Judicial Responses to Self-Represented Litigants

Judicial Responses to Self-Represented Litigants

in the Courts of British Columbia

Shawn Courtney

University of Victoria,Faculty of Law

Access to Justice Center for Excellence

April 2016

Executive Summary

This paper considers how Canadian courts, particularly those in British Columbia, have responded to the increased proportion of self-represented litigants ("SRLs") in civil and family cases. The paper does not specifically address criminal law proceedings.

Self-represented litigants face an uneven playing field when it comes to court proceedings. The court's duty to ensure a fair trial in these circumstances has two broad and interrelated components: the proper judicial role and the flexible application of court procedures.

The first component concerns the assistance which a judge may give an SRL while still respecting the limits of the judicial role. This includes the duty to remain impartial in both appearance and fact. Trial fairness is the standard for assessing the scope of permissible judicial assistance.

Fairness means an SRL must have a fair opportunity to present their case to the best of their ability. Fairness also means that a judge should attempt to accommodate an SRL's unfamiliarity with court procedures so the SRL can present their case. However, in doing so the trial judge cannot trench on the rights of other parties.

Courts have articulated severalspecific prohibitions on judicial conduct in relation to SRLs. A judge cannot become an advocate, provide legal advice, interfere excessively with the trial, usurp the role of counsel, advance new arguments for the SRL, or act in any other way that impairs the rights of any other party.

However, judges must ensure that the trial runs efficiently and fairly. Accordingly, judges may offer guidance to an SRL on matters including court procedures, presenting evidence and examination of witnesses. Judges may also intervene more directly on such matters, by asking questions of witnesses, for example.

An interventionist approach is more common in Provincial Court proceedings. This is a consequence ofthe historically high proportion of SRLs in that court. However, trial fairness and judicial impartiality remain as essential in the Provincial Court as they are in the Supreme Court.

The second component of trial fairness involves the application of court rules. While court rules apply equally to SRLs, courts are ableto provide some accommodation. In general, the court will consider two factors:one, whether it would be unfair to demand from an SRL the same level of compliance expected from a lawyer; andtwo, whether accommodating an SRL would impinge uponanother party's rights.

Courts have also articulated a number of expectations of SRLs in terms of their compliance with court rules. Broadly speaking, SRLs must act honestly and with courtesy, adhere to judicial instructions, and become familiar with the law and proceduresrelevant to their case.

The extent to which courts will accommodate SRLs on procedural matters depends partly on the context. The court will take a firmer stance on appeals. Courts are willing to show more flexibility when it comes to SRLs' pleadings and their presentation of evidence.

SRLs may receive special costs but, moreoften,the court assesses special costs against them.

Introduction

Self-represented litigants ("SRLs") are appearing in Canadian court rooms in ever-increasing numbers.[1] SRLs both evince and contribute to the growing access to justice problem, as they tend to slow the court process, increase costs for parties represented by counsel, and contribute to judicial stress and burnout.[2]

This paper reviews how Canadian courts, particularly those in British Columbia, have responded to the presence of SRLs in civil and family cases. This paper does not address the criminal law context, though the case law in that area also deserves attention.[3]

This paper seeks to respond toa gap in the existing literature by identifying themes in the judicial response to SRLs. Others have studied the experiences of SRLs as they navigate the court process,[4] provided advice to counsel[5] and judges[6] on engaging with SRLs, and surveyed lawyers and/or judges regarding their experiences with SRLs.[7]

This paper begins by reviewing how Canadian courts envision their proper judicial role in relation to SRLs. Itoutlines some specific duties, prohibitions and permissible actions that emerge from the case law.It discusses the relatively interventionist judicial approach which exists in the Provincial Court, as well as judicial expectations of SRLs in terms of procedural compliance – including the extent to which courts may grant SRLs leeway onprocedural matters. Specific topics considered include pleadings, evidence,appeals, and costs awards. Finally, because it may indicate where we are headed on this issue, the paper briefly looksat how the courts in California have responded to the growing number of SRLs in that jurisdiction.

SRLs have compelled judges to grapple with the practical aspects of ensuring a fair trial when the adversaries are manifestly not on an even playingfield. Broadly speaking, the judiciary has elucidatedits proper role in relation to an SRL as an assistant but not an advocate or legal advisor. The judiciary is generally willing to grant some accommodations to SRLs, particularly on procedural and evidentiary matters, but not to the extent of impairing another party's rights.

The Basic Framework on the Proper Judicial Role toward SRLs

The Supreme Court of Canada ("SCC") has provided little explicit guidance on how lower courts should respond to SRLs in the civil or family contexts. The SCC in British Columbia (Attorney General) v Christie denied any "general constitutional right to counsel in proceedings before courts and tribunals dealing with rights and obligations."[8] A corollary is that SRLs are not inherently problematic from a constitutional standpoint.

The SCC noted, without elaborating, in New Brunswick (Minister of Health and Community Services) v G (J) that a "trial judge is under a duty to ensure a fair hearing, and has the ability to assist [an SRL] in the proceedings, within the limits of his or her judicial role."[9]

The SCC has also articulated certain concepts especially relevant to judicial engagement with SRLs, such as the reasonable apprehension of bias in R v S (RD).[10] Accordingly, the trial judge must remain impartial in both appearance and fact when faced with an SRL.[11]

Within this basic framework Canadian courts have articulated the essential problem they face with SRLs, along with more specific duties, prohibitions and permissible actionsin relation to such litigants. The lack of detailed direction from the SCC means that most courts have looked to their counterparts in other provinces for guidance. Superior courts have also drawn from criminal cases to flesh out their responses in the civil and family contexts.[12]

The Judiciary's Duties toward SRLs

The British Columbia Supreme Court ("BCSC") in Rhodes v All Pro Building Maintenance Ltd noted the "dilemma" courts face with SRLs: should they "be granted expanded latitude and liberties in the conduct of their case? Is the Court delivering fairness if it makes those extraordinary accommodations? What about the other litigants whose legal and procedural rights appear to be diminished when those accommodations are made?"[13]

The Ontario Court of Justice also addressed this issue in Baziuk v Dunwoody, in comments which the BCSC has often quoted:

The problem of unrepresented parties, who may not be familiar with law and procedure, is one which is facing courts today with an ever increasing frequency. Courts are mindful of a degree of understanding and appreciation which should appropriately be extended to such parties. However, notwithstanding the difficulty with such parties attempting to properly represent themselves, courts must also balance the issues of fairness and be mindful of both, or all parties. Issues of fairness of course must always be determined in accordance with accepted legal principles and the law which has developed. A sense of fairness and understanding granted to unrepresented parties ought never to extend to the degree where courts do not give effect to the existing law, or where the issue of fairness to an unrepresented litigant is permitted to over ride the rights of a defendant party.[14]

Trial fairness is a consistent theme in the case law. The British Columbia Court of Appeal ("BCCA") in Burnaby (City) v Oh adopted a frequently-cited statement by the Ontario Court of Appeal ("ONCA") in Davids v Davids:

Fairness does not demand that the unrepresented litigant be able to present his case as effectively as a competent lawyer. Rather, it demands that he have a fair opportunity to present his case to the best of his ability. Nor does fairness dictate that the unrepresented litigant have a lawyer’s familiarity with procedures and forensic tactics. It does require that the trial judge treat the litigant fairly and attempt to accommodate unrepresented litigants’ unfamiliarity with the process so as to permit them to present their case. In doing so, the trial judge must, of course, respect the rights of the other party.[15]

This accords with the SCC's caution in G(J) that in the child-welfare context an SRL who "chooses not to have a lawyer, whether or not she is able to afford one ... voluntarily assumes the risk of ineffective representation."[16]

Appellate courts across Canada, including the BCCA in Burnaby v Oh, have repeatedly cited the Manitoba Court of Appeal's ("MBCA") statement in Director of Child and Family Services (Man) v JA that the trial judge must "ensure that a party's lack of legal training does not unduly prejudice his or her ability to participate meaningfully in the proceeding."[17]

Such statements suggest that the courts are not necessarily equating meaningful participation with effective representation. An SRL has the right to the former but not to the latter. At some point ineffective representation undermines an SRL's ability to participate meaningfully, and the courts must navigate the blurry dividing line between the two concepts.

Finally, the BCCA noted in Crepnjak v Crepnjak that "trial judges often face the difficult task of having to adjudicate important issues based on inadequate materials provided by self-represented litigants. That difficulty is often exacerbated by inadequate submissions on the legal issues in the dispute." Despite this, trial judges must still "provide adequate reasons to support their findings in order to permit meaningful appellate review."[18]

Prohibited Judicial Conduct

Several prohibitions on judicial conduct also exist. The trial judge cannot:

• become an advocate for the SRL;[19]
• provide legal advice to the SRL;[20]
• interfere excessively with the trial proceedings;[21]
• project himself or herself into the arena;[22]
• usurp the role of counsel;[23]
• devise and advance new arguments on behalf of the SRL;[24] or
• act in a way that impairs the rights of any other party to the proceeding.[25]

The BCCA in MacMillan Bloedel Ltd v Simpson also cautioned judges to "be very careful when they embark upon the cross-examination of a witness without being properly briefed."[26]

PermissibleJudicial Conduct

Courts have also suggested actions that judges may take in their discretion. The Nova Scotia Court of Appeal ("NSCA") affirmed in Murphy v Wulkowicz that "the trial must be run as efficiently and fairly as possible. This may require the judge to offer guidance to a self-represented party."[27]

More specifically, the BCCA suggested in Wolowidnyk v Wolowidnyk that

the scope of a trial judge’s responsibility to manage and control the proceedings [includes] ensuring the reception of only properly admissible evidence, fulfilling [the] duty to assist unrepresented litigants, intervening to sort out or clarify confused or inept questioning, ensuring the evidence elicited properly addresses only relevant issues, and, in the interests of judicial economy, limiting the answers given by prolix witnesses.[28]

The ONCA has suggested that judges may question witnesses to elicit evidence not led by the parties.[29] However, many BCSC judges in civil and family cases involving at least one SRL hesitate to question witnesses. Major reasons for this reluctance include a desire to not appear partial, to not give legal advice, and to not undercut the adversarial process.[30]

The NSCA also opined in DMM that a trial judge may properly assist SRLs

by advising them about the process and how to present their evidence, by helping them frame non-leading questions, by suggesting lines of questioning that might be appropriate, by asking questions that [assist] them in introducing their evidence and by offering guidance in how to best present their argument.[31]

The Provincial Court: A More Interventionist Role

Compared to the BCSC, the British Columbia Provincial Court ("BCPC") operates on a different set of assumptions about litigants and the nature of appropriate judicial conduct. SRLs comprise around 90 percent of civil and family litigants in the BCPC and the judges who deal with them must "possess the qualities of patience, humility and compassion, and a keen understanding of human nature."[32]

A different model is appropriate in the small claims process because litigants are usually self-represented and "generally have little or no knowledge of the law," as the BCSC observed in Garry v Pohlmann.[33] The BCSC in that case noted further that "[g]iven the nature of small claims proceedings, appellate courts have recognized that the role of trial judges in small claims court is often, by necessity, more interventionist."[34]

The themes of an interventionist approach, fairness and judicial discretion in the conduct ofproceedings appear repeatedly in the case law. Summarizing a number of authorities on small claims practices, the BCSC in Jimenez v Azizbaigi concluded:

A trial judge may intervene to clarify witness testimony in order to understand the evidence. A trial judge may assist litigants by directing them away from irrelevancies and indicating what issues are determinative of the matter, or by asking the litigant to focus their questioning of witnesses on legally relevant factual issues. A trial judge may take control of the proceedings when a litigant argues with a witness instead of asking questions, where litigants delay proceedings by repeating the same evidence, or where litigants insist on repeatedly focusing on irrelevancies. The appropriate frequency and forcefulness of interventions will depend on the individual litigant; some will require more assistance than others. The manner in which proceedings should be conducted is left to the discretion of the trial judge.[35]

Commenting on Rule 10(1) of the Small Claims Rules,[36] the BCSC in Brown v Searle affirmed that

Particularly when the parties are unrepresented ... a trial judge must be given broad discretion in how to run the process. The overriding principle is to ensure fair process, and so long as that principle is protected, a trial judge in a dispute of this nature must be allowed to supervise the process without appellate interference on procedural grounds, unless a party has been shown to have been prejudiced as a result.[37]

The BCPC has also acknowledged a judge's "duty to identify legal issues for the parties, to invite their submissions respecting them, and to decide the case according to law." More specifically, this involves a "duty to raise legal issues which must be decided in order to adjudicate the claim which is made" but the judge cannot "assume a role as advocate or inquisitor" by "suggest[ing] different claims which might have been made."[38]

A discretionary, interventionist approach is not limited to civil matters in the BCPC but is also appropriate for the court's family law proceedings. The BCSC in OCC v AC noted in the latter context that

a judge hearing interim applications often has limited time to canvass facts, particularly when parties are unrepresented. In those circumstances, adopting an inquisitorial, issue by issue, procedure, with the judge asking most of the questions, or at least directing the areas of inquiry issue by issue, may be more workable than an adversarial process.[39]

The Federal Court of Appeal in Wagg v Canada reviewed provincial superior court authorities and suggested that

[a] trial judge who is dealing with an unrepresented litigant has the right and the obligation to ensure that the litigant understands the nature of the proceedings. This may well require the judge to intervene in the proceedings. However, the trial judge must be careful not to give the perception of having closed his or her mind to the matter before the Court.[40]

While a BCPC judge may adopt a more interventionist stance with SRLs, trial fairness remains key. One aspect of this is judicial impartiality. The concept of a reasonable apprehension of bias remains vital and the standard is the same in both the BCPC and BCSC.

A BCPC judge will undermine trial fairness by becoming an advocate for one side. For instance, while a judge may seek to clarify a witness' answers to the judge's questions they may not cross-examine witnesses or otherwise interact with witnesses in an aggressive, argumentative or adverse manner.[41]