A recent Supreme Court of Canada decision re confirmed the duty of judges and court staff to assist that many times unrepresented people fail to receive, which could and often should invalidate the court process against them.
Here are a few recent articles and the relevant court decisions and the Canadian Judicial Council report laying out the principles quite clearly. Good to know.
Ian Mulgrew: Self-represented litigants get a begrudging break
More from Ian Mulgrew Published on: May 8, 2017 |
Self-represented litigants have won a big victory at the Supreme Court of Canada, but it was like pulling teeth.
Treating people without lawyers fairly seems like motherhood-and-apple-pie and the court being asked to do the work of the angels, but you’d never have known it.
That’s because so many self-represented litigants are so difficult to deal with.
In the end, however, a unanimous high bench endorsed the Canadian Judicial Council’s 2006 statement of principles on self-represented litigants that judges “should do whatever is possible to provide a fair and impartial process and prevent an unfair disadvantage to self-represented persons.”
Importantly, this includes the advice that judges should make referrals to agencies who can provide support — but there’s no money attached.
Although this case involved a clear-cut personal injury action brought by a Calgary man, Valentin Pintea, after a 2007 Alberta car crash, it raised important issues for tens of thousands of self-represented litigants navigating the country’s often inscrutable legal system.
Still, the justices all but gritted their teeth throughout submissions about what caused an Alberta judge who seemed to show the patience of Job to finally snap.
MORE here PDF of Article Ian Mulgrew, Self-represented litigants, the courts.pdf
Court weighs in on self-represented litigants
Supporting the Unrepresented: Case Management of Self-Represented Litigants
By: Alena Storton
Case Commented on: Pintea v Johns, 2016 ABCA 99 (CanLII)
The Alberta Court of Appeal addressed the need for balance between supporting self-represented litigants and maintaining a fair trial in Malton v Attia, 2016 ABCA 130 (CanLII), while deciding an appeal regarding procedural fairness and reasonable apprehension of bias by a trial judge. The Court noted that judges have a responsibility to ensure that self-represented individuals are given fair access to and equal treatment by the court, which may include judges providing information regarding the law and evidentiary requirements. It is clear that this responsibility does not relieve self-represented litigants from the obligation to prepare their own case and familiarize themselves with court procedures (at para 31). Ultimately, the Court made the following statement about the balance between supporting self-represented litigants and maintaining a fair trial:
While a trial judge may, therefore, allow some leeway to the self-represented litigant and provide some assistance, particularly in procedural matters, he or she must not become an advocate for the litigant. Nor can a trial judge allow assistance to a self-represented litigant to override the right of a represented litigant to a fair trial (at para 34).
The Court went on to reaffirm the importance of judicial impartiality. It determined that a judge must be free from actual bias, as well as seen as being free from bias in order to avoid a reasonable apprehension of bias (at para 81).
Canadian Judicial Council Issues Statement of Principles on Self-Represented Litigants and Accused Persons
Ottawa, 12 December 2006 – The Canadian Judicial Council issued a statement of principles today on self-represented persons, to foster equal access to justice and equal treatment under the law.
Commenting on the principles, the Right Honourable Beverley McLachlin, Chief Justice of Canada and Chairperson of the Council, said “Ensuring better access to justice is a Council priority. The Council views the increasing numbers of self-represented persons who appear in the court system as a serious matter. These principles will assist key participants in the justice system to ensure that self-represented persons are provided with fair access and equal treatment in the courts”.
Publication of the Statement of Principles follows extensive work by a committee of the Council chaired by the Honourable Marc Monnin, Chief Justice of the Court of Queen’s Bench of Manitoba. He praised the contributions of all those who participated in the development of the document.
Chief Justice Monnin pointed out that “the Principles are advisory in nature and are not intended to be a code of conduct. However, judges and other participants in the justice system have a responsibility to promote opportunities for all persons to understand and meaningfully present their case, whether or not they have legal representation.”
“After a detailed examination of the issue, the Committee concluded that self-represented persons are generally uninformed about their rights and about the consequences of the options they choose,” said Chief Justice Monnin. “They may find court procedures complex, confusing and intimidating and they often do not have the knowledge or skills to participate actively and effectively in their own litigation.”
“The guidelines underscore the need for better information and tools for those who wish to represent themselves,” added Monnin. “All parties to the system have a role to play in promoting equal access to justice for everyone, as well as for the timely and efficient administration of justice.”
The Council hopes that the Statement of Principles will be a useful tool to foster better access to justice for Canadians.
The Canadian Judicial Council is composed of the chief justices and associate chief justices of Canada’s superior courts. The Council’s web site address is http://www.cjc-ccm.gc.ca
For further information:
Contact Norman Sabourin, Executive Director and General Counsel, 613-288-1566, extension 301.
The CJC Statement of Principles (Highlights)
A. To promote rights of access:
- Access to justice for those who represent themselves requires that all aspects of the court process be open, transparent, clearly defined, simple, convenient and accommodating.
- The court process should, to the extent possible, be supplemented by processes including case management, alternative dispute resolution (ADR) procedures, and informal settlement conferences presided over by a judge.
- Information, assistance and self-help support, self-represented persons should be made available through the normal means of information, including pamphlets, telephone and courthouse inquiries, legal clinics and internet searches.
- All self-represented parties should be:
- Informed of the potential consequences and responsibilities of proceeding without a lawyer;
- Referred to available sources of representation, including those available from Legal Aid, pro bono assistance and community and other services;
- Referred to other appropriate sources of information, education, advice and assistance.
B. To promote equal justice
- 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.
- Self-represented persons should not be denied relief on the basis of a minor or easily rectified deficiency in their case.
- Where appropriate, a judge should consider engaging in such case management activities as are required to protect the rights and interests of self-represented persons. Such case management should begin as early in the court process as possible.
- Depending on the circumstances and nature of the case, the presiding judge may:
- may explain the process;
- inquire whether both parties understand the process and the procedure;
- make referrals to agencies able to assist the litigant in the preparation of the case;
- provide information about the law and evidentiary requirements;
- modify the traditional order of taking evidence; and
- question witnesses.
C. Responsibilities of the participants in the justice system – both justices and court administrators
- Judges and court administrators should meet the needs of self-represented persons for information, referral, simplicity and assistance.
- Forms, rules and procedures should be developed which are understandable to and easily accessed by self-represented persons.
- To the extent possible, judges and court administrators should develop packages for self-represented persons and standardized court forms.
- Judges and court administrators have no obligation to assist a self-represented person who is disrespectful, frivolous, unreasonable, vexatious, abusive, or making no reasonable effort to prepare their own case.
For the full document please see:
Report Backup DOWNLOAD PDF – CJC-PrinciplesSelf-represented Litigants2006_en.pdf
ALL Canadian Judicial Council (CJC) PUBLICATIONS – http://www.cjc-ccm.gc.ca/english/news_en.asp?selMenu=news_pub_all_en.asp
**** CJC – Ethical Principles for Judges – http://www.cjc-ccm.gc.ca/cmslib/general/news_pub_judicialconduct_Principles_en.pdf DOWNLOAD PDF Download-pdf
CASES re Unrepresented
Pintea v. Johns
|Collection||Supreme Court Judgments|
|Neutral citation||2017 SCC 23|
Interveners National Self-Represented Litigants Project, Pro Bono Ontario and Access Pro Bono
The appeal from the judgment of the Court of Appeal of Alberta (Calgary), Number 1501-0047-AC, 2016 ABCA 99, dated May 2, 2016, was heard on April 18, 2017 and the Court on that day delivered the following judgment orally:
Karakatsanis J. — The common law of civil contempt requires that the respondents prove beyond a reasonable doubt that Mr. Pintea had actual knowledge of the Orders for the case management meetings he failed to attend.
The case management judge failed to consider whether Mr. Pintea had actual knowledge of two of the three Orders upon which she based her decision. The respondents concede that the requirements of Rule 10.52(3)(a)(iii) of the Alberta Rules of Court, Alta. Reg. 124/2010, were not met with respect to these two Orders.
As a result, the finding of contempt cannot stand.
We would add that we endorse the Statement of Principles on Self-represented Litigants and Accused Persons (2006) established by the Canadian Judicial Council.
The appeal is allowed, the action is restored and the costs award vacated.