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ADMINISTRATIVE LAW | SPPA / Fairness (Administrative)

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Presentation - Brave Stories

. Murray v. Office of the Independent Police Review Director

In Murray v. Office of the Independent Police Review Director (Div Court, 2023) the Divisional Court struck out a prolix self-presenter's JR application of an OIPRD's decision that, once a police officer had resigned, the OIPRD lost jurisdiction. Corbett J, sitting for the Divisional Court, held that the only 'remedy' left to the applicant was certiorari striking the OIPRD decision, and gave leave for her to re-file accordingly:
[3] On November 17, 2022, the OIPRD advised the applicant that the sole remaining police officer named in Ms Murray’s complaint had resigned from their employment and was no longer a police officer. The OIPRD advised that, pursuant to s.90 of the Police Services Act, it had no jurisdiction to continue its investigation into the matter, and so the review request would proceed no further.

[4] Ms Murray then commenced this proceeding, seeking review of the OIPRD report and that this court adjudicate the underlying complaint, since the OIPRD had lost jurisdiction to do so. Ms Murray alleged that this court has inherent jurisdiction to carry on with the complaint now that the OIPRD has lost jurisdiction.


[7] I understand Ms Murray’s frustration. Her lengthy, detailed argument, which she describes as an “essay”, is based on the fundamental principle of public law that arguable legal claims may be brought to an administrative body or court for adjudication. If no administrative body or court has statutory jurisdiction over a legal claim, then, as a matter of first principles, a court with inherent jurisdiction must have jurisdiction over that claim: in a society governed by the Rule of Law, there is always recourse available somewhere for adjudication of a legal claim. Ms Murray is self-represented, and if she has been unable to identify the correct venue for her claim, then it is the responsibility of the court to guide her in the right direction. In aid of her argument, Ms Murray has expounded on:
- The intersection of certiorari and inherent jurisdiction

- “misplaced, if widespread, American ideas about local or “state” jurisdiction in Canadian law”

- “using the Socratic method, resulting in the construction of a simplified syllogism”

- “self-certiorari” (“as a life tactic, is under-utilized and highly advised, so long as it does not reach a level of neuroticism”)

- The second Quebec Reference (the provincial legislature “cannot in any way interfere with the federally distributed inherent jurisdiction of the s.96 court of inherent jurisdiction”)

- “federalism as an unchecked leviathan in Canadian constitutional law”

- “this application is one of inherent jurisdiction, explicitly, that makes a request for certiorari over the exercise of the specific judicial function of evaluating the legality of an arrest (habeas corpus), which is the core jurisdiction of the s.96 court of inherent jurisdiction”

- The OIPRD does not have original jurisdiction to rule on the legality of an arrest, but may consider and decide this question to the extent that it is necessary to so do to carry out its role investigating a complaint (my words, synthesizing the applicant’s argument)

- An OIPRD decision that includes findings about the legality of an arrest may be raised as a basis for an estoppel in other proceedings in which this issue is raised (such as a civil claim or a human rights claim) (my words, synthesizing the applicant’s argument).

- The OIPRD report is “patently unreasonable” and “contains defamatory statements” about the applicant, and may be used against the applicant in related civil and/or administrative proceedings
[8] The Divisional Court is a statutory appellate and review court. It is not a court of inherent jurisdiction. This is well-trod ground and the applicant’s submissions to the contrary are without merit.

[9] The subject-matter of the applicant’s complaint to the OIPRD has disappeared. This court has no more jurisdiction to decide this complaint than does the OIPRD. This does not leave a “gap” to be filled by a court of inherent jurisdiction: there is no subsisting claim now that the police officers implicated in Ms Murray’s complaint have all left their employment with police services. Ms Murray’s concern that there must be a court with jurisdiction to rule on the legality of the arrest is misplaced: court’s do not rule on factual issues in the abstract: if the legality of the arrest is relevant to a subsisting legal claim, the court with jurisdiction over that claim may decide the point.

[10] However, there is one aspect of Ms Murray’s application which could be pursued in this court: a request for an order in the nature of certiorari quashing the OIPRD report of October 7, 2022. No further remedy is now possible: this court cannot remit the matter back to the OIPRD for further proceedings, nor may this court take original jurisdiction itself to decide the complaint.

[11] What would be the point of such an application? Ms Murray is concerned that the findings in the report could be used against her in other civil or administrative proceedings (such as a civil claim or a claim to the Human Rights Tribunal). It is not clear that principles of issue estoppel could lead to this result, in this case, but I acknowledge Ms Murray’s concern on this point and conclude that I should not decide this question summarily under R.2.1: this concern is at least arguable.
. Potomski v. The Landlord and Tenant Board et al.

In Potomski v. The Landlord and Tenant Board et al. (Div Court, 2022) the Divisional Court considered a non-compliant, but timely, motion for a stay (in part) within a judicial review of an LTB decision (Note: most LTB review activity is by RTA 210 which is by appeal, not judicial review - but there has been much activity lately about using judicial reviews for other than questions of law). The applicant was an unrepresented senior and was obviously trying to abide by the complex procedures of the court but, in the court's view got his procedures wrong [if he appealed he would be temporarily granted the auto-stay under SPPA 25(1)]. The court sent him back to follow then-recently-changed (post-COVID) April 2022 practice directives which add further complexity to an already complex process. Notably, the underlying issue that the applicant lost on before the LTB appeared to be the minor one of whether the applicant/tenant could pay his rent by email transfer as insisted by the applicant, as opposed to cheque or money order as insisted by the landlord.

The case suggests a situation of the court system creating yet further additional barriers to a sincere but unrepresented senior applicant who had throughout the intention to pay rent and to 'be heard' by the court. That such a litigant found themselves further stymied by procedure in a clear case of the triumph of form over substance, gives rise to serious questions about whether justice can be done for unrepresented vulnerable parties in our highly complex and information-atomized court system. A colleague of mine recently described our organization of law as 'obscurantism', and that seems fair to describe the root problem here, despite the good intentions of the judge in this case.

. Girao v. Cunningham

The case of Girao v. Cunningham (Ont CA, 2020) is a remarkable ruling. That it had to be written this way is an embarrassment to the legal profession. It should be read by any litigation lawyer, especially those practicing MVA litigation, as a salutory lesson in dealing with presenting parties. On it's face it was an appeal of an MVA tort jury award, but the Court of Appeal took the oppourtunity to review numerous (sadly, necessary) basics of civil litigation. Dealing at trial with a plaintiff unrepresented by a lawyer, one who relied on a Spanish interpreter throughout, the Court of Appeal used defence behaviour as object lessons in why these legal principles are important and in the end, took the unusual step of ordering a new trial from scratch [paras 7, 173-174].

I'll go through the legal principles one by one as per topic, here the role of the trial judge and counsel where one party is presenting personally:
[149] Numerous trial fairness concerns arise for self-represented litigants. In Pintea v. Johns, 2017 SCC 23, [2017] 1 S.C.R. 470, at para. 4, the Supreme Court endorsed the Statement of Principles on Self-represented Litigants and Accused Persons (2006) issued by the Canadian Judicial Council. The Statement provides guidance to the judiciary on how to ensure litigants “understand and meaningfully present their case, regardless of representation”: at p. 2. The enumerated principles appear under the following headings: promoting rights of access, promoting equal justice, and responsibilities of the participants in the justice system. The Statement sets out directions for the judiciary, court administrators, self-represented persons, and members of the bar. The section on promoting equal justice is particularly relevant. 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.
[150] In Morwald-Benevides v. Benevides, 2019 ONCA 1023, 148 O.R. (3d) 305, 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.
[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. As Brown J.A. said in Sanzone v. Schechter, 2016 ONCA 566, 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.” In order to preserve fairness in a trial, “the trial judge must, of course, respect the rights of the other party”: Davids, at para. 36.

[152] Turning now to counsel’s duties as officers of the court. I note that the professional ethical obligations of a lawyer toward a self-represented litigant is 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.[2] I would further note that lawyers have more general ethical obligations when acting as an advocate, such as the duty to bring to the court’s attention any binding authority that the lawyer considers to be directly on point that has not been mentioned by an opponent: see generally, Rules of Professional Conduct, ch. 5, s. 5.1-2.


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