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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