By James Cooper
In the decade since the Canadian Judicial Council published its Statement of Principles on Self-Represented Litigants and Accused Persons, there has been a developing body of case law across Ontario that recognizes the obligation of trial judges to sensitize themselves to the unique needs of litigants who represent themselves at court.
The CJC’s Statement of Principles, though advisory in nature, has already been referenced in a number of cases, increasingly solidifying those principles as case law precedent.
According to the CJC, “judges, the courts and other participants in the justice system have a responsibility to promote opportunities for all persons to understand and meaningfully present their case, regardless of representation,”
The CJC has sought to sensitize participants in the legal system to the fact that “the average person may be overwhelmed by the simplest of court procedures.” A common barrier to equal justice for unrepresented parties is that both judges and court administrators are often ill prepared and ill equipped to provide such parties with the sufficient legal information they need in order to present their cases to the best of their abilities.
In practice, judges and court administrators fear that they might unintentionally cross the red line that divides the provision of legal information from the provision of legal advice – a potential complication that might arise any time a judge or court administrator interacts with unrepresented parties to familiarize them with the applicable court rules for their case.
In recognition of that potential complication, the CJC advises that courts, judges, and professional legal associations ensure that unrepresented parties have sufficient access to materials that concisely set out the procedural information a self-represented litigant would require. Where such materials are not available, the CJC advises that judges and administrators be provided with the proper protocols for understanding the dividing line between legal information and legal advice.
In the years since the CJC published its Statement of Principles, a number of such protocols have been formulated by way of case law precedent. The recent Ontario Superior Court of Justice decision in Watterson v. Canadian EMU Co-Operative Inc., 2016 ONSC 6744, referenced the CJC’s Statement of Principles, noting that they “encourage judges to provide substantive assistance to self-represented parties”, and that:
The Statement suggests that judges help self-represented litigants by:
a) Explaining not just the applicable procedures, but also the relevant law and its implications;
b) Providing self-represented litigants with information to assist them in asserting their rights and raising arguments before the court; and
c) Ensuring that procedural and evidentiary rules are not used to unjustly hinder the legal interests of self-represented parties.
The Court in Watterson determined that an unrepresented litigant was entitled to procedural fairness in the context of their overall unfamiliarity with court processes. Where a tribunal is insufficiently alert to its responsibility in ensuring that such a litigant is properly informed of their rights to rectify certain procedural deficiencies on their part, the tribunal’s decision might be subject to an appeal based on a denial of procedural fairness.
In making its determination, the Court in Watterson referenced the Ontario Court of Appeal in the 1999 decision of Davids v. Davids, which noted:
Fairness does not demand that the unrepresented litigant be able to present his case as effectively as a competent lawyer. Rather, it demands that he have a fair opportunity to present his case to the best of his ability. Nor does fairness dictate that the unrepresented litigant have a lawyer’s familiarity with procedures and forensic tactics. It does require that the trial judge treat the litigant fairly and attempt to accommodate unrepresented litigants’ unfamiliarity with the process so as to permit them to present their case. In doing so, the trial judge must, of course, respect the rights of the other party.
The Court in Watterson went on to cite the 2010 decision of the Ontario Court of Appeal in Toronto Dominion Bank v. Hylton, which noted:
Once again, the fact that a party is self-represented is a relevant factor. That is not to say that a self-represented party is entitled to a “pass”. However, as part of the court’s obligation to ensure that all litigants have a fair opportunity to advance their positions, the court must assist self-represented parties so they can present their cases to the best of their abilities.
What has entered common law precedent in Ontario, then, is this notion that a trial judge – in the words of Watterson – “[has] an obligation to assist the self-represented litigant…to the extent necessary to ensure that he could present his case to the best of his abilities [my emphasis].”
But what exactly would this obligation consist of? The judge in Watterson provides some guidance:
[The trial judge] failed to comply with that obligation when he failed to advise Mr. Watterson [the unrepresented litigant]that he could request an adjournment for the purpose of preparing to cross-examine [the other party’s] witnesses, or for the purpose of summonsing witnesses in response to [the other party’s] witnesses or preparing to testify himself in response to their evidence.
The trial judge failed to give the necessary explanations to Mr. Watterson, on the basis that doing so would be giving him advice as to how to conduct his trial. There is a fundamental distinction between advising a litigant as to what he should do, and providing information to the litigant as to what his procedural rights are and what means are available to him for exercising them.
By withholding from Mr. Watterson the information he obviously needed, the trial judge gave [the other party] an unnecessary and unfair advantage from having legal representation [emphasis mine]. It was reasonable, having regard to the trial judge’s silence as to his right to request an adjournment, for Mr. Watterson to interpret the trial judge’s question as to whether he would be testifying, as an indication that his only choices were to testify then, or not at all.
Having regard to Mr. Watterson’s obvious lack of knowledge of his procedural rights [emphasis mine], it was incumbent on the trial judge to ensure that the procedural rules were followed or, when they were not, to advise Mr. Watterson of his right to object and request an adjournment for the purpose of meeting the evidence that was to be called against the defendants. Failing to do so compromised the fairness of the trial and resulted in a denial of natural justice.
The Court went on to determine that the judge additionally erred in failing to appreciate that the unrepresented litigant did not understand the difference between pleadings and evidence:
Mr. Watterson clearly regarded any testimony he might give as simply a re-statement of the information he had already given in his pleading, rather than as a necessary transmission of the facts in the form of admissible evidence. He did not understand that, having pleaded the facts, he was required to testify to them, or call witnesses to testify, if he intended to rely on those facts. In these circumstances, it was incumbent on the trial judge to explain that difference to Mr. Watterson [emphasis mine], to explain that the court could not treat the Defence as evidence, and that if he did not call a witness, or testify himself, the court would have no basis upon which to accept, as proven, the facts which the defendants had set out in their Defence.
The Court additionally referenced the opinion of the Ontario Court of Appeal in the case of O’Brien v. Griffin, in which an unrepresented family litigant had attempted to admit as evidence a notarized letter, but was refused on the ground that he did not present the document in affidavit form. Nor was the writer of the letter available to testify as a witness to its contents.
The Court of Appeal determined that the unrepresented family litigant “had not understood what was required of him to secure the admission of the proposed evidence at trial.” The Court held that the trial judge thereby “failed in her duty to assist the self-represented litigant when she refused his request for an adjournment” without adequately explaining “what was required of him to secure the admission of the proposed evidence at trial.”
Citing another Divisional Court case, the judge in Watterson went on to describe an additional obligation with respect to a judge’s treatment of self-represented litigants:
Courts have held that, even when a self-represented party does not explicitly request an adjournment, fairness requires that the adjudicator propose one…
…According to the court, because the respondent was self-represented and not fully aware of her rights, it was incumbent on the adjudicator to consider the implications of refusing to admit the letter and to inform the self-represented litigant of the other options available to her [ i.e. the option of requesting an adjournment in order to secure the letter writer as a witness].
Having considered the above-noted cases with respect to the issue of self-represented litigants, the judge in Watterson thereby concluded:
The trial judge’s failure to assist Mr. Watterson to overcome his obvious ignorance of the rules of evidence [emphasis mine], by advising him that his Statement of Defence was not evidence, and to ask him whether, having regard to that advice, he wished to testify or call witnesses, resulted in procedural unfairness amounting to a substantial wrong and caused a miscarriage of justice [emphasis mine].
The trend, then, of recent case law has been to ensure that judges are more proactive in instructing self-represented parties as to their procedural options, particularly when it becomes objectively apparent that such a party does not understand the applicable rules of procedure and evidence.
Much, however, remains to be done in further protecting the rights of self-represented litigants, who comprise an ever-growing proportion of parties engaged in litigation.
For instance, in their dealings with self-represented litigants, opposing lawyers can and often do take advantage of the unrepresented parties’ insecurity over, and ignorance of, court rules and procedures. Though the Canadian Judicial Council in its Statement of Principles did not explicitly refer to the hazards of sharp lawyering when dealing with an unrepresented party, it nevertheless advised that “Members of the Bar are expected to be respectful of self-represented persons and to adjust their behavior…in accordance with their professional ethical obligations.” The CJC therefore recommended that lawyers “may be guided by the Canadian Bar Association’s Code of Professional Conduct and the codes of each jurisdiction.”
However, at present, that guidance can be confusing, particularly insofar as most lawyers understand the Rules of Professional Conduct as applying only between Members of the Bar, thereby often excluding self-represented litigants from receiving the benefit of courtesies often extended to lawyers from the other side.
In many cases, opposing counsel may mislead self-represented litigants concerning the procedural options that are open to them, secure in the knowledge that unrepresented parties will often rely on the advice of any Member of the Bar, even if that member acts as opposing counsel.
In Ontario, the Rules of Professional Conduct mandate respect between counsel, urge all parties to encourage settlement where possible, and advise that counsel extend reasonably requested courtesies with respect to procedural irregularities, particularly where it is clear that such requested courtesies, if granted, would not otherwise prejudice the other party.
In the face of those Rules, lawyers still see their primary role as adversarial advocates on behalf of their clients, thereby taking full advantage of a situation in which it is clear that an unrepresented party can be “gamed” through their ignorance of basic trial procedure. This adversarial disadvantage for the self-represented party is compounded by the fact that fully represented parties usually have access to much larger legal budgets in order to keep a self-represented party mired in an endless swamp of motions, applications, and assorted procedural shenanigans, with all the attendant litigation risks and run-up on costs that flow from such conduct.
Though the Rules of Professional Conduct advise against “sharp lawyering,” many lawyers simply do not perceive these rules as applying to opposing parties who are not themselves Members of the Bar.
The Rules, therefore, need to be updated to explicitly advise lawyers on how they should conduct themselves with self-represented litigants. The knowledge that self-represented litigants are – almost by definition – under-funded can often prod opposing lawyers to engage in litigation practices that would otherwise be considered as vexatious or as an abuse of the court’s processes if conducted against a fellow Member of the Bar.
Most egregiously, judges and governing legal bodies often remain unaware of the background manipulations, tricks, and misleading advice that lawyers convey to unrepresented parties, with the effect that opposing counsel often functions as the facilitator and precipitating agent behind the mishandling of the self-represented litigant’s own case.
Much of this “sharp lawyering” against unrepresented litigants goes unreported and uncommented on, and the reason is elementary: most unrepresented parties lack the legal sophistication and knowledge to understand that opposing counsel has treated them vexatiously, in a manner that would be in clear breach of the Rules of Professional Conduct if experienced by fellow Members of the Bar.
Having no knowledge of the applicable Rules of Professional Conduct, the self-represented litigant is therefore prone to be bullied by opposing counsel, with no one around to articulate – much less to document – how a lawyer might be “gaming” the court’s processes in order to take full advantage of a self-represented party’s relative lack of legal sophistication.
In light of these considerations, both the courts and the respective governing professional associations need to go further in addressing the unique needs of self-represented litigants.
As we have seen in the above-noted cases, the courts are trending toward the requirement that judges play a more proactive role in ensuring that self-represented parties are properly informed as to their available procedural options. So, too, the governing professional bodies should take a more proactive role in overseeing – and in refereeing – the conduct of litigation as between Members of the Bar and self-represented parties.
Where a litigant conducts their file without the benefit of a full retainer lawyer, courts should provide information packages, from the outset of litigation. to the self-represented party, directing them to the Rules of Professional Conduct that apply in their dealings with opposing counsel, and advising them to document any conduct that falls afoul of such rules.
Where a litigant thereby understands the applicable Rules of Professional Conduct, and is instructed to recognize and document instances of unprofessional or vexatious conduct by opposing counsel, there should be clear cost consequences in court against the party shown to be engaging in such conduct, in addition to any reprimands or other disciplinary actions that might be instituted by the governing professional body.
In sum, in order to truly address the fundamental disadvantages experienced by self-represented litigants, the courts and the respective governing professional bodies need to go well beyond the current recommendations of the Canadian Judicial Council.
The courts need guidance as to the kind of litigation conduct that would be considered as a vexatious abuse of the court’s processes, establishing clear cost consequences against the party shown to be taking unreasonable advantage of a self-represented litigant. Until such time as there arises a consistent body of case law addressing the issue of costs in response to sharp lawyering conducted against a self-represented litigant, an increasing number of self-represented parties in our legal system will remain vulnerable to procedural abuse and an overall miscarriage of justice.
James Cooper, a Toronto lawyer, provides unbundled legal services and flexible retainer arrangements for self-represented litigants (in both civil litigation and family law cases) and for sophisticated clients concerned with managing their legal fees.
Mr. Cooper has presented Law Society accredited lectures to the legal profession on the subject of Legal Research and Practice Management.
Recognizing that litigation results – and the prospects for settlement – often hinge on the presentation of persuasive legal arguments in line with the relevant case law, Mr. Cooper employs an effective mix of case law research and evidence consultation in order to ensure that clients on a tight budget understand all the costs and benefits of proceeding with, or defending against, a legal action.
Mr. Cooper offers fixed fee quotes for task-by-task legal services to members of the public and to lawyers and law firms throughout the Greater Toronto Area (including Markham, Thornhill, Etobicoke, and Richmond Hill) and throughout the Province of Ontario.
He may be reached at (905) 737-9994 or may be emailed at jcooper at SelfRepLawyer.ca and his website is www.selfreplawyer.ca