David v Goliath: The Court of Appeal on Litigation with Self-Represented Parties

  • June 10, 2020
  • Sheila Morris, Minden Gross LLP

Litigating against self-represented parties presents unique challenges; chief among them is our obligation to balance the need to advocate with zeal on behalf of our clients with ensuring that we treat our self-represented opponents fairly. As demonstrated in a recent decision from the Court of Appeal for Ontario, there can be dire consequences when we fail to treat self-represented parties with fairness and respect.

Writing for a unanimous bench, Mister Justice Peter Lauwers ordered a new trial after finding that both counsel and the trial judge failed to ensure that the trial, prosecuted by a self-represented litigant, was conducted in a fair manner. His Honour found several instances of unfairness related to both the mechanics of trial and evidentiary issues. He also made explicit pronouncements regarding the obligations of the bench and bar toward self-represented litigants.

This article considers two of the four areas of unfairness referred to in His Honour’s decision: the joint trial brief and the treatment of expert evidence. This article will also review the court’s discussion of the role of the trial judge and counsel in relation to a self-represented litigant.