Tribunal Assistance to Self-Represented Litigants

Self-represented parties or self-represented litigants are individuals who appear before an adjudicator (judge, jury, tribunal, or discipline panel) or participate in any legal proceeding without legal representation. They represent themselves. Proceedings or matters with self-represented parties can be challenging for both parties (the self-represented party and the represented party), as well as the adjudicators. There can be misunderstandings and confusion as well as delays and interruptions in the process.

The Law Society of Ontario’s Rules of Professional Conduct explain how lawyers are expected to communicate and deal with self-represented parties. However, what are the roles of adjudicators and self-represented parties at a hearing or proceeding? How can adjudicators ensure a fair process?

Statement of Principles

The 2006 Statement of Principles on Self-Represented Litigants and Accused Persons (the “Statement”) was established by the Canadian Judicial Council and sets out the responsibilities of judges, court administrators, legal counsel, legal aid organizations and government funding agencies in ensuring that self-represented parties receive fair access and equal treatment by the court. The Statement makes it clear that the judiciary must help parties “understand and meaningfully present their case, regardless of representation” and explain that all participants in the legal process are “accountable for understanding and fulfilling their roles in achieving equal access to justice including procedural fairness”.

The Statement provides that when assisting self-represented parties, judges and courts are expected to:

a.  provide information, assistance and self-help support required by self-represented parties;

b.   inform self-represented parties of the potential consequences and responsibilities of proceeding without a lawyer and if necessary, refer them to sources of representation or appropriate sources of information, education, advice and assistance;

c.   take steps to provide a fair and impartial process and prevent an unfair disadvantage to self-represented parties;

d.   ensure that self-represented parties are not denied relief because of a minor or easily rectified deficiency in their case;

e.   where appropriate, engage in case management as early in the process as possible in order to protect the rights and interests of self-represented parties;

f.   if necessary, the presiding judge may do the following to help ensure self-represented parties are able to meaningfully present their case:

 i.   explain the process and inquire whether both parties understand the process and procedure;

ii.  refer to agencies that may be able to assist self-represented parties in preparing their case;

ii.   provide information about the law and evidentiary requirements or rules;

iv.  modify the traditional order of taking evidence; and

v.   question witnesses. 

Courts have adopted the Statement.[1] Judges cannot let a self-represented party flounder. Judges are responsible for directing self-represented parties and explaining the process to them. However, self-represented parties have certain responsibilities with respect to their own conduct during legal proceedings. For example, self-represented parties are expected to familiarize themselves with the relevant legal practices and procedures pertaining to their matter and prepare their own case accordingly.  

Self-Represented Parties and Tribunals

Tribunals (such as Discipline Committees of self-regulated professions) have found the Statement to be relevant and applicable to their processes and proceedings as well.[2] A recent appeal of a decision of the Discipline Committee of the College of Nurses (the “Panel”) confirms that the application of principles with respect to ensuring a fair process for self-represented litigants applies to Tribunals in a similar manner as it does in Courts.

In the 2022 Ontario Divisional Court case, Hirtle v. College  of Nurses of Ontario, a nurse (the “Appellant”) represented himself throughout the discipline proceedings before the Panel with respect to allegations of inappropriate conduct and sexual abuse. He was found guilty and appealed this decision on certain grounds, including that the Panel provided inadequate assistance to him as a self-represented party.

In reviewing the Panel’s decision, the Court noted that the Chair of the Panel outlined the procedure to be followed in the discipline process, including the role of independent legal counsel. The Chair explained:

• that objections are made to the Chair;

• the function and procedure surrounding opening statements;

• cross-examinations;

• objections to documents being admitted into evidence;

• when the self-represented party introduces documents and calls witnesses;

• that he can testify on his own behalf and would be subject to cross-examination;

• the function of final arguments; and

• that the Panel will adjourn to consider the evidence.

The Chair also discussed each allegation against the Appellant and asked for his position on the allegations. When the Chair asked the Appellant if he had any questions about the information that was provided to him, the Appellant responded that he did not.

On appeal, the Appellant claimed that he did not receive assistance from the Panel with respect to admitting or denying allegations, the burden of proof, the standard of proof, credibility, reliability, hearsay, how to authenticate documents, summons a witness, understanding the difference between asking questions and making submissions, providing evidence, the use of prior statements, as well as other aspects of the discipline proceeding where the Appellant claims he required assistance and guidance but did not receive any. The Court considered whether the Panel failed to adequately assist the Appellant throughout the discipline hearing and if so, whether that gave rise to a breach of procedural fairness.

The Court found the Panel provided the Appellant relevant information and took considerable steps before and during the hearing to explain the process to the Appellant and provide materials about the topics he raised on appeal. Notably, the Court stated that the Panel’s responsibilities to self-represented parties are not unlimited and cannot compromise the requirements of judicial neutrality. The Panel, while responsible to assist self represented parties, must also keep in mind the obligation to conduct a fair and impartial hearing and must respect the rights of the other party or parties. Simply put, there are reasonable limits to an adjudicator’s duty to assist self represented parties and self-represented parties (in this case, the Appellant) are obliged to inform themselves and prepare for their hearings.

Conclusion

While adjudicators are obliged to assist self-represented parties in understanding and presenting their case, there are limits to this assistance. Depending on the experience and training of the adjudicator(s), they may wish to seek legal advice (such as from independent legal counsel) as they seek to strike a balance between their duty to assist a self-represented party, and their obligation to conduct a fair and impartial hearing.

Self-represented parties, for their part, are expected to sufficiently inform themselves and prepare their case. These responsibilities can be tremendous and overwhelming for self-represented parties, even with the assistance of the adjudicator. A lack of understanding of the legal process can lead to significant misunderstandings, mistakes and missed opportunities to present meaningful details of a case. We encourage individuals considering self-representation to seek consult with a lawyer for assistance or where possible, legal representation. Where legal representation is not an option, there are many self-help resources that may assist.

[1]See cases such as Girao v. Cunningham, 2020 ONCA 260 and Pintea v. Johns, 2017 SCC 23.

[2] See for example, Hirtle v. CNO, 2019 132488 (ON CNO).