What duties do judges have to self-represented litigants?
Updated: May 3, 2020
Individuals who are not represented by a lawyer, either by choice or due to financial constraints, face special challenges navigating the legal system. These litigants also present challenges to lawyers, judges, and other court officials who engage with them. This is particularly true in family law litigation, where an increasing number of parties appear without a lawyer.
A recent decision by the Honourable Madam Justice Kristjanson of the Superior Court of Justice for Ontario provides an example of the challenges faced by judges dealing with self-represented litigants and considers the extent of a judge’s duty to assist self-represented litigants.
In Sae-Bin Im v. BMO Investorline Inc., the self-represented Plaintiff, Sae-Bin Im, filed a Notice of Action on July 24, 2015, in which he brought a claim based on events that occurred in July 2013. However, Mr. Im failed to serve and file a Statement of Claim within 30 days, as required by the Rules of Civil Procedure. Mr. Im sought consent of the defendants to file a statement of claim beyond the thirty-day limit, but this consent was not granted.
Under Rule 14.03(3) of the Rules of Civil Procedure, Mr. Im has the right to make a motion to the court for leave to serve and file a late statement of claim. However, instead of bringing such a motion, Mr. Im decided, based on his own research, that it would be more expeditious to withdraw the claim and to bring an application against the same parties and based on the same cause of action. To that end, Mr. Im brought a motion seeking leave to discontinue the action. The defendants were served with the motion materials but did not participate in the motion.
Justice Kristjanson, hearing the motion, recognized that the course of action taken by Mr. Im would mean that he would be withdrawing an action that was brought within the two-year limitation period set out in the Limitations Act, and would be bringing an Application that would now be outside the two-year limitation period and would thus likely be statute barred. It was clear to the judge that Mr. Im was not aware of this consequence of his actions.
In her decision, Justice Kristjanson discusses whether she has a duty to inform Mr. Im of the implication of the withdrawal of the action, and the limits to the assistance which a judge may provide to a self-represented party:
 None of the defendants have filed materials, and the motion has been brought in writing. This puts the court in a difficult position, given that Mr. Im is self-represented. I have carefully considered my obligations toward the self-represented plaintiff. Judges have a responsibility to ensure that self-represented persons are provided with fair access and equal treatment by the courts, and to facilitate access to justice. There are limits to the assistance which a judge may provide: a judge must always remain neutral and impartial, and balance fairness to all the parties. A judge cannot become an advocate, provide legal advice, advance new arguments for the self-represented litigant or advise on strategy.
 On the other hand, the Canadian Judicial Council’s “Statement of Principles on Self-Represented Litigants and Accused Persons”, which are advisory in nature, state that:
1. Judges have a responsibility to inquire whether self-represented persons 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 self-represented person makes critical choices.
2. In appropriate circumstances, judges should consider providing self-represented persons with information to assist them in understanding and asserting their rights, or to raise arguments before the court.
3. Judges should ensure that procedural and evidentiary rules are not used to unjustly hinder the legal interests of self-represented parties. (emphasis added)
The Principles also state that a judge may “provide information about the law” in appropriate circumstances.
 Mr. Im is about to make a “critical choice”, based on a clear misunderstanding of the law and procedure. In the circumstances, I believe that I have a responsibility as a judge to explain the relevant law and its implications, remaining sensitive to the interests of the respondents.
 The respondents chose not to participate in the motion, as is their right. If Mr. Im brings a motion to extend time for filing of the Statement of Claim, the respondents have all of their rights and may oppose that motion. Failing to advise Mr. Im of the procedural issues and the critical choice, however, would in my view have led him to relinquish a potentially important right based on a misunderstanding of the relevant law and its implications, and procedural choices available to him.
Justice Kristjansen proceeded, in her decision, to inform Mr. Im of the limitations consequences of withdrawing his action and the other remedies available to him in serving and filing a late statement of claim.
This case illustrates the potential pitfalls of pursuing litigation without legal representation. Court procedures and the substantive law are complex. Even experienced lawyers must regularly conduct legal research in order to remain current with the law and to understand their clients' rights. Making decisions in the course of litigation, without adequate legal advice, can severely prejudice a party's case.
On the other hand, courts and lawyers are aware that obtaining legal representation is not financially feasible for many people. It is the duty of legal professionals, as stewards of the legal system, to ensure that self-represented persons are provided with fair access and equal treatment by the courts, and to facilitate access to justice. Madam Justice Kristjansen's decision is one example of the accommodations that judges and lawyers make everyday to comply with this duty.
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Sae-Bin Im v. BMO Investorline Inc., 2017 ONSC 95
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