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Presenters - Canadian Judicial Council '2006 Statement of Principles on Self-represented Litigants and Accused Persons'This is the statement: Canadian Judicial Council 2006 Statement of Principles on Self-represented Litigants and Accused Persons. . Grand River Conservation Authority v. Ramdas
In Grand River Conservation Authority v. Ramdas (Ont CA, 2021) the Court of Appeal engaged in a useful explanation of how the court and represented parties should deal with self-presenting parties:G. Some Observations
[17] While not necessary for the merits disposition of this appeal, I make several observations about the process as it unfolded in this case. Ms. Ramdas was self-represented before the application judge. This is an increasing fact of life in Ontario courts, one which judges must accommodate.
[18] Self-represented litigants are “expected to familiarize themselves with the relevant legal practices and procedures pertaining to their case and respect the court process”: Dhatt, at para. 27. However, the court also has a duty to ensure that self-represented litigants receive a fair hearing. The court’s obligations to self-represented litigants are outlined in the Canadian Judicial Council’s 2006 Statement of Principles on Self-represented Litigants and Accused Persons, which was endorsed by the Supreme Court in Pintea v. Johns, 2017 SCC 23, [2017] 1 S.C.R. 470, at para. 4.[3]
[19] I want to reflect on three specific points. First, judges have a natural tendency to rely on counsel for a clear and accurate understanding of where things stand in the litigation. But judges must also permit self-represented parties to explain how they understand the status quo. This will help avoid any impression of favouritism or bias.
[20] Second, self-represented individuals often do not fully understand the difference between evidence and submissions, even when it is well explained by the trial judge. Such a party might inadvertently give evidence in the course of making submissions. This is not admissible evidence on which the judge can rely unless it is given under oath. One option for the judge would be to swear in the party and allow submissions to be made from the witness box, and to permit cross-examination on the evidentiary parts: see Johansson v. Janssen, 2021 BCCA 190, 50 B.C.L.R. (6th) 122, at para. 33. Doing this would permit the judge to make findings on the evidence where appropriate. This is a tool judges might wish to use in applications or in ordinary motions on a motions day (where such evidence is necessary and otherwise admissible). In this case, the application judge gave thought to proceeding that way but ultimately did not permit Ms. Ramdas to provide viva voce evidence.
[21] It is also open to a judge to engage in active adjudication[4] in order to obtain relevant evidence from a self-represented party who might not fully understand what is relevant and what is not. That said, the principle of impartiality constrains a judge’s obligation to help make the judicial process accessible to self-represented parties. A judge must not cross the line between assisting self-represented litigants in the presentation of their evidence and becoming their advocate: Gardaworld Cash Services Canada Corporation v. Smith, 2020 FC 1108, at para. 36, citing Malton v. Attia, 2016 ABCA 130, 35 Alta. L.R. (6th) 27, at para. 3.
[22] Third, I turn to the obligations of counsel who are opposing a self-represented party. As officers of the court, lawyers have a duty to assist both self-represented litigants and the court in order to ensure that justice is not only done but is seen to be done. As I noted in Girao v. Cunningham, 2020 ONCA 260, 2 C.C.L.I. (6th) 15, at para. 152, lawyers’ obligations towards self-represented litigants are fairly limited under the Law Society of Ontario’s Rules of Professional Conduct: see Law Society of Ontario, Rules of Professional Conduct, Toronto: Law Society of Ontario, 2000, (as amended), ch. 7, s. 7.2-9. However, there are also the more general duties lawyers have when acting as advocates, including the obligation to treat tribunals with candour, fairness, courtesy, and respect: see Rules of Professional Conduct, ch. 5, s. 5.1-1 (which tracks the Federation of Law Societies of Canada’s Model Code of Professional Conduct, ch. 5, s. 5.1-1). In situations where opposing interests are not represented – for example in motions brought without notice or in uncontested matters – the Rules of Professional Conduct direct lawyers to take particular care to present their client’s case in a candid and comprehensive manner to ensure a tribunal is not misled: ch. 5, s. 5.1-1, commentary 6. This guidance should also apply where the presence of a self-represented litigant might impede the full proof and argument expected when both sides are represented.
[23] Another helpful source of guidance for counsel opposite a self-represented party is the American College of Trial Lawyers’ Canadian Code of Conduct for Trial Lawyers Involved in Civil Actions Involving Unrepresented Litigants, Irvine: American College of Trial Lawyers, 2009. The Code of Conduct is intended to supplement professional conduct rules and the Statement of Principles, and directs lawyers to:
• Not attempt to derive benefit for clients from the fact that the opposing litigant is self-represented (s. 9(a));
• Be aware of their duty to the court in considering reasonable requests for adjournments or waivers of procedural formalities when there is no real prejudice to their client’s rights or interests (s. 9(b)); and
• Advise the court of all material communications and agreements reached with the self-represented litigant (s. 12(c)).
This is good advice, and counsel who are opposite self-represented litigants would benefit from the Code of Conduct’s guidance. . Ramlochan v. Somodi
In Ramlochan v. Somodi (Div Court, 2023) the Divisional Court cites the standard required of judges when a party is self-presenting (here in Small Claims Court):[22] On the issue of the deputy judge encouraging the Appellant to seek legal advice, the deputy judge’s conduct was consistent with the Canadian Judicial Council’s Statement of Principles on Self-represented Litigants and Accused Persons. Section 4(1) of the Statement directs judges to inform unrepresented litigants of the consequences of proceeding without counsel . Arias v. Barbieri
In Arias v. Barbieri (Div Court, 2023) the Divisional Court reviewed issues advanced by a presenting (self-representing) party in a family law appeal:[24] On appeal, the Appellant takes the position that the motion judge failed to reasonably accommodate him as a self-represented litigant, as stipulated in the Canadian Judicial Council’s Statement of Principles on Self-Represented Litigants and Accused Persons (the “Statement of Principles.”) The Appellant submits that the motion judge had an obligation to advise the Appellant that his motion for contempt was ill-conceived as a first response to the Respondent’s alleged non-compliance with the Final Order and that the motion ought to have been treated as a motion for enforcement. The Appellant further submits that the motion judge erred in failing to grant an adjournment to reformulate the motion or to submit further evidence.
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[26] The Appellant also relies on Kawartha Haliburton Children’s Aid Society v. M.W., 2019 ONCA 316, at para. 80, in which the Court of Appeal held that the court must provide assistance to self-represented litigants in accordance with the Statement of Principles. The principles that the Appellant relies on are those that require judges: (i) to do whatever is possible to provide a fair and impartial process and prevent an unfair disadvantage to self-represented persons; and (ii) to ensure that procedural and evidentiary rules are not used to unjustly hinder the legal interests of self-represented persons.
[27] While the motion judge could have assisted the Appellant further, in my view, his conduct of the hearing did not run afoul of the above-stated principles. The motion judge provided the Appellant with a full opportunity to explain why the allegations would support a finding of contempt. He did not use procedural or evidentiary rules to unjustly hinder the Appellant’s legal interests. Although, despite case management, the contempt motion was permitted to proceed as a first response to the Respondent’s alleged non-compliance, it was ill-conceived. The Appellant, who had the assistance of counsel at various stages, did not seek any alternative relief in his notice of motion. “Any participant in litigation, including a self-represented party, has a responsibility to familiarize [themselves] with the procedures relevant to the case”: Carpenter v. Carpenter, 2016 ONCA 313, at para. 16. . 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 presenting 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. . Dhatt v. Beer
In Dhatt v. Beer (Ont CA, 2021) the Court of Appeal considered judicial duties owed to presenting parties:[23] The Beers submit that the trial judge erred in refusing to grant their request for an adjournment on the first day of trial for two reasons. First, it was only their first request for an adjournment. Second, the Beers were self-represented and the denial of an adjournment was inconsistent with the trial judge’s duty to self-represented litigants to acquaint them with courtroom procedure and the rules of evidence so that they received a fair trial: Morwald-Benevides v. Benevides, 2019 ONCA 1023, 148 O.R. (3d) 305, at para. 34.
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[26] Second, although a trial judge does have a duty to ensure self-represented parties receive a fair trial, as pointed out by the majority in Khimji a self-represented litigant’s refusal to comply with pre-trial orders and failure to use time granted by the court to find a lawyer, may weigh heavily against that litigant’s request for an adjournment of a set trial date.
[27] As well, the Canadian Judicial Council’s 2006 Statement of Principles on Self-represented Litigants and Accused Persons, endorsed by the Supreme Court of Canada in Pintea v. Johns, 2017 SCC 23, [2017] 1 S.C.R. 470, at para. 4, states, at p. 9, that self-represented persons are expected to familiarize themselves with the relevant legal practices and procedures pertaining to their case and respect the court process. The Statement notes that judges have no obligation to assist a self-represented person who makes no reasonable effort to prepare their own case: at p. 6, Section C, Principle 4.
[28] Further, the following statement by the majority of this court in Khimji, at para. 35, applies equally to parties represented by counsel and those who are self-represented:Individual litigants have a right to pursue and defend their respective claims. They must do so, however, within a court structure that must accommodate thousands of individual litigants. That system can function effectively only when litigants take scheduling commitments seriously and make genuine efforts to comply with court orders relating to adjournments and related matters. [29] In the present case, the Beers had been given lengthy advance notice of the trial date and ample time to retain a lawyer; they had the better part of two years to make arrangements to obtain relevant trial documents from opposing counsel; the action had been marked peremptory to the Beers; the Beers retained a lawyer at the last minute only for the limited purpose of seeking an adjournment of the trial date; they did not propose a new trial date; they failed to comply with the orders of the court to file a third party record and deliver a list of witnesses; and they made no reasonable effort to prepare their case. Given those facts, I see absolutely no error in the trial judge’s refusal to grant the Beers’ request for an adjournment on the first day of trial. . Hirtle v. College of Nurses of Ontario
In Hirtle v. College of Nurses of Ontario (Div Court, 2022) the Divisional Court considered the duties owed by a tribunal to a presenting party:[54] The appellant relies on the 2006 Statement of Principles on Self-Represented Litigants and Accused Persons established by the Canadian Judicial Council. The Statement of Principles has been adopted by the courts, including in these key cases relied on by both parties in this case: Girao v. Cunningham, 2020 ONCA 260, 2 C.C.L.I. (6th) 15, at para. 149; Pintea v. Johns, 2017 SCC 23, [2017] 1 S.C.R. 470, at para. 4.
[55] Although the Statement of Principles is directed at court proceedings, not tribunal proceedings, I find that it is relevant guidance, to be considered bearing in mind the particular circumstances of this case.
[56] The Statement of Principles provides that all participants in the justice system are accountable for understanding and fulfilling their roles, including judges, counsel and self-represented parties.
[57] The Statement of Principles provides that judges have a responsibility to promote opportunities for all persons to understand and meaningfully present their case. The judge cannot leave the self-represented party to flounder: Girao, at para. 150, citing Morwald-Benevides v. Benevides, 2019 ONCA 1023, 148 O.R. (3d) 305, at para. 34.
[58] The appellant relies on the following passage from the Statement of Principles regarding the types of assistance that may be provided, adopted in Girao, at para. 149:4. When one or both parties are proceeding without representation, non-prejudicial and engaged case and courtroom management may be needed to protect the litigants’ equal right to be heard. Depending on the circumstances and nature of the case, the presiding judge may:a. explain the process;
b. inquire whether both parties understand the process and the procedure;
c. make referrals to agencies able to assist the litigant in the preparation of the case;
d. provide information about the law and evidentiary requirements;
e. modify the traditional order of taking evidence; and
f. question witnesses; …
[Emphasis added.] [59] In this case, the Panel did provide information and explain the hearing process, invited the appellant to ask any questions, and took additional steps both before and during the hearing. The appellant submits that more assistance should have been provided as discussed below.
[60] The Panel’s responsibilities to self-represented parties are not unlimited. They must be fulfilled without compromising the requirements of judicial neutrality. The adjudicator is obliged to conduct a fair and impartial hearing. As put in Girao at para. 151:Although fairness concerns may animate how a trial judge exercises control over their courtrooms, there are clear limits to a trial judge’s duty to assist a self-represented litigant. The actuality and the appearance of judicial impartiality must be maintained. … In order to preserve fairness in a trial, “the trial judge must, of course, respect the rights of the other party” [Emphasis added; citation omitted.] [61] How far an adjudicator must go is a matter of discretion, depending on many factors: R. v. Chemama, 2016 ONCA 579, 351 O.A.C. 381, at paras. 13-14. Further, even in the criminal context the courts have noted that a trial judge has a range of options through which to ensure the necessary degree of assistance – there is no one single approach: R. v. Richards, 2017 ONCA 424, 349 C.C.C. (3d) 284, at paras. 110-112.
[62] As set out in College of Optometrists of Ontario v. SHS Optical Ltd., 2008 ONCA 68, at para. 58, in many cases it could be said that the presiding judge could have done more to assist the self-represented litigant. “But that is not the test. [The issue] is whether the proceedings were fairly conducted. Did the self- represented litigant get a fair hearing?”
[63] Further, the fairness of a hearing is not measured by comparing the appellant's conduct of his case with the conduct of that case by a competent lawyer. Rather, it demands that he have a fair opportunity to present his case to the best of his ability: SHS Optical, at para. 57, adopting Davids v. Davids (1999), 1999 CanLII 9289 (ON CA), 125 O.A.C. 375 (C.A.), at para. 36.
[64] Self-represented parties also have responsibilities with respect to the conduct of their case, which are underscored in the Statement of Principles as follows:1. Self-represented persons are expected to familiarize themselves with the relevant legal practices and procedures pertaining to their case.
2. Self-represented persons are expected to prepare their own case.
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