Rarotonga, 2010

Simon's Legal Resources


ADMINISTRATIVE LAW | SPPA / Fairness (Administrative)

home / about / Democracy, Law and Duty / testimonials / Donate law books! / Conditions of Use

Presentation - Judge/Adjudicator Duties to Presenters

. D.M. v. The Children’s Aid Society of Ottawa

In D.M. v. The Children’s Aid Society of Ottawa (Div Ct, 2021) the Divisional Court reviewed the court's burden when dealing with presenting parties (here in a family law case):
[184] Further, in Kawartha Haliburton Children’s Aid Society v. M.W, the Court of Appeal held that the court must provide assistance to self-represented litigants in accordance with the principles set out in the Statement of Principles on Self-represented Litigants and Accused Persons[40] established by the Canadian Judicial Council. These principles include the following: (a) access to justice for self-represented persons requires all aspects of the court process to be, as much as possible, open, transparent, clearly defined, simple, convenient and accommodating; (b) 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; and (c) judges should ensure that procedural and evidentiary rules are not used to unjustly hinder the legal interests of self-represented persons.
. R. v. McNeice

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



The author has waived all copyright and related or neighboring rights to this Isthatlegal.ca webpage.