Self-represented litigants (SRLs) make up a significant percentage of litigants appearing before the court in civil and family cases. In the NSRLP’s 2013 report data provided by provincial ministries of justice indicated that at least 40% of individuals who appeared in provincial family court and at least 30% of litigants in civil court are self-represented.
These statistics are staggering, and it is no secret that SRLs face unique challenges within the court systems across Canada. Although it is the case that Canadian courts operate with the principle of access to justice as a foundational pillar, the reality is that the court system has largely been designed for practitioners who have received formal legal education and training, and not for those who seek the court’s services.
In the 2017 Pintea decision, the Supreme Court of Canada held that to ensure that SRLs are afforded a fair trial, judges should offer them guidance and assistance on procedural matters within the spirit of the Canadian Judicial Council (CJC) Ethical Principles for Judges. The question that Pintea left largely unanswered was: how, exactly?
Pintea has since been considered by courts in cases involving SRLs across Canada. In 2018 the NSRLP published a research report which identified trends in how courts were interpreting and applying the Pintea decision. This report expressed some concern about decisions that suggested SRLs were exploiting their unfamiliarity with the complexities of the legal process to “abuse the system” and the limitations we were starting to see on the application of Pintea.
Since it has now been almost 4 years since the Pintea judgment was rendered by the Supreme Court, it is timely to update our research (please see the full Report here) on how courts are applying, distinguishing, and imposing limitations on this important precedent in their interactions with self-represented parties.
Applying Pintea to assist self-represented litigants
Since 2018, some courts have reinforced the CJC Principles in a way that underscores the importance of judges engaging in active courtroom management where SRLs are concerned. But what does “active courtroom management” look like?
Some cases have applied Pintea by stating that judges should ensure that evidentiary and procedural rules are not used to unjustly hinder the legal interests of SRLs. Additionally, where an SRL commits a minor mistake that is easily rectified, they should not be unjustly penalized. Where an SRL may not be fluent in speaking or understanding the English language, it is important not to let this fact, or opposing counsel’s use of it, penalize the litigant: “fairness requires more” (para 156 per Lauwers, J.A). Moreover, judges should make sure that clarification is provided where legally complex topics present themselves, and refrain from being led by opposing counsel’s arguments.
While there is not – and perhaps never will be – an exhaustive list of what “active courtroom management” looks like, there is definitely a growing body of case law. Based on the CJC Principles, the bottom line is that judges should engage in active courtroom management to the extent that it allows an SRL to meaningfully and fully present their case.
Cases that distinguish Pintea
One prominent theme in the case law is the issue of whether procedural or evidentiary rules are used to unjustly hinder the legal interests of SRLs. This very issue was considered by the Ontario Assessment Review Board in a 2020 proceeding. In holding that the Assessment Review Board did not unjustly hinder the legal interests of an SRL, the Board stated that SRLs have a responsibility to seek procedural assistance prior to their court appearance if they are unclear about their procedural options. It was held to be inappropriate for an SRL to wait until the day of their hearing to seek such help.
While judges have a duty to guide SRLs during their court proceeding, there is also an expectation that SRLs will take appropriate measures to familiarize themselves with the relevant court rules and procedures for their case.
Further limitations on Pintea
The 2018 NSRLP report identified two court-developed limitations on the use of Pintea:
- judicial assistance under Pintea may be “forfeit” for previous bad behaviour
- judicial assistance may be withheld from “sophisticated” SRLs.
Since 2018, we have noticed that certain courts have continued to develop these limitations. Some courts have suggested that there is a connection between an SRL’s previous court experiences and what are subsequent reasonable expectations of them. Is it fair to assume that an SRL who has appeared in court a few times prior is now more competent as a result?
Courts have continued to reference an SRL’s educational or intelligence level in a further line of reasoning which suggests that an SRL’s educational background in an area unrelated to law is somehow a measure of their competency in court procedures and legal processes.
The concern with these limitations is that they restrict the application of Pintea and the CJC principles in a way not envisaged by the Supreme Court, and inconsistent with the spirit of both. Courts must take care to ensure there is a factual and legally supported basis for arriving at their decisions about courtroom management, and those decisions should not be the result of subjective or prejudicial biases towards SRLs.
In our review of cases since the Fall of 2018, we have identified two additional court-developed limitations:
- The CJC Principles in Pintea do not confer a special status on SRLs, and
- There is no duty on opposing counsel to assist SRLs.
Some courts have likened the use of arguments advanced by SRLs about Pintea to a “sword” that SRLs use to try to swing a case in their favour. This seems to be an unfair way of penalizing SRLs who are sufficiently well-prepared and knowledgeable that they will refer to Pintea (or perhaps to NSRLP’s summary, available on our website). Instead, in Pintea the Supreme Court seemed to intend to reinforce the ethical obligations that judges owe to SRLs who appear before them. Of course, these obligations or duties have a limit, which is emerging through subsequent case law.
However, what Pintea did make clear was that SRLs could not be treated as if they are formally “the same as” legal counsel. This was clear from both the arguments and questions in the courtroom, and in the final endorsement of the CJC Principles. To now characterise this as “special status” seems like a dog-whistle to “special interest groups” being given “unfair advantage.” The expression “special status” is very similar to the language used in political debates regarding the extension of “levelling treatment” to marginalized groups.
A further line of judicial reasoning has clarified that Pintea does not create a parallel duty on opposing counsel to assist SRLs. The only constraints on their behaviour lie in their rules of professional conduct. In other words, the duty that judges or hearing officers have to assist SRLs is not held by other legal actors in the courtroom.
The “two-way street”
There is no doubt that a fine line exists between balancing the enforcement of rules and appropriate costs when an SRL is acting contrary to court procedures, and the duty to ensure that an SRL has a fair trial and can meaningfully present their case. Since Pintea, courts have turned their attention toward how we can strike a balance between an SRL’s duty to meaningfully prepare their argument, and a judge’s duty to assist an SRL. This has been described as a “two-way street” and some judicial reasoning reflects this.
Some cases have listed specific behaviours that, if exhibited by an SRL, would indicate a lack of preparedness that negates the court’s obligation to assist. Some examples of this type of behaviour include missing the majority of filing deadlines, failure to respond to requests for further documentation, and a failure to procure necessary information despite being granted multiple extensions of time. Additionally, where an SRL is disrespectful, abusive, or fails to take reasonable efforts to prepare their case, judges have no obligation to assist the SRL. Again, this is not an exhaustive list, but it will hopefully serve as a starting point for courts in future cases to further clarify the fine line that delineates the “two-way street.”
Where do we stand now?
In theory, the Pintea decision promotes access to justice, fairness, and equality for all in the courtroom. Some of the case law to date has been useful in clarifying this in practice. Other decisions since 2017 are imposing limitations that raise our concern. Some of this case law appears to be developing a highly subjective standard for evaluating an SRL’s “best effort,” especially with reference to their prior experience and education. Although it is important for an SRL to take reasonable measures in familiarizing themselves with legal procedures, rules, and practices relevant to their case, this “reasonable” expectation should not be a product of a judge’s personal feelings about managing SRLs in their court. Applying a highly subjective standard when assessing an SRL’s “best effort” arguably contradicts and undermines a judge’s duty to assist. A more objective and consistent standard when assessing the “reasonable” expectation held towards an SRL’s preparedness would be welcomed by both A2J advocates and SRLs themselves. And certainly simply referring to Pintea (something we have heard from SRLs) should not be seen as evidence of seeking an “unfair advantage”.
As a consequence of COVID-19, multiple and often changing adjustments to court procedures (which even many lawyers admit they find hard to follow and stay abreast of) raise even more procedural complexities and potential difficulties for SRLs. We hope that judges will take extra care to understand their duties under the CJC Principles to further ensure that SRLs are given appropriate judicial guidance and support.