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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.

. Davis v. Canada (Royal Canadian Mounted Police)

In Davis v. Canada (Royal Canadian Mounted Police) (Fed CA, 2024) the Federal Court of Appeal considered duties owed by tribunals and court to self-presenters, here a disabled litigant:

VI. The Alleged Failure of the Federal Court to Accommodate Ms. Davis’ Disabilities and her Status as a Self-Represented Litigant

[21] Ms. Davis states that she is cognitively impaired as a result of a brain injury she suffered in infancy, and that she also suffers from chronic fatigue syndrome and fibromyalgia. According to Ms. Davis, these conditions negatively affect her ability to represent herself in legal proceedings.

[22] Indeed, a primary focus of Ms. Davis’ submissions on this appeal was on the challenges and barriers faced by self-represented litigants who suffer from disabilities (particularly those who are cognitively impaired) in accessing the justice system. Noting that many people with disabilities live at, or below, the poverty line, Ms. Davis observed that most of these individuals will be unable to afford legal representation, and will be left trying to navigate the justice system on their own.

[23] Ms. Davis also made submissions with respect to what she says were the shortcomings in the treatment that she received from the Federal Court, and its failure to accommodate her disabilities.

[24] On the advice of the Federal Court Registry, Ms. Davis wrote to the Associate Judge a couple of weeks prior to the hearing of the motion to strike. She stated in her letter that she had a disability that occasionally impeded her "“ability to articulate specific verbal and written words”", explaining that what she sees on paper "“may be significantly different”" from what others see. Ms. Davis went on to state that names were especially difficult for her to pronounce, and that the best that she could do when confronted with a name would be to spell the name for the Court.

[25] Ms. Davis also advised the Associate Judge that it would sometimes take her a few extra moments to find the word she wanted, or she might say the wrong word and need to correct it. Ms. Davis’ letter concluded by asking the Associate Judge to advise" “how you would like these issues to be dealt with during the hearing”". Attached to Ms. Davis’ letter was a note from her doctor that addressed Ms. Davis’ need for certain accommodative measures in the workplace.

[26] The Associate Judge responded by granting Ms. Davis leave "“to be accompanied [at the hearing] by a representative who may assist her as necessary”". When Ms. Davis advised the Associate Judge shortly before the date set for the hearing that she had tested positive for COVID-19 and could not get certain documents sworn as a result, the Associate Judge allowed unsworn documents to be filed. The RCMP’s motion to strike was then heard on the date originally set for the hearing, in accordance with Ms. Davis’ wishes.

[27] In considering the appeal from the Associate Judge’s decision, the Federal Court judge watched the video of the motion hearing. The judge noted that Ms. Davis had not availed herself of the opportunity to bring a representative with her to assist her at the hearing, but that she had nevertheless been able to fully articulate her arguments. The Federal Court judge described the representations made to the Associate Judge by Ms. Davis as being "“coherent, responsive [and] articulate”", stating that Ms. Davis had "“advocated her position admirably for a self-represented individual”".

[28] Ms. Davis gave no indication to the Associate Judge that she was experiencing any difficulties in presenting her case, save on one occasion where she indicated that she had been "“thrown off”" by a question from the Associate Judge. In response, the Associate Judge offered Ms. Davis a break to allow her to re-group, asking Ms. Davis how long she needed to collect her thoughts. Ms. Davis indicated that a 10-minute break would be sufficient, and the Associate Judge granted Ms. Davis’ request.

[29] Ms. Davis asserted before the Federal Court judge and before this Court that the Associate Judge had erred by offering her a break, rather than adjourning the hearing to another day in order to permit her to adequately prepare her submissions. Ms. Davis says that the Associate Judge ought to have offered an adjournment without Ms. Davis having to ask for it.

[30] The Federal Court judge did not err in rejecting this argument.

[31] There is no doubt that the history of disabled persons in Canada is largely one of exclusion and marginalization. Amongst other disadvantages they face, individuals with disabilities have been "“subjected to invidious stereotyping”", and they have often been denied the equal concern, respect and consideration that the law requires: Eldridge v. British Columbia (Attorney General), 1997 CanLII 327 (SCC), [1997] 3 S.C.R. 624, [1997] S.C.J. No. 86 at para. 56.

[32] There is also no doubt that courts are required to accommodate the needs of self‑represented litigants with disabilities: see the discussion of this issue in Haynes v. Canada (Attorney General), 2023 FCA 158 at paras. 18-32, leave to appeal to SCC refused, 41047 (6 June 2024).

[33] The search for accommodation is, however, a two-way street. It is the responsibility of the disabled individual to bring the facts relating to the discrimination they are experiencing to the attention of the employer or service provider: Desormeaux v. City of Ottawa, 2005 FCA 311 at para. 19, leave to appeal to SCC refused, 31230 (23 March 2006). There is also an obligation on individuals seeking accommodation to assist in securing the appropriate accommodative measures: Haynes, above at para. 30, citing Central Okanagan School District No. 23 v. Renaud, 1992 CanLII 81 (SCC), [1992] 2 S.C.R. 970, [1992] S.C.J. No. 75 at para. 43.

[34] In this case, the Associate Judge had no way of knowing, or even surmising, that Ms. Davis needed an adjournment of the hearing. When Ms. Davis stated that she had been "“thrown off”" by the Associate Judge’s questions, the Associate Judge quite reasonably responded by giving her the 10-minute break that Ms. Davis stated would be sufficient to allow her to re‑group. There was nothing unreasonable, unfair or discriminatory in the Associate Judge giving Ms. Davis precisely the accommodation that she sought.

[35] Ms. Davis did not ask the Associate Judge to hold her questions until Ms. Davis had concluded her submissions in order to avoid a disruption to her thought processes. She did ask the Federal Court judge to do so, and the Federal Court judge honoured that request. Ms. Davis’ similar request to this Court was honoured by the panel.

[36] Judges are not clairvoyant, and they cannot be expected to know how a particular individual’s disability may manifest itself in the course of a hearing. To require judges to speculate about a litigant’s disability and the specific measures that the individual may require to accommodate that disability would invite reliance on stereotypes and potentially invidious assumptions as to the abilities of the individual—precisely the things that human rights legislation is designed to avoid: Canadian Human Rights Act, R.S.C. 1985, c. H-6, s. 2.

[37] Ms. Davis states that she made numerous attempts to obtain legal advice, but that she was unable to do so. As a result, she says that the Associate Judge should have provided her with advice, including advice as to what information should be included in her statement of claim, and how she could go about challenging the provisions of the FPSLRA.

[38] In support of this contention, Ms. Davis relies on the Canadian Judicial Council’s Statement of Principles on Self-represented Litigants and Accused Persons, (September 2006) online (pdf): [archived version: http: //www.scc-csc.ca/cso-dce/2017SCC-CSC23_1_eng.pdf]. As Ms. Davis noted, the Supreme Court of Canada endorsed these principles in Pintea v. Johns, 2017 SCC 23 at para. 4.

[39] While the Statement of Principles undoubtedly provides useful guidance for participants in the justice system as to the appropriate treatment of self-represented litigants, there are clear limits to a judge’s duty to assist such individuals. In particular, the document recognizes that, in engaging in steps to protect the rights and interests of self-represented persons, judges cannot act in a manner that would compromise their neutrality and impartiality: Girao v. Cunningham, 2020 ONCA 260 at para. 151.

[40] Indeed, the Court of Appeal for Ontario relied on the Statement of Principles at paragraph 51 of Thatcher-Craig v. Clearview (Township), 2023 ONCA 96, to draw a distinction between procedural and legal advice. The Court observed that while it is within a judge’s discretion to control the court process and to grant latitude to a self-represented litigant on procedural issues, that discretion does not extend to rectifying substantive legal deficiencies.

[41] The Statement of Principles also notes that there is a distinction between providing legal information (such as the information that we provided to Ms. Davis at the outset of her hearing in this Court as to the process that would be followed and as to the appropriate content of reply submissions), and providing legal advice.

[42] As noted at page 11 of the Statement of Principles, legal advice includes, "“among other things … advising someone on how to best pursue a case”". The information that Ms. Davis faults the Associate Judge for failing to provide clearly amounts to legal advice, and it would have been inappropriate for the Associate Judge to have provided Ms. Davis with the information in issue.

[43] Ms. Davis also asserts that the Associate Judge erred by failing to appoint a lawyer to represent her at the Court’s expense, submitting that allowing her to bring a representative with her to the hearing was insufficient.

[44] It is not clear from the record that Ms. Davis ever raised this issue before the Associate Judge. She did, however, raise it before the Federal Court judge and before this Court, submitting that a legal representative should have been appointed for her in accordance with Rule 115 of the Federal Courts Rules, S.O.R./98-106, as she is a "“person under a legal disability”".

[45] Rule 115(1)(b) provides that "“[t]he Court may appoint one or more persons to represent ... a person under a legal disability against or by whom a proceeding is brought”". Rule 121 further provides that "“[u]nless the Court in special circumstances orders otherwise, a party who is under a legal disability […] shall be represented by a solicitor”".

[46] It should first be noted that there is nothing in the Rules that would require the Court to pay for a lawyer appointed under these Rules. Moreover, and in any event, as the Federal Court judge correctly advised Ms. Davis, a "“person under a legal disability”" within the meaning of the Rules is a person who lacks the legal capacity to represent themselves: Haynes, above at para. 48. Ms. Davis clearly does not come within this definition. While Ms. Davis (like most self-represented litigants) would no doubt have benefited from legal advice, she was nevertheless able to provide the Court with lengthy, detailed and carefully researched submissions.

[47] Ms. Davis has identified the very real challenges that are faced by self-represented litigants generally, and the even greater challenges that are faced by self-represented litigants who live with disabilities, as they attempt to navigate the judicial process in an effort to seek justice. These challenges have long been recognized by participants in the justice system and have been the subject of much study and commentary: Statement of Principles, above; Action Committee on Access to Justice in Civil and Family Matters, Access to Civil & Family Justice: A Roadmap for Change (Ottawa: Action Committee on Access to Justice in Civil and Family Matters, 2013). Regrettably, however, many such litigants remain unable to obtain legal advice.

[48] While I have considerable sympathy for the position in which Ms. Davis finds herself, she has failed to establish that either the Associate Judge or the Federal Court judge erred in law or made a palpable and overriding error in failing to accommodate her disabilities or provide her with legal advice or legal representation.

....

[53] I understand that as a self-represented litigant, Ms. Davis may not have appreciated the consequences of her failure to appeal the Associate Judge’s ruling on the issue of bias in a timely manner. Unfortunately, however, the fact that she is self-represented and is unfamiliar with the Court process does not provide her with special dispensation from the application of the law and the Federal Courts Rules: Nowoselsky v. Canada (Treasury Board), 2004 FCA 418 at para. 8; MacDonald v. Canada (Attorney General), 2017 FC 2 at para. 30.

. Beazley v. Johnston

In Beazley v. Johnston (Ont CA, 2024) the Ontario Court of Appeal notes the trial judge's citing of the 2006 CJC policy regarding self-presenters:

[29] She concluded, for several reasons, that the moving party had been treated in a procedurally fair manner in keeping with the Statement of Principles on Self-represented Litigants and Accused Persons (2006) (the “Statement of Principles on Self-represented litigants”), produced by the Canadian Judicial Council, and endorsed by the Supreme Court of Canada in Pintea v. Johns, 2017 SCC 23, [2017] 1 S.C.R. 470, at para. 4.

....

[77] I have organized my discussion of the moving party’s many grounds of appeal/arguments around the ruling to which they relate, but also taking account of the fact that the moving party raises certain overarching issues relevant to many, if not all of the motion judge’s rulings. These overarching issues include:

. failure to grant the leniency concerning procedural and evidentiary matters that is necessary to enable a self-represented litigant to present their case: Pintea; Jonsson v. Lymer, 2020 ABCA 167, 448 D.L.R. (4th) 275; Statement of Principles on Self-represented Litigants; Moore v. Apollo Health & Beauty Care, 2017 ONCA 383; R. v. Tossounian, 2017 ONCA 618, 354 C.C.C. (3d) 365; Girao v. Cunningham, 2020 ONCA 260, 2 C.C.L.I. (6th) 15; R. v. Morillo, 2018 ONCA 582, 362 C.C.C. (3d) 23; Gadsby v. British Columbia (Attorney General), 2019 BCSC 1596; Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87; Carbone v. McMahon, 2017 ABCA 384; Wouters v. Wouters, 2018 ONCA 26; Bernard v. Canada (Attorney General), 2014 SCC 13, [2014] 1 S.C.R. 227; and Sanzone v. Schechter, 2016 ONCA 566, 402 D.L.R. (4th) 135; and ....

. 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.

....

[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.

....

[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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