as long as you are SRL, you are always on the wrong side of the interpretation of the English writing. In Alberta, English statement has so many interpretations and it goes to the opposite meaning sometimes to just punish the SRL. With the increase of the new clerk and front people, who have no experience with the court process, it becomes a Choas.

    Happy for the litigant.

    April 20, 2017 at 3:54 pm
  • Elizabeth Reply

    Cannot thank you enough for your continual efforts to change the roadmap of justice for those of us having to Self-Rep in an often incredibly unfair game of deception, manipulation, and abuse toward the SRLs. This decision gives us at least some footing when standing before a Justice, begging to be heard and praying for fair treatment. With continued gratitude…once again, thank you.

    April 20, 2017 at 7:23 pm
  • Jennifer L. Schulz Reply

    Wonderful, important work. Well done Julie and team!

    April 20, 2017 at 11:25 pm
  • allen Reply

    There should be a major issue in the first place of how a case conference could be scheduled without Mr Pintea’s agreement to the date for it. The rules require consent from both parties for such a conference to be scheduled BUT as usual judges in Alberta change the rules on a case by case basis.

    It defies logic that a court, one consisting of a panel of judges at the highest level in a province in this country could think justice is served or seen to be served by their awarding cost against a man to those who injured the said man when the said man- a litigant before them was past due compensation for the said injuries. They have no shame. The only surprise I have is that one of them actually saw fit to dissent. That court is so hostile to justice it must have the worst counter staff in this whole country and that is based on experience and the experience of others I know about. Time of r the government to clean house at that court

    Also I wish to know if the decision will be properly written later for if it came back within 30 minutes, what really was set out? Often times I get the impression that the SCC does not give proper consideration to cases. My favourite Canadian judge of all time will forever be Mdme. Justice Claire L’Heure Dube for she never fails to properly and fully ventilate issues in a decision. That judge was in a class all by herself and she forever will be as far as I am concerned

    I don’t want to seem ungrateful for this work by these esteemed “insiders” who could have been heartless and inconsiderate as is the case with us – “insiders” on the most part. However, I suggest NSRLP keeps close tabs on how many judges in Alberta give a biscuit about this ruling by the SCC. My experience has been they laugh at SRLs when they quote SCC decision to them. Often times they have no clue about the case even with it right before their eyes in court in SRLs filed document.

    Most judges and lawyers (well in Alberta) only know the little gist of well known SCC cases. I am convinced they do not read. Once one said to me “Baker” is an immigration case. I tried to use Baker to explain procedural fairness to her. Another time another one trying to sound cute told me, I know about Baker. She did not want to come out and tell me it deals with immigration. I responded likewise with a wry broad smile to say I know you think it just deals with immigration (boy was I laughing on the inside). Alberta judges are like robots

    Yes, let us keep tabs to see the reaction to Pintea v John especially at the Alberta Court of Appeal

    April 21, 2017 at 1:16 pm
  • sandra olson Reply

    allan, would you please send a link to this baker case? I would love to read it
    thank you

    May 2, 2017 at 2:05 pm
  • W badawy Reply

    The decision is out and it is very disappointing.

    It only refers to the principles.

    I wished for something more.

    In Alberta And federal courts srl are washed out by the case management judges.

    May 4, 2017 at 1:27 pm
  • Cynthia Freitag Reply

    I could not be prouder knowing that people like yourselves are true to their convictions even when the light became dim. You managed to brighten the ‘burden’ on both ends of the crisis. It may take time, but you know, you must know, that success always has a healing crisis attached to it. Things always get worse before they get better. This is a sign of success. Very proud to have acquaintances myself with you all. Really and truly. The people that will benefit on all sides of the triangle may never fully know why, but we know why. Congratulations!

    May 5, 2017 at 6:40 pm

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