Contrasting Petersoo v. Petersoo and Moore v. Apollo Health [And] Beauty Care: Should a Judge or Arbitrator Ever Become an Advocate?

The Ontario Court of Appeal recently held in Petersoo v. Petersoo that a family law arbitrator should not ensure that a represented party is aware of an issue that is raised in the arbitration. This contrasts with Moore v. Apollo Health [and] Beauty Care, in which the Court of Appeal determined in 2017 that a judge who did not ensure that an unrepresented plaintiff who had intended to raise a claim had failed in his responsibility.

Ms Petersoo and Mr. Petersoo were divorced and had developed a parenting plan for their three children, review of which by an arbitrator was included in their separation agreement. The parenting plan provided that the children would live with their mother most of the time and she would be the main contact person as far as educators and health providers were concerned, but they were to be with their father on alternate weekends, Tuesday nights and alternate Thursdays after school until 7:30 pm, as well as vacations. This arrangement did not appear to work for any of the children who exhibited different difficulties and their mother went to a developmental pediatrician, Dr. Handley-Derry. The arbitrator required the parents to obtain an assessment from Dr. Raymond Morris. The children did not improve and their mother sought review of the custody arrangement as provided by the separation agreement.

Dr. Hanley-Derry recommended that the children attend a school where a “Direct Instruction” method was available; it would provide special attention to the children. The children’s mother decided that the most appropriate school was one in Kitchener. The children’s father did not agree that the children were having difficulties and he wanted to spend more time with them; Dr. Morris had recommended that three days should not go by without the children’s seeing their father. Dr. Morris did not give an opinion about moving the children because his report pre-dated the mother’s request to move. The arbitrator ruled that the mother be allowed to move the children to Guelph to enable them to attend the school.

After the mother had moved and the children were in their second year in the school, the father appealed the arbitrator’s decision. The appeal judge ordered a new arbitration before a different arbitrator. The father had learned about the mother’s plan to move the children only very shortly before the arbitration. On July 4, 2017, the mother served an offer to settle on the father that included that she be able to move to Guelph to allow the children to attend the preferred school. The parents exchanged opening statements on July 6th and again the mother included reference to the move to Guelph and the children’s attendance at the school. The arbitration began on July 7th.

Section 19(2) of the Arbitration Act, applicable to the family law arbitration, states, “Each party shall be given an opportunity to present a case and to respond to the other parties’ cases.”. The appeal judge held that Mr. Petersoo had not had sufficient opportunity to make a case about the move and was thus denied fundamental fairness. The appeal judge stated,

… in my view, when a critically important issue like mobility is raised for the first time before the arbitrator at the arbitration, in view of the obligation in s. 19(2) of the Arbitration Act, it was incumbent on the arbitrator to enquire about the issue to ensure proper notice has been given. The arbitrator could not have learned of the issue any earlier than Mr. Petersoo did. It was not discussed at the pre-arbitration meeting. The arbitrator should have recognized the issue as a new one and made enquiries as to when it arose. (Petersoo, Appeal Judge, para. 32 [emphasis added]

In the appeal judge’s view,

The lack of notice of the mobility issue caused a fundamental procedural unfairness to Mr. Petersoo. Mr. Petersoo was unable to seek evidence from Dr. Morris about the effect a move may have on the children, or through Dr. Morris, obtain evidence about the children’s views and preferences regarding the move. He was unable to obtain an educational report of his own addressing whether St. Jude’s/Scholars Hall [the school the mother had chosen] was a good choice for the children in view of their educational needs. He was unable to develop the record to properly address the mobility request. (Petersoo, Appeal Judge, para. 34)

The appeal judge continued at para. 35, “The failure to ensure procedural fairness in the process is a denial of natural justice. This denial amounts to an error of law that requires intervention. It is necessary to set aside the arbitral award as it relates to parenting issues.”

The father had not taken any of the steps to address the fact that he had not been given sufficient notice of the mother’s plan. He did not seek an adjournment of the arbitration, apparently believing (or his lawyer believing) that because he had been granted a short adjournment peremptory on him, he could not seek an adjournment, although the appeal judge was of the view that this was not the case and he should have sought an adjournment (Petersoo, Appeal Judge, para. 31). He neither objected to the arbitrator’s considering the move nor did he seek a stay of the order.

The Court of Appeal disagreed with the appeal judge’s view of the matter and the duty she had imposed on the arbitrator. The court stated that given the importance and benefits of the mediation/arbitration process in resolving family matters, “[t]he decision of an arbitrator, particularly in child-related matters, is therefore entitled to significant deference by the courts” (Petersoo, CA, para. 35).

For several reasons, the Court of Appeal held that the judge erred in law in finding that the arbitrator had breached section 19(2) of the Arbitration Act, 1991 One reason is that her “interpretation of s. 19 of the Arbitration Act establishes a new duty for arbitrators that would fundamentally change the arbitration process and undermine arbitral independence and impartiality” (Petersoo, CA, para. 40) and “[w]hen parties are represented, it does not fall to the arbitrator to move to the role of advocate” (Petersoo, CA, para. 51). Importantly,

The appeal judge placed an obligation on the arbitrator to depart from his role as independent adjudicator and move to the role of advocate. This would compromise his independence and potentially breach his duty of impartiality. Section 19 does not require the arbitrator to descend into the arena and become an advocate or advance a party’s case. (Petersoo, CA, para.53 [emphasis added])

The emphasis placed by the Court of Appeal on the importance of the arbitrator’s staying out of the fray in Petersoo results in a different standard than that expected by the Court of Appeal in Moore v. Apollo Health and Beauty Care. In that case, a Small Claims Court judge had found in favour of Ms Moore in holding she had been constructively dismissed, but denied her wage claim on the ground that she had abandoned it. Ms Moore sought review of that decision, which had the same result. She then appealed to the Divisional Court on the basis that she had not abandoned her claim. During the trial, the judge on review asked Ms Moore if she expected to be compensated for the unpaid wages, but she replied that she was raising them to explain one of the reasons she left (Moore, Divisional Court, para. 16). The trial judge “said that he would have found for Moore but for his view that she had waived and abandoned valid heads of damages” (Moore, Divisional Court, para. 19).

The Divisional Court dismissed Ms Moore’s appeal:

[22] In my view, the trial judge made no palpable and overriding error in construing the evidence at trial and Moore’s position as he did. Moore presented no documentary quantification of any losses sustained by her and told the trial judge that she was “just explaining one of the reasons” why she left, i.e., why she claimed that she had been constructively dismissed.

[23] Although Moore is a self-represented litigant, she is evidently very capable. The trial judge was obliged to be fair and even-handed in his conduct of the trial and could not function as her counsel. Moore did not pursue any specific money compensation for the pay differential issues, and specifically said she was not expecting compensation for them. The trial judge was entitled to conclude that she had abandoned any claim for repayment.

[24] The motion for review which was heard and dismissed by the trial judge likewise reveals no error. This was not a mathematical or arithmetic slip of the kind that might be capable of correction using that procedure. Rather, it was a substantive determination that could only be reversed or altered on appeal.

Ms Moore appealed the Divisional Court’s decision. The Court of Appeal held that both the trial judge and the Divisional Court had “misapprehended Ms. Moore’s evidence and did not assess one short statement made by her in the context of her entire evidence”. Furthermore, “they failed to take the proper approach in ascertaining whether Ms. Moore, a self-represented person, in fact had abandoned part of her claim” (Moore, CA, para. 36). On the first point, Ms Moore had itemized her claim, had submitted time cards and had testified about relevant days for which she had not been paid. On the second, the trial judge should have made further inquiry after Ms Moore said that she was raising the issue of unpaid wages to help explain why she left Apollo.

The Court of Appeal held that the trial judge had an obligation to ensure that Ms Moore was in fact abandoning her claim because she was an unrepresented or self-represented litigant. The court quoted extensively from the Canadian Judicial Council’s Statement of Principles on Self-represented Litigants and Accused Persons, which had been approved by the Supreme Court of Canada in Pintea v. Johns in 2017.

As the Court of Appeal explained, the trial judge provided Ms Moore with a great deal of assistance, but he failed in one crucial respect: he

did not make sufficient inquiries before concluding Ms. Moore had abandoned her claim for Unpaid Wages. Where the evidence of a self-represented party raises a question in the trial judge’s mind about the specific relief the party is seeking, a trial judge must make the appropriate inquiries of the party to clarify the matter. Those inquiries must be made in a clear, unambiguous, and comprehensive way so that several results occur: (i) the trial judge is left in no doubt about the party’s position; (ii) the self-represented person clearly understands the legal implications of the critical choice she faces about whether to pursue or abandon a claim; and (iii) the self-represented person clearly understands from the trial judge which of her claims he will adjudicate. (Moore, CA, para. 47)

Since “[t]he trial judge’s misapprehension of Ms. Moore’s evidence was palpable on the face of the transcript,” the Court of Appeal set aside the trial judge’s decision relating to unpaid wages and awarded her the damages on which the parties agreed (Moore, CA, para. 50).

Had the father been unrepresented, would the Court of Appeal in Petersoo required that the case be sent back to the arbitrator to allow the father to address the issue of the mother’s move and the children’s enrollment in the school she had selected? Would the stages of the case ended at the appeal judge’s decision, since the duty she would have imposed on the arbitrator “to enquire about the issue to ensure proper notice has been given” would have been akin to that imposed on the trial judge in Moore? Would the father’s failure to object to the arbitrator’s addressing the issue of the move, to ask for an adjournment or to seek a stay of the decision been seen in a different light as reflective of the complexity of the processes that we cannot expect unrepresented litigants to know or understand? Based on the CJC’s Statement of Principles (that would apply at least to the appeal judge and possibly to the arbitrator by analogy), Pintea v. Johns and Moore, at some point, the father would likely have had the opportunity to make his case.

Or does the fact that Petersoo v. Petersoo involves the best interests of children, and of children “in crisis”, to use the words of the Court of Appeal at para. 50, change that assessment? The longer the process went on, the more the children’s interests would be disadvantaged. (And we have to remember that the original parenting plan, with the time spent with the father, did not appear to benefit the children.)

We do not know the quality of representation the father had or how he responded to his lawyer’s advice and my comments are not to suggest that his lawyer was anything other than competent. Using the facts of the case, however, to consider the impact a claim of ineffective counsel might have, hypothetically, one might question who decided that he could not seek a further adjournment of the arbitration because the arbitrator had earlier given him a short adjournment “peremptory” on Mr. Petersoo, or who advised or decided that he should not seek a stay or take any steps to address the move until he appealed the appeal judge’s decision at the last minute.

Most ineffective counsel claims occur in criminal cases.The test for determining whether ineffectiveness of counsel is sufficient ground for an appeal is that counsel’s actions (or lack of them) constituted incompetence and that if so, they resulted in a miscarriage of justice (see, for example, the 2016 decision of R. v. Meer). In his 2017 Endorsement in SMTCL Canada Inc. v. Master Tech Inc., Chief Justice Strathy said that “an ineffective assistance of counsel claim … is unusual in civil cases and rarely available”. The Chief Justice cited the 2004 decision of the Court of Appeal in D. W. v. White (leave to appeal to Supreme Court of Canada refused, [2004] S.C.C.A. No. 486), which considered the issue in greater detail. Mr. Justice Catzman, Moldover and Goudge JJ.A. in agreement, did not foreclose ineffectiveness of counsel as a ground of appeal in a civil case, but would limit it

to the rarest of cases, such as (and these are by way of example only) cases involving some overriding public interest or cases engaging the interests of vulnerable persons like children or persons under mental disability or cases in which one party to the litigation is somehow complicit in the failure of counsel opposite to attain a reasonable standard of representation. (para. 55)

Once a plaintiff or respondent retains a lawyer, he or she will in the normal course have to live with the consequences of the quality of the lawyer’s representation. The judge (or, presumably, an arbitrator) can intervene only with care, and being careful to not become an advocate should the lawyer fail to raise a particular issue that might benefit the client or take an appropriate procedural step. The un- or self-represented party on the other side, however, may benefit from the judge’s intervention even to the extent of “explain[ing] the relevant law in the case” (Moore, CA, para. 45, citing the Statement of Principles). This may not seem fair to the party who is paying for counsel, but it is also not “fair” that litigants must struggle with the complexities of the legal system on their own.

Many litigants in family cases are unrepresented and these cases are complicated by the inclusion of issues relating to the best interests of the children. In Petersoo, the best interests of the children would likely have overriden Mr. Petersoo’s efforts to raise the mother’s move and the children’s change of school at any point beyond the arbitration, even if his own conduct appears to have sealed his opportunity to do so. The question is, what would have happened had Mr. Petersoo represented himself? The mere fact that we can ask the question indicates the different standards applied in the adjudicator’s role. The inference in the Court of Appeal’s statement in Petersoo that “[w]hen parties are represented, it does not fall to the arbitrator to move to the role of advocate” is that when a party is not represented, “it does … fall to the arbitrator to move to the role of advocate”.

The imbalance in the adjudicator’s role towards the parties as illustrated by Petersoo, on the one hand, and Moore, on the other, reinforces how crucial the efforts to increase options for litigants to obtain counsel (or generally, legal representation) are rather than pretend that unrepresented litigants are able to acquire sufficient information to represent themselves adequately or impose on adjudicators the obligation to become advocates for unrepresented parties.

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