Successful appeal for a self-represented litigant: Sanzone v Schecter

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Sanzone v Schecter 2016 ONCA 566 (CanLII), http://canlii.ca/t/gsgjq

Self-represented litigants notice that while lawyers often criticize them for being ignorant of the rules, many lawyers in fact do not abide by the Rules of Civil Procedure themselves.  In Sanzone v Schecter, such appears to be the case. It may be of some comfort to self-represented litigants that this sort of double standard was noted to be unacceptable by the Court of Appeal.

This was a case of dental malpractice.  The self-represented plaintiff filed a claim against the defendant dentists in 2011.  The defendants brought a motion for summary judgement (or a “Rule 20 motion”) against her, on the grounds that she has failed to provide any proper expert report in support of her claim. At the motion for summary judgment, the plaintiff had filed a letter from a third party dentist, which noted that the defendant dentists did not meet the standard of care. The motion judge held that such a letter was inadmissible, as it did not comply with the rules pertaining to expert reports. As a result, the judge dismissed the plaintiff’s action.

Fortunately for the plaintiff, she did not give up. She filed an appeal (represented by counsel) and successfully managed to have the dismissal overturned. What is instructive for us, is that the Court of Appeal noted that if a represented party wishes to rely on the Rules of Civil procedure against a self-represented person, the represented party must ensure that they themselves abide by the Rules. Furthermore, they must “not use the rules to take unfair advantage of the self-represented litigant.” para. 23.

The Court of Appeal was fair in balancing the rights of self-represented litigants with those of represented parties.  Writing for the court, Justice Brown noted that “fairness requires a judge to accommodate a self-represented party’s unfamiliarity with the litigation process to enable her to present her case to the best of her ability: Davids v. Davids (1999), 1999 CanLII 9289 (ON CA), 125 O.A.C. 375 (C.A.), at para. 36.”  However,  “any accommodation made by a judge to a self-represented party must respect the rights of the other party: Davids, at para. 36. A defendant is entitled to expect that a claim of liability brought against it will be decided by the same rules of evidence and substantive law whether the plaintiff is represented by counsel or self-represented.”[paras. 21-22].

 Justice Brown found that the represented party did not proceed fairly. In their motion for summary judgement, the defendants should have followed the rules governing such motions by providing their own best evidence on the merits. They were required to put their “best evidentiary foot forward.” [para. 24] They did not do so. Moreover, they could have requested a case conference to compel the plaintiff to produce expert evidence instead of seeking to dismiss the action through a summary judgement motion. Justice Brown wrote, at paragraph 36, “By resorting to rule 20 to compel the self-represented appellant to deliver an expert report, without meeting their own evidentiary obligations as moving parties under the rule, the defendants used the rules in a procedurally inappropriate manner.”

This case sends the clear message that rules apply, not only to self-represented parties, but to all parties.

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The true purpose of the law

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I am writing this in response to Prof. Noel Semple tweet “Law has many purposes but creating jobs for lawyers is not among them”.  This was followed by Robert Harvie’s response,”or Law Professors for that matter : ) “.  I found myself stopping to reflect on this exchange.  While I am in agreement with Prof. Semple and Mr.Harvie, my perceptions about the legal profession has changed significantly since becoming a lawyer.

Before becoming a litigant, I thought the justice system’s primary goal was to serve the public.  After having been in a lawsuit, like most litigants, I was somewhat frustrated by the system. I admit that I developed a highly cynical view of both the system and the legal profession. I can see why the legal profession appears elitist to a lay litigant, and why it appears that the legal process is purposely developed to confuse the lay person. I thought that all lawyers care about is their bottom line.  Indeed, they mostly do appear to only see the law as a means to their own career aspirations.

After becoming a lawyer and co-founder of the Self-Rep Navigators, my views have changed somewhat. Becoming a lawyer myself has opened my eyes up to the challenges that come with the profession. I can understand why lawyers want to be compensated well for the work they do.  What’s more interesting though, is that I personally met and gotten to know some lawyers who are truly committed and dedicated to the public good. There are lawyers in the Ministry who  sincerely care about making the justice system work better for litigants. There are lawyers who offer unbundled services, who are passionate about the injustice of forcing full retainers on litigants, as this effectively blocks their accessibility to the justice system. I’ve also met lawyers who offer pro bono or low bono services because they truly want to serve the public. For these lawyers, I have no doubt that they do understand that what the law’s true purpose is.

I hope to bring together that special group of lawyers in the Self-Rep Navigators: lawyers who understand the true purpose of law, who recognize that providing unbundled services is the means to the ultimate goal of access to justice.

 

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Procedural fairness and self-represented litigants

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Self-represented litigants often fear how their ignorance in court procedure will put them at a disadvantage against their represented opponents.  Many also have the impression that judges tend to be more lenient towards represented parties.   These beliefs appear to be justified, when we have a case like Watterson v Canadian EMU 2016 ONSC 6744 (CanLII) .   This is an appeal to the Superior Court by unsuccessful self-represented defendants of a Small Claims Court judgement. Essentially, the defendants, Watterson, lost at trial because they did not understand how the court process works. The defendants did not know that in order to present evidence in a way that will be considered by a judge, a party must do so either by testifying themselves in court, or call witnesses to do the same. The defendants, understandably, misunderstood that the Statement of Defence would be equivalent to submission of evidence. Therefore, they were unprepared to testify, or to call witnesses during trial.  As a result, the trial judge found a lack of evidence to support the defendants’ case.

Even worse for the defendants,  the trial judge had allowed the plaintiff’s (Canadian EMU) witnesses to testify, despite their failure in delivering a witness list to the self-represented defendant in advance, in accordance to the rules.  Tactical surprises such as these, where the opponent is not given sufficient chance to prepare a response are frowned upon. The court held that this resulted in a “denial of natural justice” (para. 35).  Furthermore, the court noted that the trial judge had a duty to inform the defendant what his remedies were:

In the present case, the trial judge could have remedied EMU’s failure to deliver a list of its witnesses before trial:

•        by advising the defendants that they were entitled to object to the calling of the witnesses;

•        by asking them, before they cross-examined the witnesses, whether they wished to request an adjournment to give them an opportunity to prepare their cross-examination; or

•        by advising them, after the witnesses testified, that they could request an adjournment to summon witnesses to call in response, or to prepare to testify themselves in response.

In other words, the trial judge is obliged to provide enough explanation of the court procedure to the self-represented so that he understands his procedural rights and options so that he can fully present his case. Understandably, the line between legal advice and legal information (education) is not always clear. In addition, trial judges are fully aware of the concern that by being too helpful to one side, they may be accused of being impartial. However, in this case, it is easy to see the unfairness when a defendant is prevented from having his case heard purely out of procedural ignorance. Thankfully, the Superior Court found in favour of the self-represented defendant (“allowed the appeal”), even if the appeal resulted in a new trial.  This case, as well as other more recent cases (eg.R. v. Tossounian 2017 ONCA 618) indicate that judges are now gradually more aware of their duty to self-represented parties. Hopefully such incidents of miscarriages of justice will decrease, as the tide of self-representation continues to grow.

(Disclaimer: These posts should not be considered as legal advice that is specific to your case.)

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Navigating through the courts-a personal experiment

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I wrote this blog for the National Self-Represented Litigants Project (www.representingyourselfcanada.com) last year, recounting how difficult it was, even for me, to figure out how to navigate through the court procedures as a lawyer. I can imagine how difficult it must be for self-represented litigants. Here it is again, reproduced with permission from NSRLP.

Working with the self-represented

Last summer, one of my clients needed help with a family law matter. The client asked me some procedural questions, such as whether her order would remain in force when a notice of appeal was filed, and whether she would have to attend a hearing relating to trial costs when an appeal was pending.  

As I am not a family law specialist, I could not help this person without learning more about family law appeals myself. I have discovered that even when you think you might know the answer, you might be wrong.  I have learned from experience that there are other unanticipated case-specific factors which come into play, which would only be known to those who have practical experience. I always prefer to get some more definitive information from someone with more experience.  

In this case, instead of referring my client to lawyers, or pestering my colleagues for help, I decided to see if I first could find some answers myself, through research, and assistance from duty counsel or counter staff at the courthouse. Just like a self-represented litigant might.

So began my trip down the rabbit hole….

Searching for answers

I first went to a Family Law Information Centre (FLIC).  I lasted less than 3 minutes there. As soon as I disclosed that I am a lawyer (but not specialized in family law) trying to help someone else, the intake staff person immediately cut me off. She said firmly, “Sorry. We cannot help you. You should get yourself educated.”  This is an understandable policy – FLIC is there to help laypeople, not lawyers – but this was not a welcome start to my experiment.  

Next, I went to the Great Library of the Law Society of Upper Canada (open to the public and hence to self-represented litigants) to research the questions, but even as a trained lawyer with familiarity with legal materials, I could not find clear answers there. 

I then decided to continue to seek help at the courthouse at Osgoode Hall, the location of the Court of Appeal and the Divisional Court.  I first went to reception and enquired about assistance. The receptionist said I should talk to duty counsel, who would be sitting “outside Courtroom 7”.  I was disappointed and rather surprised to discover that the existence of duty counsel services was not clearly marked; there was no signage or booth. I only learned that duty counsel services were available from speaking to the receptionist. 

I looked outside Courtroom 7, but noone was there. When I reported this back to the receptionist, he told me that duty counsel is present only on every Wednesday morning (this was late morning on a Wednesday) so I should come back in a week.  

Next, I went to the Court of Appeal counter. Since my questions related to the filing of an appeal, as a lay litigant it would be reasonable to assume that this was the court that dealt with issues surrounding appeals.  I waited for 45 minutes. There was only one counter staff on duty because it was the lunch hour. When it was my turn, they said I was in the wrong place, and told me to go the Divisional Court counter.  

I proceeded to Divisional Court as advised. A staff member came to assist me, but she said she could not help and I had to go to the FLIC office.  Of course, I could not go to the FLIC office, as I was turned away earlier.

The net result of my efforts was 2.5 hours spent trying without success to get answers to my procedural questions.

  Filling the gap: the “Navigators” model

It is because of this gap of assistance that I believe that we need procedural “navigators” present at courthouses who can assist self-represented litigants. Currently, Nova Scotia has a pilot called the Public Navigator Program that offers assistance by trained lay members of the public and is restricted to procedural information. http://www.legalinfo.org/public-navigator-information/recognition.html

In addition, a huge difference could be made if lawyers would offer procedural “coaching” services to the primarily self-represented under limited scope retainer agreements. I think the private Bar can make such a tremendous contribution to access to justice by providing this type of critical procedural assistance. Self-represented litigants are constantly confounded and derailed by their unfamiliarity with legal procedure and the lack of definitive answers (as in this case) to important procedural questions. 

Comprehensive legal coaching

And of course, lawyers are able to offer a comprehensive menu of legal coaching services, going beyond procedural information.  I often refer clients to the Self-Rep Navigators (www.limitedscoperetainers.ca) for coaching that includes legal advice on the merits of their case. I hope that legal coaching will take off as the new trend in legal service delivery, so that all litigants will have access to at least some assistance in their litigation. 

How Court houses Can Truly Help 

Wouldn’t it be wonderful if self-represented litigants had access to a list or roster of lawyers who offer coaching and other limited scope services, directly from the court house?  I was elated to find that the Barrie court house does have such a list Davids v David, 2017 ONSC 3766 (CanLII)! I hope that other court houses will follow suit, so that all litigants will have access to legal assistance.

I’d like to thank Prof. Julie Macfarlane for all her assistance on this article.

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Judge’s duty to help self-represented litigants

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In a recent case, R. v. Tossounian, 2017 ONCA 618 (CanLII), the Court of Appeal ruled that the trial judge did not do enough in helping a self-represented accused person at trial.  The defendant was accused of arson, and was convicted at trial. On appeal,  the Court found that the accused’s right to disclosure was violated, and that there was inadequate assistance from the trial judge. The Court of Appeal ordered a new trial.

The Court of Appeal noted that a trial judge has the duty to  make sure that the accused’s right to a fair trial was not violated (in this case, right to full disclosure). In addition,  a trial judge must also ensure that the self-represented person understands what her rights are, and the remedies to the infringement of those rights. Guidance must be given so that the self-represented person’s defence is “brought out with its full force and effect” (para.  36).  The Court cited the Statement of Principles on Self-represented Litigants and Accused Persons  issued by the Canadian Judicial Council (2006). What is also noteworthy is that in this case, the Court found that it did not matter that the accused did not raise the issue about disclosure at trial. This makes sense, as most self-represented litigants with little legal knowledge would have difficulty making objections during trial.

It is encouraging that courts are making the effort to even out the playing field, so that all litigants can be assured to a fair trial process.

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Summer Reads

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When I was a self-represented litigant, one of the things I feared the most was how to present our case at trial.  I was a law student at the time. I had taken courses on Civil Procedure and  Evidence Law, and I knew how complex these areas of law were.  In particular, I was very concerned about the strategies lawyers have in examination and cross examination of witnesses. How would a self-represented litigant be able to defend herself against a lawyer on the other side, when she’s ignorant of the skills and tactics lawyers possess?

Recently, I discovered two really great books on advocacy. The first one is titled “The Devil’s Advocate. A Spry Polemic on How to be Seriously Good at Court” (3rd edition,Sweet & Maxwell, 2015), written by a British barrister, Iain Morley Q.C.  This book is a compilation of tips that Mr. Morley has accumulated from his decades of practice.  This is an amazing book. It grabs you right from the start. It’s written in plain English. Mr. Morley writes “The book should read like I’m talking to you, with colour and enthusiasm.”  And it does.

The layout in this book is very unique.  There is only a paragraph or two on each page, with lots of white space, which makes it very easy to read. There are lots of phrases that are printed in capital letters for emphasis. It looks like a small book, but it is jam packed with tons of insightful tips on advocacy. My favourite chapter, of course, is the one on cross-examination. He gives you ten tips (rules), and examples to illustrate each one.  What is really surprising to me is that he advises the reader that the general rule is not to cross examine a witness (p. 229). He goes on to say that in real life, it’s just not what it’s like on television. I would have thought that in our adversarial system, cross examination is a procedure that every litigator looks forward to applying at every hearing!

The second title that deserves high praise is James C. Morton’s “Procedural Strategies for Litigators” ( 3rd edition, Lexis Nexis Canada 2015).  Like “The Devil’s Advocate”, this book is small in size, but hugely informative.  During law school, I was naively impressed by how each rule has specific purposes, which ultimately seeks to promote fairness to all parties. Of course, once I went into practice, I realized how many of the rules are used in a tactical manner that has little to do with the original purpose of the rule!  This book describes many such tactics. One example is the “dump truck” strategy, used in the discovery phase of a proceeding. Although fairness dictates that both sides ought to produce and disclose their evidence prior to trial, what ends up happening is that a party can purposely overwhelm the other side with large volumes of documents in an attempt to frustrate them. There are examples of numerous other tactics in this book and how to counter them. My favourite is the section that includes how to deal with bullies, an issue that unfortunately comes up on a frequent basis these days.

I highly recommend both titles. These books are an excellent resource for all litigants and lawyers. Happy reading this summer!

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Basic Legal Research Seminar

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Date: Feb 13, 2017

Time: 6:00 p.m.7:00 p.m.

Location: Barbara Frum Library

This will be workshop is targeted to those who are thinking of starting a lawsuit, or for those who are in the middle of the litigation process, who would like to learn how to do some research on their own. I will give you an introduction to legal research, using the free database CanLII. Other helpful resources will also be discussed. No registration is required, tickers will be distributed 30 minutes before the session from the 2nd Floor Reference Desk. For more information please call Barbara Frum Branch at 416-395-5440 or click here: Seminar

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New book for SRLs: Representing Yourself In Court

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There is a newly published book by Devlin Farmer called “Representing Yourself in Court. How to Win Your Case on Your Own.” (Self-Counsel Press 2016).  All I can say is that I wish I had this book when I was a self-represented litigant.

This book explains the fundamental concepts an SRL needs to understand for the litigation process. I especially like the way Mr. Farmer conveys difficult concepts in clear, plain English.  For example, normally, rules of evidence are so complex that law schools design a whole course dedicated to it, and lawyers have continuing education courses in this area. While it’s unrealistic to expect SRLs to have the same level of knowledge as lawyers in this area, it is important that they have at least the basics explained to them. Mr. Farmer gives a great overview of the basic concepts of hearsay and privilege in Chapter 5 of his book.

Furthermore, Mr. Farmer provides easy to understand examples to illustrate his points. For instance, one very common problem amongst SRLs is that it’s often difficult for them to distinguish legal issues from moral ones. We often think that the court is there to provide justice for someone who suffered harm caused another. However, what many people don’t realize is that you cannot sue for every wrong! If your case does not involve a legal issue that has a legal remedy, it will be thrown out of court.  The book gives some excellent examples of what disputes you can go to court for, and which ones you cannot.  This is a really important point. It’s also the reason why a potential plaintiff should seek the advice of a lawyer before starting a lawsuit.

I definitely recommend this book to all litigants (self-represented or not), those who are new to the court process, and even for those who are facing an upcoming trial. I think it’s important that all litigants, to be educated about the court process. Obviously, one cannot say that this book contains every single bit of information every litigant will need. However, this book provides the essential background information for an SRL, which, if used in combination with a lawyer on a limited scope retainer, may well give an SRL the knowledge that they need to succeed in court.

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Lord Denning on Stare Decisis

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In our legal system, one of the most fundamental concepts is doctrine of precedents. The legalese term for this is “stare decisis“, which translates  to “let the decision stand”.  In a very general sense,  it means that if a court has already decided on a particular legal issue in one case, the court should follow its decision on that same issue in subsequent cases.

Lawyers work hard to find case law to support their client’s position. I often get so immersed in the finer points of legal research, that I find it refreshing to be reminded of why many of us become lawyers in the first place: to seek truth and justice.

I remember being introduced to Lord Denning’s decisions when I was a law student at Osgoode, a famous judge in England who contributed substantially to the development of the law.   I will quote my favourite passage from a lecture he gave at Oxford, called “From Precedent to Precedent”:

 

…Just as the scientist seeks for truth, so the lawyer should seek for justice. Just as the scientist takes his instances and from them builds up his general propositions, so the lawyer should take his precedents and from them build up his general principles…

Many a lawyer will dispute this analogy with science. “I am only concerned,” he will say, “with the law as it is, not with what it ought to be.” For him the rule is the thing. Right or wrong does not matter. That approach is all very well for the working lawyer who applies the law as a working mason lays bricks, without any responsibility for the building which he is making. But it is not good enough for the lawyer who is concerned with his responsibility to the community at large. He should ever seek to do his part to see that the principles of the law are consonant with justice. If he should fail to do this, he will forfeit the confidence of the people. The law will fall into disrepute: and if that happens the stability of the country will be shaken. The law must be certain. Yes, as certain as may be. But it must be just too.*

 

Even though this passage was delivered in 1959, I think it is just as relevant today. Certainty in the legal system is a great virtue, but it does not mean precedents should be followed blindly.   The doctrine of precedents exist to serve the fundamental principles of truth and justice.

 

* The Rt Hon Lord Denning, Master of the Rolls. “The Discipline of Law”. Butterworths, London 1979.

 

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Ernst versus EnCana

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I was just listening to Jessica Ernst’s interview on CBC this morning, and I must say that I was so moved by her story. Ms. Ernst is suing EnCana (and various other co-defendants) for contamination of ground water as a result of fracking.  This is certainly a David versus Goliath case. Imagine being an individual landowner, suing a mega corporation like EnCana. While she has counsel (Murray Klippenstein), this has definitely not been an easy journey. She spoke of the personal attacks and lack of community support she has endured during the litigation. She spoke of her financial hardships.  She has refused to settle on principle. EnCana is contaminating water that belongs to everyone.  She admits quite candidly that she did not choose to be in the public eye, that being on radio interviews has been a major stress. Yet, she does it anyway, because, it is the right thing to do.

I think it’s really hard to explain to people sometimes, why one persists in litigation. Sometimes, people think litigants are just very stubborn, or they’re trouble-makers. They should just let things go. People find it hard to understand where all the energy and motivation come from, the strong urge to right a wrong. However, in this case, Jessica’s message came through loud and clear: this is a case that needs to be out in the open. This is a case that needs proper adjudication by the courts.  I want to thank Jessica for being so incredibly courageous and persistent. I will be following closely in her Supreme Court Appeal in January 2016.

For more information on her story, please visit:

Jessica Ernst’s Story

I strongly recommend you to listen to her interview, please click here:
CBC Interview

 

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