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Presentation - Canadian Judicial Council '2006 Statement of Principles on Self-represented Litigants and Accused Persons' (2). Royal Bank of Canada v. Lendak
In Royal Bank of Canada v. Lendak (Ont Divisional Ct, 2024) the Ontario Court of Appeal dismissed an appeal from a Small Claims RBC bank action (which had been transferred from the Superior Court - Simplified Procedure), claiming credit line and credit card debt.
Here the court canvasses the Canadian Judicial Council’s '2006 Statement of Principles on Self-Represented Litigants and Accused Persons':[67] A trial court has a duty to ensure that all parties, including self-represented litigants, receive a fair hearing. With respect to self-represented litigants, the court’s obligations 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 at para. 4.
[68] An important function of the court is to ensure that the trial procedure is fair and balanced so that the parties are able to fairly advance their positions and obtain a judgment based on the merits of the case: Girao v. Cunningham 2020 ONCA 260 at paras. 149-151.
[69] The Statement of Principles on Self-Represented Litigants and Accused Persons sets out directions for the judiciary with respect to promoting equal justice. It states:1. Judges and court administrators should do whatever is possible to provide a fair and impartial process and prevent an unfair disadvantage to self-represented persons.
2. Self-represented persons should not be denied relief on the basis of a minor or easily rectified deficiency in their case.
3. Where appropriate, a judge should consider engaging in such case management activities as are required to protect the rights and interests of self-represented persons. Such case management should begin as early in the court process as possible.
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. [70] The Statement also provides guidance with respect to the responsibilities of the participants in the justice system. Specifically, it states at page 6: “All participant are accountable for understanding and fulfilling their roles in achieving the goals of equal access to justice, including procedural fairness”.
[71] The Statement goes on to provide: “Judges and court administrators have no obligation to assist a self-represented person who is disrespectful, frivolous, unreasonable, vexatious, abusive, or making no reasonable effort to prepare their own case”.
[72] The Statement also provides the following guidance to the Judiciary:1. Judges have a responsibility to inquire whether self-represented persons are aware of their procedure 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.
2. 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.
3. Judges should ensure that procedural and evidentiary rules are not used to unjustly hinder the legal interests of self-represented persons. [73] In Girao, Lauwers J.A. summarized principles to be applied in a case involving a self-represented person as follows at paras. 150-151:In Morwald-Benevides v. Benevides, 2019 ONCA 1023, 148 O.R. (3d) 305(Ont. C.A.), I surveyed some of the responsibilities that trial judges have to self-represented litigants, and noted, at para. 34:It is no longer sufficient for a judge to simply swear a party in and then leave it to the party to explain the case, letting the party flounder and then subside into unhelpful silence. As this court has noted, "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": Dujardin v. Dujardin, 2018 ONCA 597, 423 D.L.R. (4th) 731, at para. 37, repeated in Gionet v. Pingue, 2018 ONCA 1040, 22 R.F.L. (8th) 55, at para. 30. The court added, at para. 31 of Gionet: "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", citing Davids v. Davids (1999), 1999 CanLII 9289 (ON CA), 125 O.A.C. 375, at para. 36. See also Manitoba (Director of Child and Family Services) v. J.A., 2006 MBCA 44, at paras. 19-20. 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. As Brown J.A. said in Sanzone v. Schechter, 2016 ONCA 566, 402 D.L.R. (4th) 135 (Ont. C.A.) 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." In order to preserve fairness in a trial, "the trial judge must, of course, respect the rights of the other party": Davids v. Davids [1999] CarswellOnt 3304 (Ont. C.A.) ], at para. 36. . 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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