Court of Appeal Provides Guidance on Duties of Decision-Makers and Counsel to Self-Represented Litigants

By: Sari Feferman

Introduction

In Grand River Conservation Authority v. Ramdas, the Ontario Court of Appeal (the “Court of Appeal”) made several important observations about counsel’s duties and responsibilities when opposing self-represented litigants (SRL) in court, as well as about the duties of judges (and tribunals) in proceedings involving SRLs.

Background Facts

The appellant, Ms. Ramdas owned property in the Township of Amaranth (the “Township”), on the edge of a wetland regulated by the Grand River Conservation Authority (the “Conservation Authority”). After finding a leak in her basement, she began repairs without obtaining permits from the Township or Conservation Authority. The Township and Conservation Authority asked that the repairs be stopped. Ms. Ramdas was charged with violating the Conservation Authority Act and a related regulation. A stop work order and a remedial order were delivered to Ms. Ramdas prohibiting her from continuing the work and requiring her to restore the land to its original condition. Despite this, the repair work continued. Ms. Ramdas was served with a summons to appear in court.

The Applications for Interim Injunctions

The Conservation Authority and the Township brought applications for injunctions in the Superior Court of Justice (the “SCJ”) to prevent Ms. Ramdas from continuing the work. The SCJ granted the requested interim injunctions on August 27, 2018. Proceedings were adjourned several times after that, and on June 3, 2019, the SCJ ordered that no further adjournments would be granted without leave.

The Applications for Permanent Injunctions

The applications for permanent injunctions were before the application judge on November 12, 2019. Ms. Ramdas was self-represented. Her previous counsel served – but did not file – her responding material and she did not file or serve her factum. The application judge did not grant a further adjournment. Instead, the hearing proceeded without evidence from Ms. Ramdas. The requested permanent injunctions were granted.

The Appeal of the Permanent Injunctions

Ms. Ramdas appealed the order for the permanent injunctions. She argued that the application judge improperly denied her request for an adjournment. She also argued that it was inappropriate for the Conservation Authority and the Township to proceed by way of application because there were contested facts that were set out in the material that her previous counsel served – but did not file – on the parties.

With respect to the issue of the adjournment denial, the Court of Appeal stated that judges have broad discretion to grant an adjournment and the Court of Appeal is “highly deferential” to judges in that regard. Additionally, Ms. Ramdas’ request for an adjournment was not clear on the transcript and she did not advise the applications judge what she would do if an adjournment was granted. For these reasons, the Court of Appeal did not interfere with the application judge’s adjournment refusal.

With respect to Ms. Ramdas’ position on the application and the contested facts, the Court of Appeal noted that there was overwhelming evidence that Ms. Ramdas proceeded with repairs without the requisite permits.

While the Court of Appeal ultimately dismissed Ms. Ramdas’ appeal, it made some significant observations and comments about the litigation process as it unfolded in this case.

Observations of the Court of Appeal  

The Court of Appeal noted that Ms. Ramdas was self-represented before the application judge. While self-represented litigants are expected to be familiar with the legal practices and procedures related to their case as well as the court process, the court still has a duty to ensure that self-represented litigants receive a fair hearing. For example, instead of relying on counsel for a clear and accurate understanding of the litigation, judges and tribunals must accommodate self-represented litigants by giving them the opportunity to explain how they understand their matter.

The Court of Appeal also noted that often, self-represented litigants do not fully understand the difference between evidence and submissions and may inadvertently give evidence while making submissions. Because reliable evidence is only admissible if it is given under oath, the Court of Appeal suggests having judges swear in the self-represented party and allowing submissions to be made from the witness box (and to permit cross-examination). Judges can then make findings on the evidence (where appropriate). The Court of Appeal noted this could be a litigation tool in applications or motions.  Judges can also decide whether to engage in “active adjudication”. However, the Court of Appeal warned judges to be careful not to cross the line between assisting self-represented litigation in presenting their evidence and becoming their advocate.

Finally, the Court of Appeal highlighted the duty of counsel opposing SRLs to assist both the SRLs and the court “to ensure that justice is not only done but is seen to be done”. Generally, lawyers have duties to the court or tribunal, including acting with candour, fairness, courtesy, and respect. Lawyers must present their client’s case in a candid and comprehensive manner and not to mislead the court (or tribunal). For guidance, the Court of Appeal referred to the Law Society of Ontario’s Rues of Professional Conduct and the American College of Trial Lawyers’ Canadian Code of Conduct for Trial Lawyers Involved in Civil Actions Involving Unrepresented Litigants. Lawyers can also refer to The Advocates’ Society’s Principles of Civility and Professionalism for Advocates which outlines the advocate’s duty to SRLs.

The Court of Appeal pointed out that lawyers are directed to:

  • not try to derive benefits for clients because the opposing litigant is self-represented;
  • when there is no real prejudice to their client’s rights and interests, acknowledge their duty to the court in considering reasonable requests for adjournments or waivers of procedural formalities; and
  • advise the court of all material communications and agreements counsel reached with the self-represented litigant.

The Court of Appeal noted that counsel for the respondents were “remiss in not alerting the application judge on a timely basis that the interim injunctions were in place, with which Ms. Ramdas had complied”. Counsel also should have alerted the application judge that Ms. Ramdas served materials so not to give the application judge the (wrong) impression that Ms. Ramdas did not comply with previous judicial directions. Due to the concerns raised by the Court of Appeal, it did not award costs on the appeal.

Conclusion

This case is significant in its discussion of adjournments and more notably, the treatment of SRLs. The observations made by the Court of Appeal regarding self-represented litigants and the duties of lawyers and adjudicators to assist self-represented litigants and ensure the proper administration of justice apply broadly. For example, members of regulated health professions often represent themselves before discipline panels of their Colleges when faced with allegations of professional misconduct. Action may be required by discipline panels and College counsel to ensure that they receive a fair hearing.

This Court of Appeal decision serves as a reminder to all counsel to not take advantage of self-represented litigants, to recognize their vulnerability in a proceeding and to advise the court or tribunal of relevant procedural issues, even if doing so may benefit the opposing, self-represented litigant.

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