On November 18, 2020, the Public Sector Lawyers section delivered an excellent virtual program How to Work with Self-Represented Parties in your Public Law Practice, chaired by John Park. John facilitated a discussion through questions and relevant scenarios, amongst the three speakers, the Hon. Justice Sheila Ray, Faye Kidman (Alcohol and Gaming Commission of Ontario) and Brian Osler (Ontario Motor Vehicle Industry Council).
The program addressed practical tips for handling situations with self-represented parties as well as ethical considerations from the perspective of public sector lawyers.
Faye Kidman noted that the Law Society of Ontario’s Rules of Professional Conduct address counsel’s obligations when dealing with self-represented parties. She observed that Rule 7.2-9 on Communications with Self-Represented litigants emphasizes that lawyers must ensure that such parties do not think that opposing counsel represents their interests. Counsel may explain the processes involved to self-represented litigants, but not provide legal advice. She also noted that Rule 5.1-2(i) requires counsel to put all relevant authorities before the tribunal or court. The self-represented party may not understand the significance of relevant authorities, but counsel are obliged to introduce them, even if an authority does not assist their case.
Faye noted that she explains everything she can to self-represented litigants so that there are no surprises, including that she is taking notes and that there is a student in the room taking notes. She will also describe the concepts of without prejudice and settlement privilege and the resolution process, and confirm the discussion in writing. She noted that many self-represented parties do not understand that you cannot refer to settlement discussions in hearings on the merits. She emphasizes that it means that the decision-maker cannot know about the conversation. She also suggested that it is useful to have this discussion at a case conference.
The panel looked at the differences in pre-trial or pre-hearing communications between a self-represented litigant and a litigant with counsel. Brian Osler noted that communication with a self-represented party can still lead to settlement and resolutions. The parties can still effectively narrow issues before getting to trial, even without a lawyer on the other side. He explained that almost everything he can accomplish, or needs to accomplish with a lawyer on the other side, can still be done with someone who is self-represented. Further, some of the hardships of litigation are eliminated with someone who is self-represented because they do not have to concern themselves with billing pressures, reconciling strategic preferences or putting on a show for their client. Other aspects of communication however require more caution because self-represented litigants are not bound by the Rules of Professional Conduct. Brian emphasized the importance of the tips provided by Faye.
Expanding further on Faye’s comments, Brian suggested getting an email address from a self-represented litigant so it is easier to keep a record of communications. It is important to confirm that the email address is operational. Brian noted that some people prefer to communicate by text. Brian advised against this because of complications associated with converting text messages into a coherent record for a court or tribunal. This record is important because it is not uncommon for self-represented litigants to misconstrue or mischaracterize communications, particularly in the context of parallel quasi-criminal and administrative actions, which commonly occur for public sector lawyers.
Justice Ray observed that judges might deal with self-represented parties differently depending on the nature of the proceedings. She noted that individuals may be self-represented for financial or other reasons, and that their choice must be respected. As a judge, she has to assess at the outset and, as a hearing progresses, whether a fair hearing can be provided. She will consider whether the Rowbotham criteria for obtaining funding for legal representation may apply, as well as other options such as amicus curiae (friend of the court), and adjournments. She will also explain to litigants that they can get a lawyer or maybe even some advice if they are not interested in full representation.
Justice Ray remarked that s. 45 of the Provincial Offences Act and s. 606 of the Criminal Code of Canada contain obligations to ensure that a guilty plea is voluntary and informed. She noted that the courts have confirmed that Justices and Justices of the Peace have an obligation to provide assistance to self-represented litigants, and the decisions in R. v. Rijal, 2010 ONCJ 329, and R. v. Messina, 2005 ONCJ 560, provide details about what should be explained to a self-represented litigant.
Chair John Park asked the speakers to comment on a scenario where a self-represented litigant discloses privileged information in a hearing in an attempt to persuade the decision-maker to provide the same sentence offered during pre-hearing settlement discussions.
Faye noted that in her experience the decision-maker often steps in to explain the process. She might comment to ensure that the record reflects that the information is subject to settlement privilege. She also noted that she makes sure that she justifies the sanction that she is asking for.
Justice Ray remarked that if a lighter sentence were offered before trial it would not influence the decision-maker. She observed that litigants are under pressure and the judge understands the nature of without prejudice discussions, and should be trusted to do the right thing. She noted it is not unusual for an offer of a lighter sentence to be made before trial. As a judge, she has to consider if it is a fit sentence. In the case of self-represented litigants, she explained that her default position is to just let them talk and then she makes a fair decision.
John Park then asked the speakers how they would handle a case where a self-represented litigant had received bad or wrong legal advice.
Justice Ray noted that if you are appearing before the provincial court counsel could ask to speak with the judge in chambers. If it is a very serious issue with serious consequences, the issue likely needs to be reported to the Law Society, which is the correct forum to deal with the issue of counsel’s competence.
Faye Kidman observed that even if a hearing has started it is best to pause and ask for a case conference. Brian Osler added that in the case of parallel criminal and regulatory proceedings, the legal advice can be given without proper context or familiarity with the landscape of regulatory proceedings. With a case conference, you can let the tribunal member presiding over the case conference know of your concerns and ask them to provide direction to the (now) self-represented litigant. If the bad or negligent legal advice is serious enough, this may be something that the litigant may need to address with the assistance of counsel. The tribunal member can impress upon them the need to get legal counsel to advise on unwinding the concerns.
John Park posed another scenario where a self-represented litigant contacts counsel a month before a hearing and says on reflection they accept full responsibility and just do not want to lose their licence.
Faye Kidman remarked that self-represented litigants often approach her close to the hearing to discuss resolution. She said that it is important to clarify that you are not the decision-maker and are representing your own client. If possible, the hearing might be converted into a case conference. She might also advise the tribunal that resolution discussions have begun and that the parties need time to pursue them. However, if the process has reached the point where the regulator will be seeking licence revocation, the situation may be beyond resolution discussions. In that case, she would get instructions from her client about what it is looking for and suggest that the party get legal advice.
John Park asked the speakers about whether advocacy style should change with self-represented parties. Justice Ray said she is always grateful when prosecutors assist by explaining the process with self-represented litigants. Her advice to counsel dealing with self-represented parties is to count to 10 before objecting and recognize that self-represented parties lack knowledge about procedure and how to present a case. She also cautioned against objecting on technical grounds to adjournments for the purpose of a self-represented litigant obtaining disclosure.
Finally, John Park asked the speakers whether there was a particular profile of a self-represented litigant. The speakers agreed that self-represented litigants encompass all different types, with the common theme being financial, recognizing that some people are self-represented by choice and not only because of financial necessity.
About the authors
Brian Osler is the Director of Legal Services for the Ontario Motor Vehicle Industry Council.
Laura Pettigrew is General Counsel for the Ombudsman of Ontario.
This article represents the views of the authors and not necessarily those of the organizations they work for.
Any article or other information or content expressed or made available in this Section is that of the respective author(s) and not of the OBA.