Dealing with self-represented litigants (SRLs) can be challenging and time consuming, but it is incumbent upon lawyers to maintain a high standard of professionalism and to adjust their behaviour accordingly, the Ontario Superior Court of Justice said in a recent ruling.
This includes the timely and clear communication of legal concepts, avoiding unnecessary legal jargon, and treating SRLs with the same respect and courtesy afforded to other lawyers, the court said.
Background
Justice Ranjan K. Agarwal dismissed a motion brought by M.D., a self-represented litigant, to strike the statement of defence filed by her former employer, Oakwood Health Network.
M.D.’s motion stemmed from a perceived lack of responsiveness from Oakwood’s legal counsel, which she argued amounted to an abuse of process. The central issue revolved around her attempts to engage in the discovery process following her wrongful dismissal lawsuit against Oakwood, a claim she initiated in December 2023 and amended in January 2024.
When Oakwood’s lawyer failed to respond promptly to her proposed discovery plan and subsequent communications, M.D. took matters into her own hands, leading to the filing of the motion, the ruling said.
Problematic, but not an abuse of process
Justice Agarwal, while acknowledging that the lawyer’s lack of communication was problematic, ultimately found that it did not rise to the level of an abuse of process. He emphasized that Rule 25.11 of the Rules of Civil Procedure, under which M.D. sought relief, is designed to strike out pleadings only when the document itself is abusive, not as a sanction for a lawyer’s conduct during the proceedings.
“The rule isn’t used to sanction a lawyer’s conduct during the proceeding. It’s to be used where the pleading itself is abusive,” wrote Justice Agarwal in his ruling.
The case paints an interesting picture of the difficulties faced by self-represented individuals like M.D., who not only have to contend with the legal complexities of their cases but also the often daunting task of dealing with opposing counsel. M.D.’s unfamiliarity with legal terminology, such as the concept of a claim being “statute-barred,” further complicated her interactions with the lawyer, who initially responded with legal jargon that only served to heighten her confusion.
No costs awarded
Despite dismissing M.D.’s motion, Justice Agarwal denied Oakwood’s request for costs, underscoring that the motion could have been avoided had the lawyer communicated more effectively with M.D.. The judge noted that Oakwood’s delay in responding to her discovery plan and its subsequent motion to strike her claim contributed significantly to the escalation of the dispute.
“It’s unfair that (M.D.’s) good faith efforts to prosecute the action were stalled for over two months with little or no explanation,” Justice Agarwal said, pointing out that Oakwood could have moved to strike M.D.’s claim immediately after the pleadings closed, thereby preventing the unnecessary delay.
The ruling also touched upon an additional procedural issue raised by M.D. regarding Oakwood’s representation. She argued that a formal notice of change of lawyer should have been served when an associate took over communication on the file. Justice Agarwal dismissed this concern, clarifying that no such notice was required in this instance as both lawyers were from the same firm.
Call for legal professionals to help SRLs
The ruling concluded with Justice Agarwal urging legal professionals to assist SRLs in understanding the legal system, provided such assistance does not conflict with their obligations to their own clients.
“Lawyers enjoy a privileged position in our legal systems because of their education, training, and expertise,” said Justice Agarawl. “But that power comes with a corresponding responsibility to communicate professionally and promptly with all justice sector participants, including SRLs. Lawyers should afford the same courtesy to SRL as to each other.”
He cited resources available to SRLs, such as the Canadian Judicial Council’s informational handbook and the Pro Bono Law Ontario’s free legal advice hotline, as tools that could help bridge the knowledge gap for those navigating the courts without legal representation.
For more information, see Dore v 2647846 Ontario Inc.., 2024 ONSC 4702 (CanLII).
