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Presentation - Judge/Adjudicator Duties to Presenters. Aslam v. Canada
In Aslam v. Canada (Fed CA, 2024) the Federal Court of Appeal considered the Tax Court's treatment of a self-presenting party:[6] Mr. Aslam submits that in this tax appeal, the Tax Court did not give him, an unrepresented litigant, a fair hearing. We disagree. At the outset of the hearing, the Tax Court briefly explained the procedure (Transcript, pp. 1, 5 and 8-9). After Mr. Aslam had adduced his evidence, the Tax Court twice confirmed that Mr. Aslam had offered all the evidence he had available to him and had no other testimony to offer (Transcript, pp. 54-55). Near the end of the hearing, during submissions, the Tax Court explained the legal test for donative intent (Transcript, pp. 74-75 and 82-85), acquainting Mr. Aslam with the case to meet. The Tax Court also asked questions to ensure it understood Mr. Aslam’s positions and to give him an opportunity to explain them (Transcript, pp. 74-75). At one point in the hearing, the Tax Court allowed Mr. Aslam to provide more testimony after the evidentiary phase of the tax appeal had ended (Transcript, p. 75). In oral argument, Mr. Aslam did confirm that the Tax Court did intervene to try to assist him from time to time. Overall, the Tax Court gave Mr. Aslam a full and fair opportunity to adduce evidence and make submissions responsive to the relevant factual and legal issues; in fact, in oral argument before us, Mr. Aslam admitted that the Tax Court was being "“helpful”" with its questions and interventions during the hearing. And, finally, in making its decision, the Tax Court appears to have carefully considered all of Mr. Aslam’s evidence and submissions. . Currie v. Peel District School Board
In Currie v. Peel District School Board (Div Court, 2024) the Divisional Court dismissed a labour-OSHA JR.
Here the court assessed the 'reasonableness' of the OLRB's treatment of the applicant's self-presenting status:[48] A tribunal is required to conduct its proceedings fairly. While the applicant did not directly raise the issue of procedural fairness in his submissions, we are satisfied that he was afforded procedural fairness with respect to his OLRB applications and request for reconsideration.
[49] In that regard, we note that the OLRB was mindful of the applicant’s status as an unrepresented party and made appropriate efforts to ensure he was treated fairly. Among other things, as noted in the Reconsideration Decision, at para. 29, the OLRB panel, being “cognizant” of the applicant’s lack of legal representation, explained the hearing process in detail, including the requirement to “adduce all evidence that he wished to rely upon during the hearing”. The panel also advised the applicant that “he was entitled to call any evidence he wished in support of his claims of reprisal under section 50 of the Act”: Reconsideration Decision, at para. 34. The OLRB reasonably concluded that the applicant had “a full opportunity to adduce evidence and make submissions in support of the Applications”. . R. v. Bancroft
In R. v. Bancroft (Ont CA, 2024) the Court of Appeal considered a judge's duty to a self-presenter, here in a criminal context:(1) The Governing Principles
[6] The governing principles are summarized in R. v. Forrester, 2019 ONCA 255, 375 C.C.C. (3d) 279, at paras. 15-19. I reproduce them here without the internal citations. The primary principle is this: A trial judge has a duty to assist a self-represented accused and to guide him or her throughout the trial so that his or her defence is brought out with its full force and effect.
[7] The scope of this duty depends on the context and is circumscribed by what is reasonable in the particular circumstances of the case. A trial judge, of course, has other duties to ensure that the trial is effective, efficient, and fair to both sides. The trial judge must ensure that the trial does not become mired in irrelevant evidence and that the rules of evidence are applied fairly to both parties.
[8] To warrant allowing an appeal on this ground, the trial judge’s failure to assist a self-represented accused must be material to the outcome of the case. Such a failure is not an independent ground of appeal but raises the possibility of an unfair trial or miscarriage of justice that might attract appellate intervention under s. 686(1)(a)(iii) of the Criminal Code, R.S.C. 1985, c. C-46. Not every breach of a trial judge’s obligation to assist a self-represented accused will render a trial unfair or result in a miscarriage of justice. The court must assess the cumulative effect of any breaches. The assessment must be holistic so that the appellant’s arguments are considered in the context of the trial as a whole. The court must determine whether, at the end of the day, the accused had a fair trial or whether, on the contrary, a miscarriage of justice occurred.
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C. DISPOSITION
[45] To sum up, the primary principle is that a trial judge has a duty to assist a self-represented accused and to guide him or her throughout the trial so that his or her defence is brought out with its full force and effect. The trial judge did not give adequate assistance to Mr. Bancroft.
[46] The trial judge made two general errors. First, the trial judge was not alive to a misunderstanding that was evident in Mr. Bancroft’s approach to the evidence. Mr. Bancroft did not know the difference between evidence and argument. Nor did he know that to impeach a witness with prior inconsistent evidence he needed to put the inconsistent statement to the witness in cross-examination. Finally, the trial judge erred in not permitting Mr. Bancroft to correct for this misunderstanding by recalling a witness and by giving him a way to put forward transcripts and banking records.
[47] However, to warrant allowing the appeal, the trial judge’s failure to assist a self-represented accused must be material to the outcome of the case. Such a failure is not an independent ground of appeal but raises the possibility of an unfair trial or miscarriage of justice that may attract appellate intervention under s. 686(1)(a)(iii) of the Criminal Code. The court must determine whether at the end of the day, the accused had a fair trial or whether, on the contrary, a miscarriage of justice occurred. . Teixeira v. Akelius Canada Ltd.
In Teixeira v. Akelius Canada Ltd. (Div Court, 2023) the Divisional Court assisted a tenant in an s.210 RTA appeal as follows:[4] In my directions, I provided Mr. Teixeira with the test for seeking an extension of time as set out in Enbridge Gas Distribution v. Froese, 2013 ONCA 131, .... . Haynes v. Canada (Attorney General)
In Haynes v. Canada (Attorney General) (Fed CA, 2023) the Federal Court of Appeal considered some duties owed by judgees to represented parties:[10] I pause to point out that, when unrepresented litigants appear before courts, caution is required. It is worth reminding in this regard that judges are advised to ensure that self‑represented litigants are treated fairly and are in a position to fully understand and participate in a proceeding (Canada (Public Safety and Emergency Preparedness) v. Ewen, 2023 FCA 225 at para. 30). For unrepresented litigants with a disability, as is the case here, courts are invited to exercise an extra layer of caution and awareness (Haynes v. Canada (Attorney General), 2023 FCA 158 at paras. 33-34). For one reason or another, this seems to have been overlooked here. . Wilson v. Meeches
In Wilson v. Meeches (Fed CA, 2023) the Federal Court of Appeal considers the limited role of 'motions for direction':[30] Sometimes litigants seek directions from the Court on how to proceed. This is futile. Motions for directions, available in narrow circumstances in Rule 54 of the Federal Courts Rules, S.O.R./98-106, are not a means of getting free legal advice from the Court. The parties themselves must figure out the civil procedure and the litigation strategy: Bernard v. Canada (Revenue Agency), 2015 FCA 263, 479 N.R. 189 at paras. 37-47; Olumide v. Canada, 2016 FCA 287 at paras. 14-23. Smart parties go one step further: they prepare their stay and expedite material before the first-instance decision comes down, just in case it goes against them and they have to act right away. . James v. Amazon.com.ca, Inc.
In James v. Amazon.com.ca, Inc. (Fed CA, 2023) the Federal Court of Appeal considered an appeal from a Federal Court application decision "that dismissed her application pursuant to section 14 of the Personal Information Protection and Electronic Documents Act, S.C. 2000, c. 5 (PIPEDA)". This brief quotes illustrates the sometimes (though rare) treatment of self-presenters:[9] Ms. James’ arguments in respect of the issues she raises are too numerous to address each individually. It is sufficient to say that we are not convinced that the Federal Court erred in law or made any palpable and overriding error on any of the issues she raises. . Tran v Office of the Independent Police Review Director
In Tran v Office of the Independent Police Review Director (Div Court, 2023) the Divisional Court commented as follows in a R2.1 dismissal of an application, here regarding the degree to which the court and court staff have (and have not) a duty to assist litigants:[5] The court is not required to advise parties about their appeal rights from the court’s decisions, but the court does so as a courtesy, and, in this case, to assist a self-represented litigant navigate the justice system. Where a party expresses an intention to make a complaint about a judge, the court will provide the party with information about where to make that complaint. The court is not required to provide legal advice to parties about appeals and complaints, or to defend or explain its advice to parties on these topics.
[6] Ms Tran’s proceedings in this court against the OIPRD are now concluded. Her recourse from the court’s recent decision has been explained to her. The court will not explain its decisions further.
[7] Ms Tran claims that court staff at the Ontario Court of Appeal have expressed uncertainty about the appeal rights that flow from this court’s decision. If Ms Tran provides copies of this court’s R. 2.1 decision to Court of Appeal staff, any difficulty should be addressed easily. The R. 2.1 decision is not a decision of a “motion judge”, but rather is a final disposition from the Divisional Court, appealable with leave to the Ontario Court of Appeal: Courts of Justice Act, s. 6(1)(a). It is a decision of a single judge of the Divisional Court, rather than a panel, because all R. 2.1 matters in Divisional Court have been directed to be heard and decided by a single judge of the Divisional Court pursuant to s. 21(2)(c) of the Courts of Justice Act, a procedure that has been in place for many years.
[8] Ms Tran’s repeated vexatious communications with court staff are an unwarranted use of staff time. Henceforth, all communications from Ms Tran shall be sent to a Divisional Court judge, and ordinarily no response to those communications will be provided to Ms Tran. I am seized with this task, and if I am unavailable, then communications from Ms Tran should be sent to an administrative judge of the Divisional Court or their designate. . Rassouli-Rashti v. Tayefi
In Rassouli-Rashti v. Tayefi (Ont CA, 2023) the Court of Appeal considered an appeal against the lower court's exercise of it's 'trial management powers', here with a presenting party. This novel appellate issue (that of a 'trial management power', one apparently first raised by the appellate court) strikes me as an appellate sham. It avoids the substantial issues - which were whether the court fulfilled it's fairness duties to a presenting (ie. self-representing) party - by raising 'trial management' as a potential appellate issue. That is, the court made the issue that of whether the lower court's exercise of their 'trial management powers' was acceptable or not. As such, the Court of Appeal here opens the door to some unfairness being tolerable - outside the normal logic of appellate deference:(iii) The trial judge erred in his conduct of the trial and in his failure to ensure trial fairness for the appellant, a self-represented litigant, by: a) prohibiting the appellant from cross-examining Dr. Rassouli-Rashti on his professional discipline conviction for lying to his disciplinary regulator; and b) refusing to allow the appellant to refer to an outline while testifying.
[19] The appellant’s grounds here challenge the exercise of the trial judge’s trial management powers. Given their discretionary nature, absent error in principle or unreasonable exercise, deference is owed on appeal to trial management decisions: R. v. Samaniego, 2022 SCC 9, 466 D.L.R. (4th) 581, at paras. 25-26. However, erroneous evidentiary rulings and trial unfairness cannot be justified under trial management. No deference is owed to a trial management decision that amounts to an error in principle or an unreasonable exercise of discretion, or that otherwise renders a trial unfair: Katz v. Zentner, 2022 BCCA 371, at paras. 61-62, 76; R. v. Wesaquate, 2022 SKCA 101, 418 C.C.C. (3d) 225, at paras. 95-96; Ker v. Sidhu, 2023 BCCA 158, at paras. 80-84; Samaniego, at para. 26. Appellate review of trial management decisions requires a contextual approach; it is important to consider them in the context of the trial as a whole, rather than as isolated incidents: Samaniego, at para. 26. . 774161 Canada Ltd. v. Ford
In 774161 Canada Ltd. v. Ford (Div Court, 2023) the Divisional Court considered the duties owed by a Small Claims trial judge to a presenting party:[25] Where parties are self-represented, a trial judge has a special duty to acquaint parties with courtroom procedures and the rules of evidence. They must accommodate self-represented parties who are unfamiliar with trial processes and help them present their case: Dujardin v. Dujardin Estate, [2018] O.J. No. 3545, 2018 ONCA 597, 423 D.L.R. (4th) 731, at para. 37; Gionet v. Pingue, [2018] O.J. No. 6661, 2018 ONCA 1040, 22 R.F.L. (8th) 55, at para. 30; Davids v. Davids, 1999 CanLII 9289 (ON CA), [1999] O.J. No. 3930, 125 O.A.C. 375 at para. 36.; Manitoba (Director of Child and Family Services) v. A. (J.), [2006] M.J. No. 171, 2006 MBCA 44, at paras. 19-20. . 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.
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