Parties

1. General
2. Representation
3. Self-Representation
4. Particular Parties
5. Unknown Parties
6. Amicus Curiae
7. Intervenors
8. Public Interest Standing

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1. General

'Parties' is a bit of a catch-all category, that includes such things as representation, self-representation, amicus curiae and such. In particular it includes the status of specific 'parties', some of whom though well-known, don't have legal status to sue or be sued or require special procedures to do so.

2. Representation

. R v Allahyar

In R. v. Allahyar (Ont CA, 2017) the Court of Appeal considered an appeal of a decision of an Ontario Court of Justice judge to refuse a person (the defendant's brother-in-law) not licensed by the Law Society of Upper Canada (ie. neither a lawyer nor a paralegal) to represent a person appealing the judgment of a justice of the peace respecting a charge under the Highway Traffic Act. The court usefully canvasses the issue expressly in the context of the fact that the brother-in-law was not a LSUC licensee, and the principles are extendable to other situations, such as non-licensee representation before administrative tribunals, where the competency or propriety of similar representation is an issue:

(1) The Relevant Principles

[11] As a general rule, a representative is permitted to represent a defendant in certain proceedings in the OCJ. Section 50 of the POA provides for a defendant to appear and act personally or by representative at trial in provincial offences matters, while s. 118 provides for an appellant or respondent in appeals of Part III matters to appear and act personally or by representative. A “representative” is defined in s. 1(1) as “a person authorized under the Law Society Act to represent a person in that proceeding”.

The POA does not stipulate who may appear or act on behalf of an appellant in an appeal of a proceeding commenced (as here) under Part I of the POA. However, the combined effect of ss. 1 and 26.1 of the Law Society Act, R.S.O. 1990, c. L.8, s. 62; and ss. 6 and 30 of By-Law 4 of the By-Laws of the Law Society of Upper Canada, is that, in addition to a lawyer or paralegal holding a Class P1 license, a non-licensed family member or friend who does not expect or receive compensation for the provision of legal services, is authorized to represent a defendant in any proceedings under the POA before the OCJ.[1]

The right of a representative to appear is subject to the court’s authority to control its own process.[2] The leading case is R. v. Romanowicz (1999), 1999 CanLII 1315 (ON CA), 45 O.R. (3d) 506 (C.A.). In Romanowicz, an accused was represented in summary conviction proceedings by an agent who was alleged to have provided ineffective assistance. The court considered whether and on what basis the court could preclude an agent who was not a lawyer from representing an accused person in a summary conviction proceeding.[3]

[12] In concluding that a trial judge has the authority to refuse to permit an agent who is not a lawyer to represent an accused person in summary conviction proceedings, the court in Romanowicz explained that “[s]everal provincial statutes that provide for representation by agents before various tribunals recognize the tribunal’s power to exclude agents” (at para. 54). As an example, this court referred to s. 50(3) of the POA, which, at the time, stated:

[13] 50(3) The court may bar any person from appearing as an agent who is not a barrister and solicitor entitled to practise in Ontario if the court finds that the person is not competent properly to represent or advise the person for whom he or she appears as agent or does not understand and comply with the duties and responsibilities of an agent.

[14] Section 50(3) continues to apply to proceedings commenced under the POA in the trial context. However, in 2006, with the coming into force of Bill 14, the Access to Justice Act, 2006, S.O. 2006, c. 21, Sched. C (which provided for, among other things, the licensing of paralegals by the Law Society), the section was amended to read:

[15] 50(3) The court may bar any person, other than a person who is licensed under the Law Society Act, from appearing as a representative if the court finds that the person is not competent properly to represent or advise the person for whom he or she appears, or does not understand and comply with the duties and responsibilities of a representative.

[16] In Romanowicz, this court held that, although the Criminal Code does not expressly give the trial judge power to prohibit a specific agent (which it defined at para. 24 as meaning a “representative”) from appearing in a particular case, the court was “satisfied that the power to do so along the lines found in the provincial legislation exists by virtue of the court’s power to control its own process in order to maintain the integrity of that process” (at paras. 53, 58).

[17] The court set out the procedure to be followed when a party attends with an agent as representative. The court should first determine whether the defendant has made an informed choice to be represented by the agent (at paras. 41-44). In appropriate cases, the court may also inquire into the propriety of the representation. After providing examples of circumstances that could result in an order disqualifying an agent (questions of competence, discreditable conduct, conflict of interest and a demonstrated intention not to be bound by the rules and procedures governing criminal trials), the court stated at para. 76:

[D]isqualification is justified only where representation would clearly be inconsistent with the proper administration of justice. It is not enough that the trial judge believes that the accused would be better off with other representation or that the process would operate more smoothly and effectively if the accused were represented by someone else. Disqualification of an accused’s chosen representative is a serious matter and is warranted only where it is necessary to protect the proper administration of justice. [Emphasis added.]

[18] The court cautioned against adopting an arbitrary rule and emphasized the need to review the particular circumstances of the case, stating at para. 77:

The power to disqualify agents, like any other facet of the court’s power to control its processes, must be exercised judicially on the basis of the circumstances present in a given case. Those circumstances may include the seriousness of the charge and the complexity of the issues raised in a particular case. A presumption, however, that all agents are incompetent to represent accused persons charged with certain summary conviction offences is not a proper basis on which to exercise that discretion.

[19] In Romanowicz, the agent in question was a paralegal who provided legal services at a time before paralegals could be licensed in Ontario. Questions respecting the standard of competence required of licensed paralegals have been addressed in recent cases such as R. v. Khan, 2015 ONCJ 221 (CanLII), [2015] O.J. No. 2096 and R. v. Bilinski, 2013 ONSC 2824 (CanLII), [2013] O.J. No. 2984. Nothing in this decision is intended to address representation by licensed paralegals in provincial offence matters. The test in Romanowicz, however, is clearly applicable in cases where a person seeks to be represented in such matters by an unpaid family member or friend.

3. Self-Representation

. R. v. McNeice

In R. v. McNeice (Ont CA, 2019) the Court of Appeal commented on a court's duty to assist unrepresented parties:

[9] It is well accepted that the trial judge has a duty to assist an unrepresented accused to understand the issues and to conduct his defence, while all the while maintaining his impartiality. As this court recently stated in R. v. Forrester, 2019 ONCA 255 (CanLII), 375 C.C.C. (3d) 279, the scope of that duty depends on the circumstances of the case and is circumscribed by what is reasonable: at para. 15 The court also stated at para. 16:

A trial judge, of course, has other duties, one of which is to ensure that the trial is effective, efficient and fair to both sides: R. v. John, 2017 ONCA 622 (CanLII), 350 C.C.C. (3d) 397, at para. 47; and R. v. Snow (2004), 2004 CanLII 34547 (ON CA), 73 O.R. (3d) 40 (C.A.), at para. 24. This includes ensuring that the trial does not become mired in irrelevant evidence and that the rules of evidence are applied fairly to both parties.

[10] In our view, the trial judge lived up to his obligations in this case. The trial judge allowed the appellant to ask Ms. C whether she had hypnotized the complainant before she went to the police and gave her statement about what she says occurred with the appellant. The answer was no. There was little if any relevance to their interactions after that. Furthermore, counsel appointed by the court to cross-examine the complainant had questioned the complainant regarding any discussions she had had with Ms. C, and put to her that she only went to the police because Ms. C told her that she had been sexually assaulted. The complainant responded “no”. Therefore any air of reality to that suggestion within a relevant time period was explored and denied. There was no unfairness or prejudice from the trial judge’s ruling.

. Gionet v. Pingue

In Gionet v. Pingue (Ont CA, 2018) the Court of Appeal sets out the basics of the court's duty to self-represented parties:

[30] The duty of a trial judge to assist self-represented litigants was canvassed most recently by this court in Dujardin v. Dujardin Estate, 2018 ONCA 597 (CanLII):

it is well-accepted that trial judges have special duties to self-represented litigants, in terms of acquainting them with courtroom procedure and the rules of evidence: Davids v. Davids (1999), 1999 CanLII 9289 (ON CA), 125 O.A.C. 375, at para. 36. However, a trial judge's duty to assist has limits. It does not entail bending the rules of evidence in an attempt to compensate for the lack of representation. The fair trial rights of opposing parties must be respected. As Brown J.A. said in Sanzone v. Schechter, 2016 ONCA 566 (CanLII), 402 D.L.R. (4th) 135, at para. 22: "A defendant is entitled to expect that a claim of liability brought against it will be decided by the same rules of evidence and substantive law whether the plaintiff is represented by counsel or self-represented."

[31] In ensuring that a self-represented litigant has a fair trial, the trial judge must treat the litigant fairly and attempt to accommodate their unfamiliarity with the trial process, in order to permit them to present their case: Davids v. Davids (1999), 1999 CanLII 9289 (ON CA), 125 O.A.C. 375, at para. 36.

. Moore v. Apollo Health & Beauty Care

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

4. Particular Parties

. Arsenijevich v. Ontario (Provincial Police)

In Arsenijevich v. Ontario (Provincial Police) (Ont CA, 2019) the Court of Appeal confirmed that the OPP may not be sued:

[6] The motion judge correctly concluded that the OPP is not a legal entity capable of being sued: see McNabb v. Ontario (Attorney General) (2000), 2000 CanLII 22413 (ON SC), 50 O.R. (3d) 402 (S.C.), at paras. 25-30. ...

. Lawrence v. International Brotherhood of Electrical Workers

In Lawrence v. International Brotherhood of Electrical Workers (Ont CA, 2017) the Court of Appeal sets out the appropriate manner to include a trade union as a party to litigation:

[15] It is well established that the Rights of Labour Act precludes a trade union from being named as a party and that an action brought in violation of the Act will be struck or dismissed: Nippissing Hotel Ltd. et al. v. Hotel & Restaurant Employees & Bartenders International Union et al., 1963 CanLII 149 (ON SC), [1963] 2 O.R. 169 (H.C.J.); Dover Corp. (Canada) Ltd. v. CAW-Canada, Local 27, [1996] O.J. No. 2319 (Gen. Div.); Active Canada Inc. v. Formosa, [2002] O.J. No. 2551 (S.C.J.); Burley v. O.P.S.E.U., [2004] O.J. No. 4431 (S.C.J.).

[16] The proper way to sue a trade union is to obtain a representation order pursuant to r. 12.07, authorizing one or more members of the union to defend a proceeding on behalf of all the other members. Rule 12.08 facilitates a similar procedure by providing that a representative order may be made for members of an unincorporated association or trade union to bring a proceeding on behalf of all the members where a class action would be unduly expensive or inconvenient.

5. Unknown Parties

. Stechyshyn v. Domljanovic

In Stechyshyn v. Domljanovic (Ont CA, 2015) the Court of Appeal canvassed some of the law governing the practice of naming unknown parties in lawsuits:

[1] On a motion to correct the name of a defendant on the basis of misnomer, as long as the true defendant would know on reading the statement of claim he was the intended defendant, a plaintiff need not establish due diligence in identifying the true defendant within the limitation period: Kitcher v. Queensway General Hospital (1997), 1997 CanLII 1931 (ON CA), 44 O.R. (3d) 589 (C.A.), at paras 1 and 4; Lloyd v. Clark, 2008 ONCA 343 (CanLII), 44 M.P.L.R. (4th) 159, at para. 4.

[2] In this case, after the appellant’s successful misnomer motion substituting the name of the respondent for John Doe, the respondent successfully brought a motion for summary judgment on the grounds that he was not sued until after the expiry of the limitation period and that the appellant plaintiff did not exercise due diligence in identifying the true defendant.

[3] We held that the jurisprudence governing misnomer governed and that in the circumstances, summary judgment ought not to have been granted. Accordingly, we allowed the appeal and indicated reasons would follow. These are those reasons.

.......

[17] The respondent submits that this is not a true case of misnomer because the actual name of the respondent had been ascertained by the appellant on the day of the accident.

[18] This submission ought to have been made by the respondent before Master Muir on the misnomer motion. Generally, a litigant is prevented from raising a matter that should have been the subject of a previous proceeding between the same parties.

[19] If the respondents on the motion for misnomer had raised the issue of due diligence, they would not have succeeded. The respondent Domljanovic would have known on reading the statement of claim that he was the intended defendant. The jurisprudence is clear that, in such circumstances, due diligence does not apply. In Kitcher, the name of the correct defendant was in the plaintiff’s solicitor’s file. In Lloyd, the name of the correct defendant municipality was readily ascertainable by typing in the location of the road in issue. The law that governs the addition of a party after the expiry of a limitation period does not apply.

[20] The respondent’s motion for summary judgment was an indirect attack on the motion for misnomer. It would be a waste of money, time, energy and judicial resources to allow the correct defendant to be added on a motion for misnomer and then to allow a motion for summary judgment on the basis that the correction was made after the expiry of the limitation period. The law does not countenance such impracticality. The law treats the naming of the correctly named defendant as a substitution for the incorrectly named defendant and not the addition of a new party or the initiation of the action against the correctly named defendant.

[21] Accordingly, for these reasons the appeal was allowed, the order granting summary judgment set aside and the action allowed to proceed.

6. Amicus Curiae

. Scaduto v Cucu

In Scaduto v. Cucu (Ont CA, 2017) the Court of Appeal makes a useful clarification on the role of amicus curiae in civil proceedings:

[10] Pursuant to r. 13.02:

Any person, may with leave of a judge or at the invitation of the presiding judge or master, and without becoming a party to the proceeding, intervene as a friend of the court for the purpose of rendering assistance to the court by way of argument.

[11] In Oakwell Engineering Ltd. v. EnerNorth Industries Inc., 2006 CarswellOnt 9793 (C.A.), at para. 9, McMurtry C.J.O. noted that an amicus need not be "impartial", "objective" or "disinterested" in the outcome of a case. The fact that the position of a proposed intervener is generally aligned with the position of one of the parties is not a bar to intervention if the intervener can make a useful contribution to the analysis of the issues before the court.

7. Intervenors

. ClubLink Corporation ULC v. Oakville (Town)

In ClubLink Corporation ULC v. Oakville (Town) (Ont CA, 2019) the Court of Appeal states as follows on denying an application for leave to intervene:

[2] While I do not doubt the proposed intervener’s expertise and interest in the matters at issue, I am not satisfied that it will make a useful contribution to the appeal without unfairness to the opposing party.

[3] There are two reasons. First, the proposed intervener’s factum on this motion does not set out in any detail or with clarity what submissions it will make if granted leave to intervene, how those submissions will differ from the submissions made by the appellant, or how its unique perspective on the issues will assist the court. Having heard the submissions of counsel for the proposed intervener, I am not satisfied that there is any material difference between the submissions it proposes to make, and the submissions that will be made by the appellant on the appeal: see, in particular, the submissions in the factum of The Corporation of the Town of Oakville, at pp. 18-23. Nor am I satisfied that the respondents have been given any clear indication of what case they will be required to meet if leave to intervene is granted.

[4] In a case such as this, I would expect to see in the intervener’s factum a clear summary of what its arguments will be on the appeal, and how those arguments are informed by its unique perspectives on the issues. In some cases, an intervener should file on the motion a draft of the factum it proposes to file on the appeal, if granted leave. Doing so will permit the court to assess both the uniqueness of the submissions made by the proposed intervener, as well as any issues of redundancy with respect to the submissions made by the other party.

[5] The second reason why I would dismiss the motion is that an intervention motion should generally be brought with dispatch in order to avoid unfairness to the opposing party. I realize that this case is unusual in the sense that the appeal has been perfected and scheduled on an expedited basis. Nevertheless, I am concerned that granting leave to intervene would cause unfairness to the respondents.

8. Public Interest Standing

. Ontario (Attorney General) v. Bogaerts

In Ontario (Attorney General) v. Bogaerts (Ont CA, 2019) the Court of Appeal commented on the need for an evidentiary context when granting public interest standing:

[33] I would, however, point out that the combined effect of the order granting the respondent public interest standing and striking out the affidavits providing specific instances of the infringement of Charter rights resulted in this court having a less than satisfactory record. In Downtown Eastside Sex Workers, the case recognizing generous scope for public interest standing, the Supreme Court noted, at para. 74, that there was a substantial record of affidavit evidence as to the operation and impact of the challenged legislation, to “provide a concrete factual background” for the challenge. By contrast, on this application and appeal, the constitutional arguments were advanced in the abstract without a proper factual foundation. In my view, it would have been preferable had this challenge come before the court either on the application of an individual who had been subjected to the challenged statutory powers, or upon some other proper record, to provide a concrete factual context for the consideration of the constitutional issues raised.

. Alford v. Canada (Attorney General)

In Alford v. Canada (Attorney General) (Ont CA, 2019) the Court of Appeal held that public interest standing supported an application by a law professor to challenge a provision of a federal security statute that he alleged violated parliamentary privilege:

[4] In our view, Mr. Alford’s public interest standing should be recognized. A balancing of the factors identified in Downtown Eastside Sex Workers United Against Violence Society v. Canada (Attorney General) 2012 SCC 45 (CanLII), [2012] 2 S.C.R. 524, supports this conclusion. Mr. Alford raises a serious issue, suitable for adjudication. He has demonstrated a genuine interest in this issue, having published on the topic and having participated in committee hearings relating to the legislation. The challenge he wishes to bring is a reasonable and effective way to bring the matter before the court. He is highly competent and able to represent the constitutional issues at stake, and clearly motivated to do so. There can be no concern that he is a busybody or that his interest is purely academic. He sees this challenge as an issue of public importance impacting on fundamental principles of democracy.

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Cases to be integrated