Dewing v Kostiuk et al, 2017 MBCA 22

The number of self-represented litigants (“SRLs”) is on the rise across the country.  The National Self-Represented Litigants Project: Identifying and Meeting the Needs of Self-­Represented Litigants by Dr Julie Macfarlane published in 2013 indicated that SRLs already outnumber represented litigants in Ontario civil claims.  SRLs represented 21% of all civil litigants in BC, and 19% in Alberta¹ and all indications are the numbers would have increased since 2013.  The influx of SRLs has put pressure on courts to ease their rules to accommodate SRL’s lack of understanding of court procedure.  In the recent case of Pintea v. Johns [2017] 1 SCR 470 (“Pineta”)², the Supreme Court of Canada endorsed the Statement of Principles on Self-represented Litigants and Accused Persons established by the Canadian Judicial Council (the “Canadian Judicial Council Principles”)³.

While Pineta endorsed the Canadian Judicial Council Principles, the case itself did not provide much help in determining exactly how far courts should go in applying them.  As such, other cases will need to serve as a guide.  The recent Manitoba Court of Appeal case of Dewing v Kostiuk et al, 2017 MBCA 22 (“Dewing”) also used the Canadian Judicial Council’s Principles to help determine how far the court should go to accommodate a SRL, and where the court will stop⁴.  As the Manitoba Court of Appeal followed what are now national guidelines, Dewing will help lawyers across the country understand where courts will draw the line when assisting SRLs.

The Plaintiff’s claim

In Dewing, the Plaintiff was a SRL who alleged she was sexually assaulted when she was four years old by her twelve year old cousin.  Her Statement of Claim sought damages flowing from the abuse and the Plaintiff’s inability to cope with the consequences of it.  She claimed pecuniary and non-pecuniary damages of over $3.6 million.  She claimed against both her cousin and her parents.  All three defendants were served by way of substitutional service and the Plaintiff attempted to obtain default judgment. The motions judge would not grant default judgment due to a concern over the substantial damages being claimed and instead required that the matter be set down for a hearing for the Plaintiff to prove her case⁵.

Prior to the hearing, the hearing judge outlined the issues to be dealt with at the hearing.  This included a discussion of the distinction between general damages for pain and suffering and special damages related to pecuniary loss.  The hearing itself consisted of the hearing judge asking questions to the Plaintiff while she was under oath⁶.

The hearing judge took as fact that the Plaintiff’s cousin sexually assaulted the Plaintiff when she was four or five years old.  As such, the hearing judge granted judgment against the Plaintiff’s cousin. The hearing judge did not give judgment against the Plaintiff’s parents as there were no facts pleaded in the claim or raised at the hearing which disclosed a cause of action against them⁷.  The hearing judge stated that the Plaintiff had to meet the same standard of proof that she would need to meet had she been represented by counsel⁸.

The Plaintiff claimed substantial damages for loss of income resulting from the incident.  The Plaintiff testified that she was currently enrolled in university with aspirations to go to law school but that she had difficulty completing educational programs because of concentration and memory problems due to the trauma.  The hearing judge was satisfied that the Plaintiff had suffered from significant mental health issues which likely affected her ability to complete her education and become gainfully employed.  However, there was no basis on the evidence by which to quantify the loss to the extent the Plaintiff claimed.  There was no evidence of what the Plaintiff had been able to earn or what she should have been able to earn.  The hearing judge concluded that, while the Plaintiff may have been able to present her evidence in a more cogent fashion had she been assisted by counsel, she was not satisfied that she could make an award of damages as claimed on the basis of the evidence presented by the Plaintiff with respect to her lost income⁹.

The hearing judge did determine that the Plaintiff had met the burden for non-pecuniary damages and awarded $100,000.00 based on the case law¹⁰.

The Plaintiff’s Appeal

The Plaintiff appealed the decision to the Manitoba Court of Appeal, alleging that the hearing judge should have done more to accommodate her as a SRL.  The Plaintiff claimed that she has a mental disability, specifically, Complex Post Traumatic Stress Disorder, caused by the sexual assaults, and the hearing judge failed to accommodate that disability by not allowing her to present her evidence in a manner consistent with her condition.  She argued that she was denied her rights under Section 15 of the Canadian Charter of Rights and Freedoms.  She sought a rehearing before the hearing judge to present her case over a series of days to accommodate her condition¹¹.

The Manitoba Court of Appeal confirmed that the hearing judge’s conduct of the proceedings, particularly the extent to which she provided assistance to the Plaintiff, was a discretionary decision¹². The Court of Appeal stated that with the large number of SRLs, the role of the court has changed and provided the following statements on the duty of the presiding judge:

17. … A judge in a civil proceeding has the obligation to ensure that the hearing over which he or she is presiding is fair to all parties whether represented or not.  Where a party is self-represented, the judge has the duty to ensure that the SRL has the opportunity to meaningfully participate in the hearing and has a reasonable opportunity to present his or her case.”

18      This Court has recognized that fairness and balance are the touchstones to enable justice to be done for all parties (see A. (J.M.) v. Winnipeg Child & Family Services, 2004 MBCA 184, 190 Man. R. (2d) 298 (Man. C.A.) (JA No 1); and Manitoba (Director of Child & Family Services) v. A. (J.), 2006 MBCA 44, 205 Man. R. (2d) 50 (Man. C.A.) (JA No 2)). In JA No 2, Hamilton JA reiterated the overriding principles (at paras 20, 32):

The foregoing quotes speak to the obligation of a judge to permit an unrepresented party to present his or her case. This often requires some assistance and accommodation, provided the rights of the other party are not prejudiced.

As already noted, the trial judge cannot become the advocate for the unrepresented litigant, nor can the judge provide legal advice. However, the judge’s challenge is to take pains to ensure that a party’s lack of legal training does not unduly prejudice his or her ability to participate meaningfully in the proceeding.

19. A fair opportunity to present a case to the best of his or her ability does not mean that the SRL is to be assisted to present the best possible case.¹³

In evaluating the conduct of the hearing judge the Court of Appeal indicated that the hearing judge should have provided the Plaintiff with a more expansive explanation of what would have been expected at the hearing.  The hearing judge did indicate prior to the hearing that the issue of damages would be an issue, however a more expansive explanation would have been beneficial. The Court of Appeal stressed that SRLs should be informed of the nature of proceedings, the issues that will be raised and the evidence that will need to be called at the earliest opportunity¹⁴.

Despite this shortcoming, the Court of Appeal found no error in how the hearing judge determined the case.  They noted that the Plaintiff did not request to the hearing judge that the proceeding be dealt with over a series of days to accommodate her condition.  The Plaintiff raised this for the first time during the appeal. The Court of Appeal indicated that if the Plaintiff had requested accommodation at the hearing and the hearing judge refused to accommodate her, it would have been a different issue¹⁵.

The Court of Appeal did not find the hearing judge’s decision that the evidence did not support the Plaintiff’s loss of income claim was a palpable and overriding error. The Court of Appeal said that the outcome of the hearing may have been different if the Plaintiff retained counsel, which was unfortunate.  However, the Plaintiff clearly understood the difference between pecuniary and non-pecuniary damages as they were separated in the pleadings.  The hearing judge also did not misdirect herself in determining that there was not sufficient evidence on a balance of probabilities to prove the damages sought¹⁶.

The Court of Appeal found no error in the determination of the $100,000.00 non-pecuniary damages award.  The Plaintiff argued that had the hearing been conducted over a period of days she would have been better able to communicate her symptoms to the hearing judge, but the Court of Appeal reiterated that how the hearing judge choses to conduct the proceeding is discretionary, and they saw no basis to overturn the hearing judge’s decision.  The Court of Appeal also said the hearing judge was correct in dismissing the claim against the Plaintiff’s parents for lack of evidence¹⁷.

The applicable Canadian Judicial Council Principles

Dewing demonstrates how the Courts will apply some of the Canadian Judicial Council’s Principles:

“Judges and court administrators should do whatever is possible to provide a fair and impartial process and prevent an unfair disadvantage to self-represented persons.”¹⁸

In Dewing, the hearing judge allowed the Plaintiff to present her evidence by having the hearing judge ask her questions.  The Court of Appeal indicated that, had the Plaintiff requested it, the hearing could have taken place over a series of days. However, the Court made clear that this obligation does not mean that Courts need to help SRLs present their “best possible case”.  Failing to obtain what an SRL may have been able to obtain with counsel is not an unfair disadvantage on its own.

“Self-represented persons should not be denied relief on the basis of a minor or easily rectified deficiency in their case.”¹⁹ 

The fact that the Plaintiff’s only evidence was her testimony, did not prevent her from obtaining judgment of $100,000.00 for general damages.  However, failing to provide evidence to support her pecuniary damage claim was a basis for denying the SRL the relief sought.

“When one or both parties are proceeding without 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:

(a) explain the process;

(b) inquire whether both parties understand the process and the procedure;

(c) make referrals to agencies able to assist the litigant in the preparation of the case;

(d) provide information about the law and evidentiary requirements;

(e) modify the traditional order of taking evidence; and

(f) question witnesses.”²⁰

In Dewing the hearing judge modified the traditional order of taking evidence and questioned the Plaintiff directly.  The Manitoba Court of Appeal stated that the SRL should have received a more detailed explanation of the process well before the hearing to ensure that the SRL was aware of the evidentiary requirements.  What steps are taken remain a discretionary decision to be made by the hearing judge. The hearing judge will not be expected to anticipate every possible disadvantage of the SRL, and the SRL will not be granted a second hearing even if the hearing judge could have done more to accommodate them or they could have presented more and better evidence with the assistance of counsel.

Conclusion

Dewing demonstrates that, while courts will take active steps to help SRLs, but there are limits to what they will do.  They are willing to relax the normal rules of court and ensure that the court process is thoroughly explained to the SRL, but they will not relax the burden of proof that the SRL must meet to prove their case.  The Plaintiff in Dewing was able to obtain a substantial judgment based upon her testimony alone.  So counsel defending SRL claims cannot assume that the SRL’s lack of supporting documents will prevent them from meeting their burden of proof.  Despite this, the court made clear that the Plaintiff may have been able to obtain a larger judgment if she had retained counsel.  While counsel should expect that courts will bend the rules of court to help accommodate SRLs, courts will not be expected to do the same work that the SRL’s counsel would have done.

1. Dr Julie Macfarlane The National Self-Represented Litigants Project: Identifying and Meeting the Needs of Self-­Represented Litigants May 2013 at p. 34. https://www.lsuc.on.ca/uploadedFiles/For_the_Public/About_the_Law_Society/Convocation_Decisions/2014/Self-represented_project.pdf
2. Pintea v. Johns [2017] 1 SCR 470 at para 4.
3. Canadian Judicial Council, Statement of Principles on Self-represented Litigants and Accused Persons September 2006 https://www.cjc-ccm.gc.ca/cmslib/genera/news_pub_other_PrinciplesStatement_2006_en.pdf
4. Dewing v Kostiuk et al, 2017 MBCA 22 at para 20
5. Ibid at paras 2-5.
6. Ibid at paras 6-8.
7. Ibid at para 9.
8. Ibid at para 10.
9. Ibid at para 11.
10. Ibid at para 12.
11. Ibid at paras 12-16.
12. Ibid at paras 14-15,
13. Ibid at paras 17-19.
14. Ibid at paras 24-25.
15. Ibid at paras 27-31.
16. Ibid at para 26.
17. Ibid at paras 32-37.
18. Supra note 2 at page 4, Principle 1.
19. Ibid at page 4, principle 2.
20. Ibid at page 4, principle 4.