Law Practice Essentials

The courts have been taking a more active role when one or both parties are self-represented, to ensure fairness is achieved. In 2006, the Canadian Judicial Council adopted a Statement of Principles on Self-represented Litigants and Accused Persons (the Principles), to ensure that SRP’s are treated fairly in the administration of justice. The following are some of the principles the courts will follow: 

• Judges and court administrators should do whatever is possible to provide a fair and impartial process and prevent an unfair disadvantage to SRP’s.
  
  
• SRP’s should not be denied relief on the basis of a minor or easily rectified deficiency in their case.
  
  
• Where appropriate, a judge should consider engaging in case management activities to protect the rights and interests of SRP’s. Case management should begin as early in the court process as possible. 
  
  
• When one or both parties are proceeding without legal representation, non-prejudicial and engaged case and courtroom management may be needed to protect the litigants’ equal right to be heard. Depending on the circumstances and nature of the case, the presiding judge may: 
• explain the process; 
• inquire whether both parties understand the process and the procedure; 
• make referrals to agencies able to assist the litigant in the preparation of the case; 
• provide information about the law and evidentiary requirements; 
• modify the traditional order of taking evidence; 
• question witnesses.
  
  
• Judges have a responsibility to inquire whether SRP’s are aware of their procedural options, and to direct them to available information if they are not. Depending on the circumstances and nature of the case, judges may explain the relevant law in the case and its implications, before the SRP makes critical choices. 
  
  
• In appropriate circumstances, judges should consider providing SRP’s with information to assist them in understanding and asserting their rights, or to raise arguments before the court. 
  
  
• Judges should ensure that procedural and evidentiary rules are not used to unjustly hinder the legal interests of SRPs.   

You have a duty to treat the court in a way that promotes the SRPs’ right to a fair hearing. The Principles confirm that lawyers are expected to be respectful of SRP’s and to adjust their behaviour accordingly when dealing with SRP’s, in accordance with their professional ethical obligations. The following tips will help you to comply with your ethical duties: 

• When possible, avoid the use of complex legal language. 
  
  
• Provide procedural information to the SRP when necessary to ensure the matter proceeds efficiently (but be careful not to provide legal advice). This includes confirming the date, time, and courtroom location of upcoming court appearances, any applicable practice note, or other procedural guideline material, and any other information that is required under court rules or practice. Some lawyers take the added step of summarizing this information in a letter to the SRP when pleadings are served, and also provide resources and referrals that the SRP can access for assistance. If the SRP is not prepared, even with the information provided, you have a better chance of convincing the court that the SRP should not be afforded an adjournment or other remedies that are unfavourable to your client and you will be able to defend any allegation that you took advantage of the SRP.
  
  
• Confirm and/or provide a copy of all authorities and case law on which you plan to rely in advance of your court appearance. 
  
  
• Even if you are the respondent, the court will appreciate if you are prepared to introduce the parties, identify the issues, and provide the necessary background of the matter before making submissions. 
  
  
• Ensure you have a copy of the SRP’s pleadings for the court. It is not uncommon for an SRP to come to court without extra copies and the court may not have reviewed or have ready access to the pleadings, especially if the pleadings were filed at the last minute. Being able to provide a copy of the SRP’s pleadings to the court will avoid the risk that the matter is adjourned. 
  
  
• Expect that the court will offer assistance to an SRP and may try to assist the parties to resolve the matter. Sometimes information from the court can reduce the likelihood that a judgment or order will be appealed. 
• Remember that you must disclose all relevant adverse facts and authorities of which you are aware, and which have not been disclosed by the SRP. 
  
  
• Regardless of what the Rules of Court state, expect that you will be responsible for preparing the judgment or order. While you may find this frustrating, it will be more efficient. Come to court with a prepared order, and ensure you provide a copy to the opposing party before your matter is called or, at the very least, when you provide a copy to the court. If there are multiple possible outcomes, you may find it beneficial to bring several versions of an order, particularly if there is urgency in obtaining a copy of the filed order. 
  
  
• Rule 9.4(2)(c) of the Rules of Court permits the court to direct that the other party need not approve the form of judgment or order. If the order can only be drafted after the matter is heard, and Rule 9.4(2)(c) applies, ensure you take detailed notes and, if necessary, order a copy of the clerk’s notes or transcript. When there is no opposing lawyer on the other side, the court is relying on you to ensure the judgment or order accurately reflects the court’s decision. If the SRP is required to consent to the form of order, ask the court to clarify in the presence of the SRP how the draft should be delivered to the SRP and the date by which the SRP must respond. You should prepare and file the order as soon as possible, even if the order was not in your client’s favour. 
  
  
• Remember that the rules for ex parte communications and applications do not change simply because the other side is self-represented (see Rule 5.1-1 and Commentary, and for more information, view Communicating with the Court). You must also provide an SRP with a copy of any correspondence submitted to the court.