Lawyers say a recent Court of Appeal decision illustrates the challenges trial judges can face when presiding over matters with self-represented litigants, as well as the responsibilities justices owe them.
“Where the evidence of a self-represented party raises a question in the trial judge’s mind about the specific relief the party is seeking, a trial judge must make the appropriate inquiries of the party to clarify the matter,” Justice David Brown wrote in the decision, on behalf of a three-judge panel.
“Those inquiries must be made in a clear, unambiguous, and comprehensive way so that several results occur . . .”
Lawyers say the decision highlights a balancing act that judges face, which requires they weigh their responsibility to make sure self-represented litigants are treated fairly, with the need to be even-handed.
“It is a fine line and it’s one that’s becoming more pronounced certainly as we see more self-represented litigants in court,” says Jay Skukowski, a partner with Blaney McMurtry LLP. The decision concerned whether trial judge Michael Bay had erred by dismissing the plaintiff’s claim.
The plaintiff, who was a self-represented litigant, sued her former employer for constructive dismissal and other damages. Bay dismissed the claim for constructive dismissal because the employer had given her appropriate termination notice. He also dismissed a claim for unpaid wages, statutory holidays and sick days, concluding the plaintiff had abandoned this part of the claim based on her answer to a question concerning whether she was going to provide an accounting of it.
The Court of Appeal upheld Bay’s finding concerning the claim for constructive dismissal, but it reversed his decision about the unpaid amounts. Brown said that Bay’s conclusion was based on a “misapprehension of Ms. Moore’s evidence and therefore must be set aside.”
The court found that both Bay and an appeal judge at the Divisional Court, which heard an appeal of the decision, erred and failed to take a “proper approach” in determining whether she had in fact abandoned part of her claim.
Nicholas Bala, a law professor with Queens University, says the trial judge did not make it clear enough to the plaintiff that her response to a question concerning accounting of the unpaid wages could constitute abandonment of that part of the claim.
“Clearly, the trial judge can’t provide advice, but he should provide information and certainly emphasize where a decision is being made,” he says.
In the decision, the Court of Appeal acknowledged a “new reality” of civil litigation in which courts are seeing a significant number of self-represented litigants. This requires trial judges to take the time to ask extra questions “to nail down, with clarity for all, the claims of the self-represented person upon which he will adjudicate,” Brown said.
The court found that while deputy judges in Small Claims Court have to deal with huge volume pressures, trial fairness requires them to take the extra time with self-represented litigants.
Julie Macfarlane, a law professor at the University of Windsor and the director of the National Self-Represented Litigants Project, says there have been conflicting decisions in lower courts on the issue.
“It’s pretty interesting watching how the courts are responding to this,” she says.
“Some of them have been adamant that self-represented litigants should be treated exactly the same way as represented parties and some of them have made the more sophisticated point that you cannot treat them as being formerly equal.”
She says the Apollo decision illustrates an ideological battle that has been happening between those who believe the courts should not treat self-represented litigants differently and those who believe judges have the responsibility to take the time to make sure they understand procedures.
“If they don’t know enough to actually participate and are shooting themselves in the foot, we need to tell them that they’re shooting themselves in the foot,” Macfarlane says.
Lawyers say the decision also reinforces a statement of principles concerning self-represented litigants that was issued by the Canadian Judicial Council in 2006. These principles outlined the challenges and responsibilities judges face when dealing with self-represented litigants.
In April, the Supreme Court of Canada endorsed the principles in Pintea v. Johns, a decision that determined a self-represented litigant was not in contempt of court for failing to appear at conferences after the court sent notices to his old address.
The NSRLP had intervened in that case to propose a test — called a reasonable assistance test — that would determine when a judge should provide assistance when a self-represented litigant does not understand the basic principles of the proceedings. The test would hold that a judge should provide assistance to a self-represented litigant, as long as it does not prejudice the other party, in instances where the litigant would benefit from assistance on a matter that is critical to ensure their procedural or substantive rights, could have an effect on the outcome or was necessary to ensure the litigant was treated fairly.
The Supreme Court fell short of issuing such a test to Macfarlane’s disappointment.
Amer Mushtaq, a partner with Formative LLP, says courts have only just begun to consider the many issues surrounding self-represented litigants.
“We’re just scratching the surface and I think it’s going to get more complex,” he says. “And at some point, we will have a better response to how we want to deal with self-represented litigants in the courtroom.”
Macfarlane’s research for the NSRLP has shown that the number of self-represented litigants in family and civil courts has been dramatically increasing since the early 2000s. In some family courts, the number of people representing themselves sometimes makes up to 80 per cent of litigants.
In 2011-2012, 64 per cent of litigants who filed applications in Ontario under the Family Law Act, the Children’s Law Reform Act or the Divorce Act were self-represented, according to government statistics.
Macfarlane says this increase has presented unique challenges for judges, who have to deal with the pressures of large caseloads but must also ensure litigants are treated fairly.
She adds that if the assistance a judge needs to provide is going to greatly disrupt proceedings, there should be resources to which the courts can refer self-represented litigants.
Macfarlane says the increasing number of self-represented litigants that engage with the court system every year is not going to change unless there are significant changes to the way legal services are offered. One such change is an increase in unbundled services, she says.
“Self-represented litigants want help,” she says.
“It’s not like they wake up in the morning and think I want to be a lawyer. They want help, but the problem is that the way that help is given in what is still a traditional retainer full-representation model in the vast majority of cases — people don’t want and can’t afford that type of help.”
The lawyer representing the employer in Apollo declined to comment. The self-represented litigant could not be reached for comment.