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Presentation - Limits on Logistical Help. G.S. v. S.B.
In G.S. v. S.B. (Div Court, 2023) the Divisional Court considered whether the appellant had adequate natural justice 'participation' at trial - despite his medical problems, failure to arrange counsel for trial and repeated adjournments. The court granted an order for amicus curiae to assist the father, but did (apparently: see para 21) proceed in the absence of the appellant:[18] In this case, examining all the circumstances, there was no breach of procedural fairness. It is undisputed that procedural fairness includes an opportunity for those affected by the decision to put forward their views and evidence fully and have them considered by the trial judge: Baker v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC), [1999] 2 S.C.R. 817, at para. 22. As further detailed below, the father had this opportunity.
A. The father was allowed extensive time to retain counsel
[19] First, the father was allowed extensive time to retain counsel. The trial was initially scheduled to start in January 2022. At that time, the father advised the court that he had terminated the retainer of his counsel, who was by then his fourth over the course of the proceedings, and required more time to find new counsel. He also stated he could not self-represent due to health issues. The court granted an adjournment of the trial to May 2022, peremptory to the father. At the commencement of the May trial sittings, the father was ill with COVID-19 so the trial could not be called during the first week. The trial then was not reached in the May sittings and was rescheduled to start in August 2022.
[20] When the trial started on August 2, the father was self-represented. He asked that the trial be postponed due to health issues. The trial judge indicated that the trial would proceed. After receiving an unfavourable evidentiary ruling on the third day of trial, the father stated that he was having an atrial fibrillation and went to the hospital. The trial judge granted an adjournment of the trial to the September 2022 sittings to allow the father to attend to his health needs. She declined to grant him a longer adjournment to retain counsel since, by that point, he had already had eight months (since January 2022) to do so. I note, too, that on the first day of trial, when the trial judge asked the father for an opening statement, he replied that he would “have a lawyer write it,” implying that he had a lawyer available to assist him.
[21] The trial was scheduled to resume on September 19, 2022, now nine months from the original start date in January 2022. The mother brought a motion for the appointment of amicus curiae, which was granted. The trial was therefore rescheduled to allow amicus to prepare and restarted on November 29, 2022. The father did not attend, but the amicus reported that she had had extensive communication with him. She also had communicated with a lawyer who had been assisting him. The amicus relayed the father’s request for another adjournment.
[22] In short, the father was given many months to arrange representation by counsel. He failed to do so but had counsel available to assist him. The trial judge also safeguarded trial fairness by taking the exceptional step of appointing amicus to ensure evidence was called for the father and the mother’s evidence was tested. The denial of a further adjournment for the father to retain counsel did not breach trial fairness.
B. The father’s health did not impede a fair trial
[23] Second, the father’s health did not impede a fair trial. After the father attended the hospital in August 2022, the trial judge adjourned the trial. The father had provided a doctor’s report stating that stress from the court case was causing an extreme elevation of his blood pressure. The report suggested that an adjournment would be helpful “to get his blood pressure under better control as well as to organize legal support for himself.”
[24] However, when the trial resumed in September, the father simply sought further adjournments without new medical evidence nor any explanation as to how further delay would assist him in addressing his health. He at no time requested specific medical accommodations other than to submit evidence in writing (which was permitted) or to request an adjournment. As detailed above, he also did not retain counsel to represent him. In these circumstances, it was not a breach of procedural fairness to proceed with the trial.
C. The father was accommodated
[25] Third, the trial judge granted the father extensive accommodations to facilitate his participation in the trial. For example, the trial judge allowed the father to rely on an 876-page document as his evidence in chief rather than testifying. Contrary to a trial management endorsement requiring him to upload affidavit material in advance, the father uploaded this document to Caselines the night before the trial started. He admitted that he purposely withheld the document from the mother until “the last minute” because he felt it would give the mother an unfair advantage to have the information prior to trial.
[26] The trial judge also allowed the father to record the proceedings, subject to an order that he destroy the recordings after the trial. After the father provided an oral opening statement, he asked to provide a new opening statement in writing and the trial judge agreed. The trial judge similarly allowed him to provide written submissions regarding the admissibility of his expert’s evidence. When the father did not attend the mother’s motion for the appointment of amicus, the trial judge deferred it to the next day to give the father an extra opportunity to attend. These are just some of the many steps the trial judge took to accommodate the father and facilitate his participation.
D. The trial judge did not fail to consider important evidence
[27] The record also does not support the father’s submission that, as a result of his non- participation (or otherwise), the trial judge failed to consider important evidence supporting his position. It is trite law that the trial judge is not required to advert to every piece of evidence. This is particularly true when the trial judge is faced with an 876-page document. In any event, the trial judge either expressly or inferentially rejected the probative value of the points the father highlights on appeal.
[28] For example, the father relies heavily on a report from the Office of the Children’s Lawyer (“OCL”) dated June 6, 2018. The OCL never completed its investigation because the mother was going into treatment for her substance use, but the OCL did provide a report of the information gathered to that point. The father highlights the OCL clinician’s comment that the interaction between the mother and J. “appeared stiff.” The trial judge expressly addressed this at para. 34 of her decision, stating that the clinician’s comments about the father’s abusive communications were “far more concerning” than the statements about the mother’s stiff interactions with J. More importantly, the OCL investigation was incomplete and the report was dated more than four years before the start of the trial. It is clear in the trial judge’s decision that she viewed the mother’s parenting to have improved significantly since that time.
[29] The father relies on a consent order Shelston J. made in 2021 requiring the mother to complete drug testing. A temporary without prejudice consent order has little if any probative value. The trial judge made express findings that, following treatment, the mother had been sober since February 2020 except for a one-day relapse with alcohol in June 2020.
[30] The father also submits that, in view of evidence he provided, the trial judge should not have accepted the mother’s evidence as credible. He relies, for example, on emails from the mother’s father and stepmother in which they question the mother’s version of events and discuss concerns about the mother’s drug use. These emails were from late 2017 and May 2018, again more than four years before trial. The trial judge explained in her decision at para. 37 that the mother’s father, C.B., recognized a change in the mother in early 2020 because she demonstrated a commitment to addressing her issues. The emails from 2017 and 2018 are consistent with the trial judge’s findings.
[31] Contrary to the father’s submission, the trial judge’s decision to ignore “commentary” inserted into the pages and exhibits of the father’s 876-page document did not cause unfairness. The trial judge did not strike the material from the record, but said she would disabuse herself of the commentary that did not constitute admissible evidence. The commentary in many cases was argument, which is not appropriate in a document setting out the father’s evidence. The trial judge also admitted into evidence two prior affidavits sworn by the father. It remained open to the father to otherwise participate in the trial, including by making closing arguments. Moreover, the amicus did make written closing arguments with respect to the evidence and positions favourable to the father.
[32] The father also disputes the trial judge’s decision not to allow into evidence various video and audio recordings submitted by the father. This ruling is entitled to deference. The trial judge found that the recordings she declined to admit had no probative value. There is no basis to interfere with her conclusion.
[33] In all the circumstances, the trial judge made extensive and fulsome efforts to assist the father and ensure he had a fair opportunity to present his case. The father requested repeated adjournments, but with no explanation as to how more time would assist him either with his health or to retain counsel. In the end, the father chose not to participate in the trial, other than by filing his extensive document, which the trial judge accepted. The father has not shown that the trial judge failed to consider his evidence. Instead, he disagrees with her factual findings. This does not constitute procedural unfairness.
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[35] The amicus performed her role of presenting a case for the father and challenging the mother’s evidence. She called two witnesses for the father and cross-examined the mother’s witnesses. She also provided closing submissions to the trial judge.
[36] There can be little doubt that the role of the amicus in this case was challenging. Near the end of trial, the amicus advised the court that there had been a breakdown in her relationship with the father, such that she did not expect he would want her to help with his submissions. The father also appeared at the Zoom hearing to raise his own complaint that the amicus was not on his “side.” . Thatcher-Craig v. Clearview (Township)
In Thatcher-Craig v. Clearview (Township) (Ont CA, 2023) the Court of Appeal considered the nature of the legal assistance the court should give to presenting parties:[51] ... While it is within the discretion of a motion or trial judge to control the court process and in that context grant latitude to a self-represented litigant on procedural issues, that discretion does not extend to rectifying substantive legal deficiencies: see Canadian Judicial Council, Statement of Principles on Self‑represented Litigants and Accused Persons, September 2006 (online: http://www.scc-csc.ca/cso-dce/2017SCC-CSC23_1_eng.pdf), endorsed in Pintea v. Johns, 2017 SCC 23, [2017] 1 S.C.R. 470. . Duhamel v. Canada (Attorney General)
In Duhamel v. Canada (Attorney General) (Fed CA, 2022) the Federal Court of Appeal considered when an unrepresented appellant should be allowed to informally bring a motion, or when they should be required to follow the rules:[3] At the commencement of the hearing of this appeal, Mr. Duhamel confirmed that he was seeking to bring an oral motion before the Court. He indicated that his motion would be for directions under Rule 60 of the Federal Courts Rules, SOR/98-106, with respect to certain documents included in the appeal book. He also submitted that the certified record of the CJC was incomplete.
[4] Rule 60 allows the Court to permit a party who has not complied with the Rules or who has a gap in the proof of their case to remedy the problem:"60 At any time before judgment is given in a proceeding, the Court may draw the attention of a party to any gap in the proof of its case or to any non-compliance with these Rules and permit the party to remedy it on such conditions as the Court considers just. "
"60"" La Cour peut, à tout moment avant de rendre jugement dans une instance, signaler à une partie les lacunes que comporte sa preuve ou les règles qui n’ont pas été observées, le cas échéant, et lui permettre d’y remédier selon les modalités qu’elle juge équitables." [5] In this case, presumably Mr. Duhamel is relying on the authority of the Court to permit a party to remedy an alleged non-compliance with the Rules.
[6] Rule 359 stipulates how a motion is to be brought before this Court:"359 Except with leave of the Court, a motion shall be initiated by a notice of motion, in Form 359, setting out "
"359"" Sauf avec l’autorisation de la Cour, toute requête est présentée au moyen d’un avis de requête établi selon la formule 359 et précise : "
"(a) in respect of a motion other than one brought under rule 369 or 369.2, the time, place and estimated duration of the hearing of the motion; "
("a"") sauf s’il s’agit d’une requête présentée selon la règle 369 ou 369.2, la date, l’heure, le lieu et la durée prévue de l’audition de la requête; "
"(b) the relief sought; "
("b"") la réparation recherchée; "
"(c) the grounds intended to be argued, including a reference to any statutory provision or rule to be relied on; and "
("c"") les motifs qui seront invoqués, avec mention de toute disposition législative ou règle applicable; "
"(d) a list of the documents or other material to be used for the purposes of the motion. "
("d"") la liste des documents et éléments matériels qui seront utilisés dans le cadre de la requête. " [7] Rule 359 stipulates that, except with leave of the Court, a motion is to be initiated by a notice of motion in Form 359. The document identified as Appellant’s Additional Submissions is not in Form 359. In particular, the document does not identify the relief sought nor does it include any reference to any statutory provision or Rule that Mr. Duhamel would be relying on. It was only during the hearing of this appeal that Mr. Duhamel indicated that he was relying on Rule 60 and that he was seeking directions to have certain documents removed from the appeal book. Since Mr. Duhamel did not seek leave to initiate a motion otherwise than by a notice of motion in Form 359, the motion should be quashed and the Appellant’s Additional Submissions should not be filed. . Johnson v. Johnson
In Johnson v. Johnson (Div Ct, 2022) the Divisional Court judge asked the Court office to provide the presenting parties with case law relevant to their situation (here, the law on extending time for appeal). I selected this case for the novelty of them doing that, as normally the court doesn't go anywhere near providing legal advice:[11] I asked the Court office to provide the parties with a case authority with respect to the test for a motion for leave to extend time. The Court office did so by email yesterday, as follows:1250264 Ontario Inc. v. Pet Valu Canada Inc., 2015 ONCA 5, quoting Enbridge Gas Distribution Inc. v. Froese, 2013 ONCA 131, 114 O.R. (3d) 636, at para. 15 -- the test on a motion to extend the time for the delivery of a notice of appeal is as follows:The overarching principle is whether the “justice of the case” requires that an extension be given. Each case depends on its own circumstances, but the court is to take into account all relevant considerations, including: (a) whether the moving party formed a bona fide intention to appeal within the relevant time period;
(b) the length of, and explanation for, the delay in filing;
(c) any prejudice to the responding parties, caused, perpetuated or exacerbated by the delay; and
(d) the merits of the proposed appeal. . Macmull v. Ministry of Health
In Macmull v. Ministry of Health (Div Ct, 2022) the Divisional Court considered an issue of interest to presenting litigants and civil procedure practice regarding commencing proceedings. It started with a letter from the applicants whereby they "sent a request to the Divisional Court to commence an application for judicial review". The request was substantially deficient in numerous respects in substantive law, the naming of parties and in terms of the court document rules. The court noted:[6] As stated in the October 4, 2021 Rule 2.1 Notice, through case management of this matter, I gave the applicants two opportunities to correct the defects in their notice of application for judicial review and urged them to consult a lawyer. In a communication to the Court dated September 27, 2021, the applicants refused to do so and instead suggested that they should not be required to do anything further to move forward with this matter.
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[8] As mentioned above, the applicants responded to the Court’s Rule 2.1 Notice. In their response, rather than addressing the defects identified by the Court, the applicants essentially took the position that they should not be required to comply with the legal requirements for moving this matter forward. In doing so, they suggest that it is the Court’s role to investigate their allegations that Sunnybrook mistreated their father. They also take issue with the Court’s characterization of their failure to comply with prior directions meant to assist them in moving this matter forward.
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[13] As previously suggested in the Rule 2.1 Notice, while the applicants may have legitimate concerns about the care their father received at the hospital, they must follow the proper legal processes for bringing those concerns forward in a legal proceeding. On an application for judicial review, the scope of the Divisional Court’s powers is limited to reviewing the decision under challenge. The applicants’ proposed application does not purport to challenges the Board’s decisions and it raises issues that go far beyond the scope of this Court’s authority on an application for judicial review.
[14] While I accept the applicants’ general proposition that the Court should make some allowances for the fact that they are self-represented, this does not extend to allowing the applicants to bring forward a proceeding that names the wrong parties and that does not state proper grounds for judicial review. While self-represented litigants can be excused from complying with some of the Court’s formal requirements in appropriate circumstances, they nevertheless have an obligation to inform themselves about court processes and to ensure that their proceedings are tenable at law.
[15] Finally, I appreciate that the proposed application for judicial review arises from the death of the applicants’ father. Their father’s death has no doubt caused significant distress and grief. However, if the applicants wish to bring forward legal proceedings arising from their father’s death, they must nevertheless advance a tenable legal claim. An application for judicial review that does not name the proper respondents and that addresses issues that do not arise from the proceedings before the Board is not such a proceeding. Ultimately the court dismissed the matter under Rule 2.1 for being frivolous and vexatious.
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