Canada: David V Goliath: The Court Of Appeal On Litigation With Self-Represented Parties

Litigating against self-represented parties presents unique challenges; chief among them is our obligation to balance the need to advocate with zeal on behalf of our clients with ensuring that we treat our self-represented opponents fairly. As demonstrated in a recent decision from the Court of Appeal for Ontario, there can be dire consequences when we fail to treat self-represented parties with fairness and respect.

Writing for a unanimous bench, Mister Justice Peter Lauwers ordered a new trial after finding that both counsel and the trial judge failed to ensure that the trial, prosecuted by a self-represented litigant, was conducted in a fair manner. His Honour found several instances of unfairness related to both the mechanics of trial and evidentiary issues. He also made explicit pronouncements regarding the obligations of the bench and bar toward self-represented litigants.

This article considers two of the four areas of unfairness referred to in His Honour's decision: the joint trial brief and the treatment of expert evidence. This article will also review the court's discussion of the role of the trial judge and counsel in relation to a self-represented litigant.

The Joint Trial Brief

The plaintiff, Yolanda Girao, is legally-untrained. She conducted a 20-day personal injury jury trial, through a Spanish interpreter, that involved many witnesses and complex medical evidence.

On the eve of trial, two sets of defence counsel delivered to the plaintiff a 16-volume "Joint Trial Brief," which became the basis of the trial record. There was no explanation for the late delivery of the brief, which was prepared with no input from Ms. Girao. Defence counsel also selectively redacted the excerpts of evidence that were favourable to Ms. Girao. As the court held, this brief was presented to the trial judge and the jury in an unfair way that is inconsistent with the court's trial practice directions.

The governing principles of civil practice require the trial judge to supervise the trial record to ensure completeness and accuracy. Justice Lauwers asserted that the principle of judicial oversight applies even more forcefully when one party is self-represented, the opposing lawyer prepares the brief, and the brief goes in the jury room. His Honour found that if the trial judge had taken counsel and Ms. Girao through the following six questions, which arise in every case, some of the problems identified in this case could have been avoided:

1. Are the documents, if they are not originals, admitted to be true copies of the originals? Are they admissible without proof of the original documents?
2. Is it to be taken that all correspondence and other documents in the document book are admitted to have been prepared, sent, and received on or about the dates set out in the documents, unless otherwise shown in evidence at the trial?
3. Is the content of a document admitted for the truth of its contents, or must the truth of the contents be separately established in the evidence at trial?
4. Are the parties able to introduce into evidence additional documents not mentioned in the document book?
5. Are there any documents in the joint book that a party wishes to treat as exceptions to the general agreement on the treatment of the documents in the document book?
6. Does any party object to a document in the document book, if it has not been prepared jointly?

His Honour found that counsel all too often do not turn their minds to these questions, and this habit must change as a matter of ordinary civil practice. The answers to the questions must be expressly addressed on the record or by written agreement. Instead, the trial judge's approach was to simply accept all volumes of the brief.

The Use of Expert Evidence

Both parties sought to introduce evidence by relying on the exceptions to the hearsay rule in section 35 and 52 of the Ontario Evidence Act.[1] Section 35 relates to business records made of any act, transaction, occurrence, or event. The evidence of the act will be accepted if the business record documenting it was made in the ordinary course of business, and if it was in the ordinary course of business to make such a record at the time of the act. Section 35 is not a proper basis to admit opinion evidence.[2] Section 52 relates to medical records. The court may admit a medical report for the truth of its contents without the need to call the authoring practitioner. However, the trial judge is obligated to require the author to testify and be available for cross-examination if one of the parties requests it. The court focused on two issues:

1. the trial judge's refusal to allow the plaintiff's expert to testify beyond a limited issue; and
2. the defence's use of participant or non-party expert evidence.

The plaintiff attended a physiotherapy clinic in connection with her first-party claim.[3] The expert evidence most favourable to her case was contained in a covering report by the clinic's director, Dr. Becker, which summarized several reports from team members who examined the plaintiff. Ms. Girao called Dr. Becker to give evidence on his report. However, the trial judge restricted Dr. Becker's testimony such that he could not provide evidence about the substance of his report. With respect to the instructions to the jury, Justice Lauwers found that the trial judge "effectively expunged Dr. Becker's limited evidence, telling the jury that it was not in issue." The appeal court found no reasonable legal basis to exclude Dr. Becker's evidence. The court found that it was an error to exclude the report and to prohibit Dr. Becker from testifying about its substance. Further, the appeal court held that such failure presented a skewed picture to the jury and was grossly unfair to the plaintiff.

For their part, the defence introduced a letter of opinion authored by Dr. Sanchez, a physician who treated Ms. Girao years prior to the accident. The defence included Dr. Sanchez's report in the joint document brief. Ms. Girao objected to the use of this report at trial, but the questioning on his report continued. Justice Lauwers interpreted Ms. Girao's objection, as a layperson, to the use of Dr. Sanchez's report for the truth of its contents without the defence producing Dr. Sanchez as a witness as it should have in accordance with s. 52 of the Act.

The court held that s. 35 of the Evidence Act is not the proper way to admit medical opinion for the truth of its contents; rather, s. 52 applies. Once the plaintiff objected, which she did, the trial judge was required to refuse to admit Dr. Sanchez's report for the truth of its contents unless he was presented for cross-examination. The court found that Dr. Sanchez's evidence "loomed large" in the cross-examination of the plaintiff, other medical witnesses, and in argument. However, the hearsay content of Dr. Sanchez's opinion was not admissible for any purpose. This error of law was procedurally and substantively unfair to Ms. Girao. The evidence formed a "substantial plank in the defence position, and was amplified in the jury instructions."

The Role of the Trial Judge and Counsel

The court found that Ms. Girao was entitled to, but did not receive, the active assistance of the trial judge to ensure a fair proceeding. Specifically, the court referred to the Statement of Principles on Self-Represented Litigants and Accused Persons,[4] endorsed by the Supreme Court of Canada in 2017,[5] and specifically to the section promoting equal justice. A trial judge has special duties to self-represented litigants, including informing them of courtroom procedure, rules of evidence, and accommodating their unfamiliarity with the trial process. The court's impression of the trial record, in this case, is that the trial judge "allowed himself to be led by trial counsel's arguments." Fairness required more.

As a self-represented litigant, the plaintiff was also entitled to, but did not get, basic fairness from trial defence counsel. While counsel's obligations to self-represented litigants are limited under the Rules of Professional Conduct, lawyers do have more general ethical obligations as advocates and officers of the court. Lawyers are obliged to bring to the court's attention any binding authority they consider to be directly on point that has not been mentioned by an opponent. In this case, the defence advanced problematic evidentiary positions on legally complex topics, with which they ought to have assisted the trial judge.

A Stark Warning

The decision has been referred to as a "landmark" for self-represented litigants and lauded by groups such as the National Self-Represented Litigants Project.⁶ At the very least, it is a clear reminder of the legal profession's duties to the court and self-represented litigants, and it is a warning of the penalties we may face if we fail to discharge them.

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