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Presentation - Limits on Logistical Help. Thatcher-Craig v. Clearview (Township)
In Thatcher-Craig v. Clearview (Township) (Ont CA, 2023) the Court of Appeal considered the nature of the legal assistance the court should give to presenting parties:[51] ... While it is within the discretion of a motion or trial judge to control the court process and in that context grant latitude to a self-represented litigant on procedural issues, that discretion does not extend to rectifying substantive legal deficiencies: see Canadian Judicial Council, Statement of Principles on Self‑represented Litigants and Accused Persons, September 2006 (online: http://www.scc-csc.ca/cso-dce/2017SCC-CSC23_1_eng.pdf), endorsed in Pintea v. Johns, 2017 SCC 23, [2017] 1 S.C.R. 470. . Duhamel v. Canada (Attorney General)
In Duhamel v. Canada (Attorney General) (Fed CA, 2022) the Federal Court of Appeal considered when an unrepresented appellant should be allowed to informally bring a motion, or when they should be required to follow the rules:[3] At the commencement of the hearing of this appeal, Mr. Duhamel confirmed that he was seeking to bring an oral motion before the Court. He indicated that his motion would be for directions under Rule 60 of the Federal Courts Rules, SOR/98-106, with respect to certain documents included in the appeal book. He also submitted that the certified record of the CJC was incomplete.
[4] Rule 60 allows the Court to permit a party who has not complied with the Rules or who has a gap in the proof of their case to remedy the problem:"60 At any time before judgment is given in a proceeding, the Court may draw the attention of a party to any gap in the proof of its case or to any non-compliance with these Rules and permit the party to remedy it on such conditions as the Court considers just. "
"60"" La Cour peut, à tout moment avant de rendre jugement dans une instance, signaler à une partie les lacunes que comporte sa preuve ou les règles qui n’ont pas été observées, le cas échéant, et lui permettre d’y remédier selon les modalités qu’elle juge équitables." [5] In this case, presumably Mr. Duhamel is relying on the authority of the Court to permit a party to remedy an alleged non-compliance with the Rules.
[6] Rule 359 stipulates how a motion is to be brought before this Court:"359 Except with leave of the Court, a motion shall be initiated by a notice of motion, in Form 359, setting out "
"359"" Sauf avec l’autorisation de la Cour, toute requête est présentée au moyen d’un avis de requête établi selon la formule 359 et précise : "
"(a) in respect of a motion other than one brought under rule 369 or 369.2, the time, place and estimated duration of the hearing of the motion; "
("a"") sauf s’il s’agit d’une requête présentée selon la règle 369 ou 369.2, la date, l’heure, le lieu et la durée prévue de l’audition de la requête; "
"(b) the relief sought; "
("b"") la réparation recherchée; "
"(c) the grounds intended to be argued, including a reference to any statutory provision or rule to be relied on; and "
("c"") les motifs qui seront invoqués, avec mention de toute disposition législative ou règle applicable; "
"(d) a list of the documents or other material to be used for the purposes of the motion. "
("d"") la liste des documents et éléments matériels qui seront utilisés dans le cadre de la requête. " [7] Rule 359 stipulates that, except with leave of the Court, a motion is to be initiated by a notice of motion in Form 359. The document identified as Appellant’s Additional Submissions is not in Form 359. In particular, the document does not identify the relief sought nor does it include any reference to any statutory provision or Rule that Mr. Duhamel would be relying on. It was only during the hearing of this appeal that Mr. Duhamel indicated that he was relying on Rule 60 and that he was seeking directions to have certain documents removed from the appeal book. Since Mr. Duhamel did not seek leave to initiate a motion otherwise than by a notice of motion in Form 359, the motion should be quashed and the Appellant’s Additional Submissions should not be filed. . Johnson v. Johnson
In Johnson v. Johnson (Div Ct, 2022) the Divisional Court judge asked the Court office to provide the presenting parties with case law relevant to their situation (here, the law on extending time for appeal). I selected this case for the novelty of them doing that, as normally the court doesn't go anywhere near providing legal advice:[11] I asked the Court office to provide the parties with a case authority with respect to the test for a motion for leave to extend time. The Court office did so by email yesterday, as follows:1250264 Ontario Inc. v. Pet Valu Canada Inc., 2015 ONCA 5, quoting Enbridge Gas Distribution Inc. v. Froese, 2013 ONCA 131, 114 O.R. (3d) 636, at para. 15 -- the test on a motion to extend the time for the delivery of a notice of appeal is as follows:The overarching principle is whether the “justice of the case” requires that an extension be given. Each case depends on its own circumstances, but the court is to take into account all relevant considerations, including: (a) whether the moving party formed a bona fide intention to appeal within the relevant time period;
(b) the length of, and explanation for, the delay in filing;
(c) any prejudice to the responding parties, caused, perpetuated or exacerbated by the delay; and
(d) the merits of the proposed appeal. . Macmull v. Ministry of Health
In Macmull v. Ministry of Health (Div Ct, 2022) the Divisional Court considered an issue of interest to presenting litigants and civil procedure practice regarding commencing proceedings. It started with a letter from the applicants whereby they "sent a request to the Divisional Court to commence an application for judicial review". The request was substantially deficient in numerous respects in substantive law, the naming of parties and in terms of the court document rules. The court noted:[6] As stated in the October 4, 2021 Rule 2.1 Notice, through case management of this matter, I gave the applicants two opportunities to correct the defects in their notice of application for judicial review and urged them to consult a lawyer. In a communication to the Court dated September 27, 2021, the applicants refused to do so and instead suggested that they should not be required to do anything further to move forward with this matter.
...
[8] As mentioned above, the applicants responded to the Court’s Rule 2.1 Notice. In their response, rather than addressing the defects identified by the Court, the applicants essentially took the position that they should not be required to comply with the legal requirements for moving this matter forward. In doing so, they suggest that it is the Court’s role to investigate their allegations that Sunnybrook mistreated their father. They also take issue with the Court’s characterization of their failure to comply with prior directions meant to assist them in moving this matter forward.
....
[13] As previously suggested in the Rule 2.1 Notice, while the applicants may have legitimate concerns about the care their father received at the hospital, they must follow the proper legal processes for bringing those concerns forward in a legal proceeding. On an application for judicial review, the scope of the Divisional Court’s powers is limited to reviewing the decision under challenge. The applicants’ proposed application does not purport to challenges the Board’s decisions and it raises issues that go far beyond the scope of this Court’s authority on an application for judicial review.
[14] While I accept the applicants’ general proposition that the Court should make some allowances for the fact that they are self-represented, this does not extend to allowing the applicants to bring forward a proceeding that names the wrong parties and that does not state proper grounds for judicial review. While self-represented litigants can be excused from complying with some of the Court’s formal requirements in appropriate circumstances, they nevertheless have an obligation to inform themselves about court processes and to ensure that their proceedings are tenable at law.
[15] Finally, I appreciate that the proposed application for judicial review arises from the death of the applicants’ father. Their father’s death has no doubt caused significant distress and grief. However, if the applicants wish to bring forward legal proceedings arising from their father’s death, they must nevertheless advance a tenable legal claim. An application for judicial review that does not name the proper respondents and that addresses issues that do not arise from the proceedings before the Board is not such a proceeding. Ultimately the court dismissed the matter under Rule 2.1 for being frivolous and vexatious.
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