Self-Represented Litigants Before and After the Pandemic

  • October 03, 2021
  • Cameron Fiske, C.C.

The practice of law is frequently challenging—even at the best of times. So too is the administration of justice, at all levels of the court system. While there have been significant, helpful justice system reforms instituted since the lockdowns in response to Covid-19 began on Tuesday March 17, 2020, we must not forget the importance of in-person hearings. This is particularly the case when it comes to self-represented litigants (“SRLs”). There really is no substitute for one-on-one in-person dialogue between SRLs and pro bono or Amicus lawyers. Through my representation of two former SRLs before both the Court of Appeal for Ontario and the Supreme Court of Canada—as well as having acted on behalf of many other self -represented persons as a volunteer for Pro Bono Ontario—I have learned just how important in-person communication and hearings can be. With that said, virtual hearings have also shown us that, in certain cases, there are more efficient alternatives to in-person hearings.

While the author is a strong advocate for a hybrid in-person and virtual model post-pandemic, it is important to point out that, prior to the pandemic, our court system was in need of significant technological updates. For example, the courts were overly reliant on hardcopies, rather than electronic filings, of materials. Service by facsimile had become an anachronism. Wait times and travel times prior to hearings could waste entire days and were expensive. Further, there are obvious benefits to working from home. By avoiding lengthy and frustrating commutes to work, many lawyers and court staff have been able to enjoy the benefits of having more time to spend with their families, as well as satisfying their needs for self-care and cultivating their psychological well-being.

Prior to delving into the subject of SRLs, the author would suggest that, in the post-pandemic world, all appeals before the Supreme Court of Canada and provincial/federal appeal courts should presumptively be in-person. All interlocutory motions before provincial/federal appeal courts should presumptively be remote (where the matter is not being decided in writing)—except in the case of SRLs wherein any oral hearing should be in-person. At the Superior Court level, any trial should presumptively be in-person, as well as any motion that could be dispositive of an action on a final basis. Any interlocutory motion should presumptively be remote, unless an SRL is involved—in which case, it should presumptively be in-person. All Assignment Court hearings or criminal court set dates should presumptively be remote, except where there are SRLs, in which case they should presumptively be heard in-person. Much of the author’s support for in-person hearings for cases involving SRLs relates to the rise of pro bono services in such jurisdictions as Ontario and Québec. In-person duty counsel programmes at the Ontario Superior Court of Justice and Court of Appeal for Ontario are of invaluable assistance to both the court and SLRs themselves. These programs are very difficult if not impossible to replicate on virtual platforms because there is so much value to being present in the courthouse to speak to many litigants in a short period of time and shuttle between them and opposing counsel in an effort to narrow issues and even resolve cases.

With respect to SRLs, such cases are increasingly common—as too many Canadians are simply incapable of bearing the financial burden involved in retaining a lawyer to represent them. Consequently, the courts are increasingly confronted with the unique challenges that SRLs pose. There are several basic principles associated with SRLs that we must keep in mind, and I would submit that upholding said principles is most effectively and efficiently accomplished in-person.

In Pintea v. Johns,[1] the Supreme Court of Canada fully endorsed the Statement of Principles on Self-Represented Litigants and Accused Persons (“Statement”) established by the Canadian Judicial Council. Some of the key highlights of the Statement include:

  • that judges and court administrators should do whatever possible to provide a fair and impartial process, and prevent an unfair disadvantage to self-represented persons;
  • that, depending on the circumstances and nature of the case, the presiding judge may explain the process, provide information about the law and evidentiary requirements, modify the traditional order of taking evidence, and question witnesses (typically to assist the self-represented party);
  • that judges, court administrators, and others facilitate, to the extent possible, access to justice for self-represented persons; and
  • that providing the required services for self-represented persons is also necessary to enhance the courts’ ability to function in a timely and efficient manner.[2]

In Mazraani v. Industrial Alliance and Financial Services Inc.[3] the Supreme Court of Canada further indicated that having a judge initiate case management is one way to deal with the increasing numbers of SRLs in our justice system.[4] Further, where there are SRLs, judges may take on a more active role with respect to the questioning of witnesses at trial.[5]

With these principles in mind, I turn to the pre-pandemic world. Prior to Tuesday March 17, 2020, Pro Bono Ontario—an organization for which I have served as a volunteer since 2012—had an in-person duty counsel programme for both the Divisional Court and the Court of Appeal for Ontario. In addition, it had an in-person duty counsel programme at Civil Practice Court, as well as an in-person centre on the ground floor at 393 University Avenue for self-represented litigants, in order to allow them to ask questions about upcoming cases. Many lawyers generously volunteered their time.

It goes without saying that just as judges are required to assist self-represented litigants in court, lawyers have also been charged with the responsibility of taking on that challenge. It is the author’s view that some of the creativity of arguments that duty counsel demonstrated in their arguments before the courts in the pre-pandemic era was facilitated in an in-person format via inter-personal connection. As an example, I remain convinced that the assistance I was able to provide to both the Court of Appeal for Ontario and to the SLR, Mr. KH, in the case of R c. H., 2015 ONCA 76 would likely not have happened had the matter proceeded virtually. In order to explain further, a bit of background is required. I note that Mr. KH has provided his explicit authorization and consent for me to tell this story. While the decisions involving Mr. KH are publicly reported, I use his initials over his full name.

I first met Mr. KH at the Court of Appeal for Ontario on Wednesday, December 10, 2014. I was the assigned Amicus Duty Counsel for Pro Bono Ontario, whose task it was to assist self-represented persons with their civil or provincial regulatory matters. As is set out in the subsequent endorsement, Mr. KH is a francophone.[6]

In reviewing the materials a few moments prior to the commencement of the initial hearing, I was immediately struck by the fact that Mr. KH had a legitimate chance to win leave to appeal, which is rare in provincial offences matters.  I will admit that, beyond the facts themselves, my impressions of Mr. KH’s chances owed, at least in part, to his status as a minority Francophone in Ontario—as that resonated with my own former status as a minority Anglophone residing in Québec.  I suddenly flashed back to my experiences of working in my second language in both Montréal and Québec City. Mr. KH had been charged with offences under the Compulsory Automobile Insurance Act,[7] and his trial had been conducted in English in St. Catharines. A paralegal had plead Mr. KH guilty, in his absence. Upon learning of the conviction, Mr. KH appealed to the Ontario Court of Justice, with the assistance of an interpreter, on the basis that the paralegal had not followed his instructions.[8] The appeal was dismissed after it went forward in English with Mr. KH giving his submissions in French through an interpreter. Mr. KH then applied for leave to appeal to the Court of Appeal for Ontario.[9] Most importantly, his initial application for leave to appeal did not mention language rights. As such, the matter was adjourned.

It was not until January 7, 2015, that the leave to appeal hearing proceeded before Madam Justice van Rensburg of the Court of Appeal. Assisting Mr. KH as Amicus, I advanced the position that the applicant should have been granted a bilingual appeal (with a French speaking prosecutor and presiding judge) in St. Catharines rather than for the appeal to have proceeded in English but with an interpreter. As with section 530 of the Criminal Code[10]—whereby judges are required, on a first appearance, to advise an accused person in criminal matters of their right to French language proceedings (or English in Québec)—the provincial offences appeal judge should have informed Mr. KH that he had the right to a fully bilingual appeal. As this had not happened, a miscarriage of justice had occurred.[11] To be clear, the word “bilingual,” which is the term used in the Ontario regulations, more or less means a French hearing.[12]

On February 3, 2015, in a decision rendered in French, Madam Justice van Rensburg granted Mr. KH’s application for leave to appeal on the question of whether or not a Francophone appellant has the right to a bilingual appeal after not requesting a bilingual trial.[13] I was appointed Amicus for the panel appeal. A new trial was ultimately ordered on consent and on unrelated grounds—involving ineffective assistance of the paralegal at trial.[14] I stuck with the case after the new trial was ordered, and the charges were subsequently withdrawn, in December 2017, in the Ontario Court of Justice in Welland, Ontario.  

I am convinced that the entire argument I formulated at the leave to appeal hearing, involving language rights, was contingent upon my in-person meeting with Mr. KH and being physically present at the Court of Appeal for Ontario. It may never have happened in the virtual world when one factors in how little time Amicus has to get up to speed before a hearing. Quite simply, meeting face-to-face provides one with a more comprehensive and nuanced understanding of and insight into an SRL and their case. One can read people, as well as their intentions and true feelings, in ways that simply are not possible online. Meeting in-person allows one to draw on tacit sources of information that one may not be able to articulate, but nevertheless impacts one’s assessment of the SRL and the case at hand. Further, being physically present in the courthouse provides one with a sense of both connection to the legal process and the history of the law that mobilizes one’s attention and sharpens one’s focus. It also increases memory recall through the shared human experience. In other words, it is easier to relate to someone in-person rather than over Zoom. That feeling of having a greater sense of connection to something greater than oneself assists both the self-represented litigant, the Amicus counsel, and even the Court when fulfilling one’s overall role in helping the SRL navigate the process. As there is no substitute for this procedure, it should, and it must return in some form or another.

CONCLUDING REMARKS

 In sum, I have offered these insights and observations, based on my years of experience while assisting SRLs in the pre-pandemic world and with the insight of having conducted several Zoom hearings on behalf of clients. Ultimately, others may not share my views and may seek to remain in a virtual post-pandemic world. However, with the greatest of respect to any contrary view, it is the author’s opinion that in many instances, as with SRLs, virtual hearings are an inferior substitute for the real thing.

ABOUT THE AUTHOR

Cameron Fiske is a partner at Milosevic Fiske LLP in Toronto, Ontario, and a graduate of McGill Law School’s Transsystemic Programme. He is a commercial litigator and class actions lawyer who was called to the Bar of the Law Society of Ontario (LSO) on January 28, 2009. Cameron is also recognized by the LSO as a Certified Specialist in Civil Litigation.

 

[1] Pintea v. Johns, [2017] 1 S.C.R. 470, at para. 4.

[2] Canadian Judicial Council, “Statement of Principles on Self-Represented Litigants and Accused Persons” (2006), pp. 1-2 and Pintea v. Johns, [2017] 1 S.C.R. 470, at para. 4.

[3] [2018] 3 S.C.R. 261.

[4] Mazraani v. Industrial Alliance and Financial Services Inc., [2018] 3 S.C.R. 261 at para. 39.

[5] Canadian Judicial Council, “Statement of Principles on Self-Represented Litigants and Accused Persons” (2006) pp. 1-2 https://cjc-ccm.ca/sites/default/files/documents/2020/Final-Statement-of-Principles-SRL.pdf and Pintea v. Johns, [2017] 1 S.C.R. 470, at para. 4.

[6] R c. H., 2015 ONCA 76 at para. 8.

[7] R.S.O. 1990, c. C.25.

[8] R c. H., 2015 ONCA 76 at para. 4.

[9] R c. H., 2015 ONCA 76.

[10] R.S.C., 1985, c. C-46.

[11] R c. H., 2015 ONCA 76.

[12] Bilingual Proceedings, O Reg 53/01 to the Courts of Justice Act, R.S.O. 1990, c. C.43.

[13] Ibid.

[14] R c. H., 2016 ONCA 102.

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