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.