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Simon Shields, LLB

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Parties - Self-Represented - Judicial Accomodation of

Moore v. Apollo Health & Beauty Care (Ont CA, 2017)

In this appeal from a Small Claims Court judgment the Court of Appeal commented on recent policy statements from the Canadian Judicial Council on how judges should approach self-representing litigants:
[41] The new reality of civil litigation in public courts is the significant number of parties who are not represented by a lawyer, but present their own cases. Presiding over a trial where a party is not represented by a lawyer poses distinct challenges for a trial judge, and also brings with it distinct responsibilities.

[42] Both the challenges and responsibilities are succinctly described in the Statement of Principles on Self-represented Litigants and Accused Persons (the “Statement”) issued by the Canadian Judicial Council in September 2006. The Supreme Court of Canada endorsed the Statement in Pintea v. Johns, 2017 SCC 23 (CanLII).

[43] The main challenge faced by a trial judge when a party is not represented by a lawyer lies in the difficulty of managing an adversarial proceeding when one party lacks formal training in the law and its procedures. As described by the Statement, at p. 3:
Self-represented persons are generally uninformed about their rights and about the consequences of choosing the options available to them; they may find court procedures complex, confusing and intimidating; and they may not have the knowledge or skills to participate actively and effectively in their own litigation.
[44] While self-represented persons vary in their degree of education and sophistication, I think it safe to say that most find court procedures “complex, confusing and intimidating.” That state of affairs gives rise to the responsibility of judges to meet the need of self-represented persons for “simplicity” and to provide “non-prejudicial and engaged case and courtroom management” to protect the equal rights of self-represented persons to be heard: Statement, pp. 4 and 6.

[45] The Statement, at p. 7, offers specific advice to judges about how to meet their responsibilities to self-represented persons in the courtroom environment:
Judges have a responsibility to inquire whether self-represented persons are aware of their procedural options, and to direct them to available information if they are not. Depending on the circumstances and nature of the case, judges may explain the relevant law in the case and its implications, before the self-represented person makes critical choices.

In appropriate circumstances, judges should consider providing self-represented persons with information to assist them in understanding and asserting their rights, or to raise arguments before the court.

Judges should ensure that procedural and evidentiary rules are not used to unjustly hinder the legal interests of self-represented persons. [Emphasis added.]
[46] In the present case, the trial judge did several things to discharge his responsibility to protect the right of the self-represented person to be heard. Ms. Moore had not prepared a formal calculation of damages to place into evidence. However, the trial judge: clarified that some of the documents appended to Ms. Moore’s Claim were ones she wanted put into evidence; drew on the resources of the court staff to make copies of the relevant documents; assisted Ms. Moore in marking them as formal exhibits; and asked questions to clarify some of the details of her claim for Unpaid Wages.

[47] However, the trial judge did not make sufficient inquiries before concluding Ms. Moore had abandoned her claim for Unpaid Wages. Where the evidence of a self-represented party raises a question in the trial judge’s mind about the specific relief the party is seeking, a trial judge must make the appropriate inquiries of the party to clarify the matter. Those inquiries must be made in a clear, unambiguous, and comprehensive way so that several results occur: (i) the trial judge is left in no doubt about the party’s position; (ii) the self-represented person clearly understands the legal implications of the critical choice she faces about whether to pursue or abandon a claim; and (iii) the self-represented person clearly understands from the trial judge which of her claims he will adjudicate.

[48] Deputy judges of the Small Claims Court operate under significant time and volume pressures. As well, they daily face the challenge of trying to modify an adversarial civil litigation process historically predicated on representation by counsel to the increase in self-representation by parties. Nevertheless, such is the new reality. And it often requires a trial judge to take the time to ask those few extra questions to nail down, with clarity for all, the claims of the self-represented person upon which he will adjudicate. Trial fairness requires no less.

[49] In the present case, the trial judge did not make those clear, unambiguous, and comprehensive inquiries. As a result, he proceeded on the erroneous basis that Ms. Moore had abandoned her claim for Unpaid Wages, while Ms. Moore – quite reasonably – thought she had done no such thing. As well, the trial judge failed to inform Ms. Moore clearly that he would not consider her claim for Unpaid Wages, which she had just spent a considerable amount of time reviewing for him. His failure to do so resulted in an unfair trial.


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