Jan 27, 2020

Self-Represented Litigants: Is a Judge Obliged to Assist?

Gionet v. Pingue, 2018 ONCA 1040 (CanLII)

There has been a dramatic increase in self-representation by litigants who appear in the Family Courts across Canada. Many show up well-armed with gathered information, having tried to inform themselves of the law relevant to their cases, and of the court procedures to be followed.

However, an equally significant portion of self-represented litigants simply do not (or cannot) prepare themselves adequately. They may appear in court expecting to “wing it” or hoping that the judge will help them out “on the fly.

Unfortunately, this is a misguided presumption: As a broad legal principle all judges are duty-bound to remain impartial as between the litigants that appear before them. So a judge cannot give the appearance of taking sides or actively advocating on one party’s behalf.

With that said, judges are nonetheless under a duty to assist self-represented litigants – at least to some extent. The scope of this obligation was explored by the Ontario Court of Appeal recently in a case called Morwald-Benevides v. Benevides, where the Court wrote:

It is no longer sufficient for a judge to simply swear a party in and then leave it to the party to explain the case, letting the party flounder and then subside into unhelpful silence. As this court has noted, “it is well-accepted that trial judges have special duties to self-represented litigants, in terms of acquainting them with courtroom procedure and the rules of evidence” [and] … “In ensuring that a self-represented litigant has a fair trial, the trial judge must treat the litigant fairly and attempt to accommodate their unfamiliarity with the trial process, in order to permit them to present their case”…

Next, the judge has a duty to help a litigant present his or her evidence as well. As the Court explained:

A trial judge requires the necessary evidence on which to base a sound decision and getting the evidence can be difficult when a party is unrepresented, is unfamiliar with the process and the venue, or is tongue-tied for other reasons. Recognizing this reality, a common practice has developed in which trial judges walk a self-represented party through the essential documents, giving the party every opportunity to explain under oath, line by line, his or her pleading, financial statement, and any pertinent documents, and doing the same with respect to the other party’s pleading, financial statement, and pertinent documents, requesting the party’s responding position and evidence. Once the evidence of a party has been received, then the other party may cross-examine.

Finally, whenever helping a self-represented litigant the judge must be careful to maintain an attitude of impartiality:

This active approach on the trial judge’s part can only work if the judge explains the purpose and nature of the exercise beforehand, and maintains a calm and impartial temperament throughout. The trial judge should not cross-examine a party. Doing so would cross the line into the adversarial representation of a party, which would give rise to possible bias allegations.

For the full text of the decision and related rulings, see:

Morwald-Benevides v. Benevides, 2019 ONCA 1023 (CanLII) at para. 34

Dujardin v. Dujardin, 2018 ONCA 597, 423 D.L.R. (4th) 731, at para. 37

Gionet v. Pingue, 2018 ONCA 1040, 22 R.F.L. (8th) 55, at para. 30

[This post by Russell Alexander first appeared on FamilyLLB.com on January 27, 2020]