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Balancing rights of self-reps and neutrality of the court

|Written By Aidan Macnab
Balancing rights of self-reps and neutrality of the court
Nicholas Bala, professor of law at Queen’s University, says balancing rights of self-represented litigants is 'one of the hardest things that we now expect judges to do.'

An Ontario Superior Court has ruled against a self-represented litigant in a case lawyers say demonstrates the balance between accommodating SRLs and demanding too much from judges.

In Beraskow v. TD Insurance, Alex Beraskow lost his Small Claims Court action against TD Insurance and its contractor, which resulted out of repair work done that Beraskow said was shoddy. He appealed to the Divisional Court of the Superior Court of Justice, arguing that the trial judge fell short on her duties to him as an SRL.

“This is one of the hardest things that we now expect judges to do,” says Nicholas Bala, professor of law at Queen’s University.

Bala says the challenge is increasing access to justice by ensuring the SRL can navigate the process and making sure the judge remains neutral, not becoming counsel to one of the parties.

“It is a difficult balance,” he says.

Beraskow’s basement flooded after a pipe burst, damaging his cork flooring. TD Insurance, Beraskow’s insurer, contracted ServiceMaster to fix the flooring, which it sub-contracted to a flooring company, and the work was completed in March 2014.

The trial judge, Deputy Judge Rosalind Conway, dismissed Beraskow’s claim against TD Insurance and ServiceMaster and awarded them $5,606.76 and $6.320.96, respectively, in January 2018. Beraskow asked the Superior Court to set aside Conway’s order and grant him $16,000, payable by TD Insurance and ServiceMaster, plus interest and costs of $2,400.

Beraskow’s position was that the trial judge erred in failing to meet her responsibilities to him as a self-represented litigant by personally viewing the property and flooring in question, in failing to permit him to file additional evidence, in finding ServiceMaster acted in good faith during payment of his claim and finding that the claim concerning the vapour barrier was statute barred.

In his factum, Beraskow referenced the statement of principles on self-represented litigants and accused persons, devised by the Canadian Judicial Council. The Supreme Court endorsed the principles in Pintea v. Johns in 2017. The principles include requiring judges make SRLs aware of procedural options, explain relevant law and provide information to assist them in understanding and asserting their rights. In turn, SRLs are expected to familiarize themselves with relevant legal practices and procedures, prepare their case, be respectful and not abuse the process.

Justice Michelle O’Bonsawin found the trial judge had properly assisted the plaintiff. “It is important to note that the role of the trial judge is not to act as counsel for the self-represented litigant,” she wrote in the decision.

ServiceMaster argued that, as a professional engineer, the plaintiff’s sophistication and court experience should be considered. The plaintiff had been involved in five other lawsuits in Small Claims Courts related to his house.

The trial judge had travelled to Beraskow’s house and looked at the cork flooring herself, which she was entitled to do under Rule 17.03 of the Rules of Small Claims Court and Rule 52.05 of the Rules of Civil Procedure, and O’Bonsawin found there was no error in doing so.

Bersakow was ordered to pay $9,588 to ServiceMaster and $8,546 to TD Insurance.

Julie Macfarlane, professor of law at the University of Windsor and project director of the National Self-Represented Litigants Project, says that everyone knew that, in practice, applying Pintea was going to be “extraordinarily difficult.”

Beraskow v. TD Insurance is an example, however, where the judge could have done more, she says. Her organization, the NSRLP, released a report in October that analyzed the case law since Pintea. Macfarlane says there is a trend in assuming that, when an SLR appears sophisticated and well educated, the responsibility on the judge to explain the process is seen as reduced or minimized.

“I think that there was more that the judge should have done here. I think there's obvious signs that the self-represented litigant did not understand and that that prejudiced what they did. And I think that there was more that a judge could have done in this case to discharge their obligations under Pintea,” she says.

The NSRLP’s report found a number of decisions where SRLs are “exploiting their position as confused, uneducated and unaware of the complexities of the legal process to ‘game’ or ‘abuse’ the legal system,” but it is “far from clear” whether SLR misbehaviour is intentional. But regardless of whether the litigant is sophisticated or feigning ignorance to act inappropriately, the report states that Pintea does not involve “trade-off obligations” where an SLR forfeits their right to judicial assistance because of inappropriate conduct.

“Where there are easily rectifiable deficiencies in cases SRLs should be afforded judicial assistance and should not be denied relief,” the report states.

A better guide with regard to SRLs is the Ontario Court of Appeal case Moore v. Apollo Health & Beauty Care from 2017, which showed that however sophisticated or intelligent a person is, anyone would be intimidated and confused by  the legal process, says Macfarlane.

“The default position needs to be they're going to need explanation and it's not that that sort of responsibility drops away because somebody's got an engineering degree,” she says.

When it comes to a judge’s duty to assist an SRL, Bala says, there may be a different feeling toward a mother in a family law case or a person charged with a criminal offence and a person in a $16,000 construction lawsuit who has undertaken five other similar lawsuits. Beraskow also rejected a settlement.

“They do have an obligation, particularly in the context of helping people in criminal cases and family cases,” Bala says. “But I think people arguing over construction work are probably going to have to have a little more responsibility on their own.”

David Contant, a partner at Nelligan O'Brien Payne LLP, acted for Beraskow and told Legal Feeds he couldn't  comment before deadline.

Counsel for ServiceMaster could not comment before deadline.

  • Imbalance of Judicial Service

    Velvet Martin
    ‪Just imagine how much more difficult it is for a SRL without either legal background or means to attain professional counsel! 😡 Access to Justice, yeah right!)

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