Supreme Court of Canada Endorses A New Approach to Self-Represented Litigants

The steady rise in the number of self-represented litigants, individuals who are not represented by lawyers, presents challenges in the Canadian justice system.  Generally, the justice system relies on lawyers to function efficiently.  Individuals without lawyers often find it difficult to understand the customs and rules of court. However, the Supreme Court of Canada’s recent endorsement of the Canadian Judicial Council’s Statement of Principles on Self-represented Litigants and Accused Persons (“Statement of Principles”) in the recent case of Pintea v. Johns sets a national standard of how the justice system deals with self-represented litigants.

The Context: The Rise of Self-Representation

The Supreme Court of Canada’s endorsement of the Statement of Principles provides clear direction to lower courts that, in some cases, a strict application of court procedural rules against a self-represented litigant may lead to an injustice. Research by the University of Windsor’s Professor Julie Macfarlane in a 2013 report for the Law Society of Upper Canada suggests that, in some courts, at least 40% of litigants in family cases and more than 70% of litigants in civil cases are self-represented.  The prevalence of self-represented litigants is unlikely to change as the costs for hiring a lawyer often amount to hundreds of dollars per hour and are unaffordable for many Canadians.

Many self-represented litigants are unaware of the nuances of court processes and struggle to navigate the judicial system, leading many lawyers and legal commentators to ask how and whether courts operate efficiently and fairly in cases involving a self-represented litigant.  Sometimes courts have expressed frustration as the Alberta Court of Appeal did in 2001 by saying of self-represented litigants:  “[u]nrepresented litigants are entitled to justice, but they are not entitled to command disproportionate amounts of court resources to remedy their inability or unwillingness to retain counsel. If they seek free lunch, they should not complain of the size of the helpings” (Broda v Broda, 2001 ABCA 151 para 4).

However, Courts must, and are beginning to, adapt and develop tools to ensure that self-represented litigants have the help they need to present their cases and are treated fairly.  The Supreme Court of Canada’s decision in Pintea v. Johns signals such a change in approach.

Pintea v. Johns

Valentin Pintea was injured in a motor vehicle accident that was not his fault.  With the help of counsel, he commenced a proceeding to recover damages to compensate him for his losses and injuries.  As the case progressed, he ended up as a self-represented litigant.  Without a lawyer, Mr. Pintea struggled to manage the demands of the court process.  Though he is well educated, Mr. Pintea is disabled and English is his second language.  These obstacles impeded his ability to effectively represent himself.

The Newfoundland and Labrador Court of Appeal similarly noted that the Statement of Principles require courts take “affirmative and non-prejudicial steps” to promote equal justice.. In particular, Mr. Pintea did not inform the court or the defendants of a change in his address. As a result he did not receive notices that he was required to attend case management meetings, which are court hearings held prior to trial where a judge makes decisions that facilitate the efficient completion of pre-trial litigation steps. After he missed some case management meetings, a Queen’s Bench Judge found Mr. Pintea in contempt of court, struck his claim, and awarded the defendants over $80,000 in costs.

The majority decision and dissenting opinion at the Court of Appeal reflect different approaches to the treatment of self-represented litigants.

The majority upheld the Queen’s Bench decision, finding “[t]he fact that the appellant is a self-represented litigant in this appeal does not excuse his failure to comply with the Rules of Court in respect of notifying both the court and opposing counsel of a change of his address for service” (Pintea v Johns, 2016 ABCA 99 para 20).

In contrast, as the dissenting judge put it, “… the consequences of dismissing this appeal are excessively punitive. We now know that the appellant’s failure to attend the case management meetings was not an act of contempt; he was simply not aware of them. The appellant is a self-represented litigant, who we understand had no fault in the motor vehicle accident and who could reasonably have expected a significant award of damages for the injuries he suffered. Now instead, this disabled, unemployed man is saddled with a cost award of almost $83,000. In my respectful opinion, that is a significantly disproportionate consequence for failing to file a change of address with the court” (Pintea v Johns, 2016 ABCA 99 para 34).

The case proceeded to the Supreme Court of Canada, which issued a five-paragraph decision shortly after hearing oral argument. The Supreme Court found that Mr. Pintea could not be held in contempt, restored Mr. Pintea’s action, removed the costs award against Mr. Pintea and endorsed the Statement of Principles.

Statement of Principles

 The Statement of Principles states:

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.

Prior to the Supreme Court of Canada’s endorsement, the Statement of Principles were not always referred to or applied by Canadian courts.

Will the Supreme Court of Canada’s endorsement of the Statement of Principles lead to a more flexible application of procedural rules to self-represented litigants? The early results suggest that it will.

Accordingly, the Supreme Court of Canada’s endorsement has the potential to mark an important step in addressing the challenges faced by self-represented litigants seeking justice. Will Canadian courts institute programs and processes to assist self-represented litigants?  Will Canadian courts be more flexible and understanding with self-represented litigants? In some instances, this will require the courts to treat self-represented litigants differently. This begs the question of whether court procedural rules should be applied as strictly to self-represented litigants as they are to parties with the benefit of legal counsel.

Traditionally, Canadian courts have not answered this question uniformly.  Some courts found that a strict application of court procedural rules should not be used to deny self-represented litigants the chance to present their case (e.g., Coleman v Pateman Farms Ltd., 2001 MBCA 75 para 14; Cole v. British Columbia Nurses’ Union, 2014 BCCA 236 para 36). Others, such as the Court of Appeal majority in Pintea, applied procedural rules strictly against self-represented litigants.

Endorsement’s Impact

Will the Supreme Court of Canada’s endorsement of the Statement of Principles lead to a more flexible application of procedural rules to self-represented litigants? The early results suggest that it will.

The prevalence of self-represented litigants is unlikely to change as the costs for hiring a lawyer often amount to hundreds of dollars per hour and are unaffordable for many Canadians.

In one recent Alberta Queen’s Bench decision, the justice interpreted the Supreme Court of Canada’s endorsement of the Statement of Principles as “a substantial rejection … of the traditional approach, that rules of procedure and evidence apply the same to everyone who appears before a Canadian court” (1985 Sawridge Trust v Alberta (Public Trustee), 2017 ABQB 530 paras 45-46).

The Newfoundland and Labrador Court of Appeal similarly noted that the Statement of Principles require courts take “affirmative and non-prejudicial steps” to promote equal justice (Young v Noble, 2017 NLCA 48 para 34).

In Ontario, the Superior Court and Court of Appeal have recently noted and relied on the Supreme Court of Canada’s endorsement in the family and criminal justice systems, respectively, to order new trials for self-represented litigants (Gray v Gray, 2017 ONSC 5028 paras 31-33; R v Tossounian, 2017 ONCA 618 paras 37-39).

The Supreme Court of Canada’s endorsement of the Statement of Principles provides clear direction to lower courts that, in some cases, a strict application of court procedural rules against a self-represented litigant may lead to an injustice. However, the Statement of Principles on its own is no more than a flexible framework to promote access to justice and fair treatment of all litigants. It is in the application of that framework by all actors in Canada’s justice system—judges, court officers, lawyers and self-represented litigants —that true procedural justice will be achieved.

The authors, Sean Sutherland and Cassie Richards, were members of the team that represented Mr. Pintea at the Supreme Court of Canada.

Authors:

Sean Sutherland

Sean Sutherland is a litigation associate at Osler, Hoskin & Harcourt LLP in Calgary, AB.

 

Cassie Richards

Cassie Richards is an articling student at Osler, Hoskin & Harcourt LLP in Calgary, AB.

 


A Publication of CPLEA