Literacy and Access to Administrative Justice in Canada - Council of Canadian Administrative Tribunals

Davids v. Davids, [1999] O.J. No. 3930 (Ont. C.A.) The Ontario Court of Appeal discussed the role of a trial judge where one of the parties is unrepresented. At para. 36, the court wrote: “Fairness does not demand that the unrepresented litigant be able to present his case as effectively as a competent lawyer. Rather, it demands that he have a fair opportunity to present his case to the best of his ability. Nor does fairness dictate that the unrepresented litigant have a lawyer’s familiarity with procedures and forensic tactics. It does require that the trial judge treat the litigant fairly and attempt to accommodate unrepresented litigants’ unfamiliarity with the process so as to permit them to present their case. In doing so, the trial judge must, of course, respect the rights of the other party.”

There is a small body of jurisprudence dealing with the extent to which small claims court judges may assist unrepresented parties. Small claims rules and proceedings are intended to ensure that claims are resolved in a manner that is just, simple, and inexpensive. More importantly, small claims court is a legal forum that is accessible to lay litigants: Cappos v. Zurich Canada (1996), 12 C.C.L.I. (3d) 9 (B.C. Prov. Ct.). In this way, the courts have recognized that a less formal approach is permissible in order to facilitate accessibility.
Clayton v. Earthcraft Landscape Ltd., [2002] N.S.J. No. 516 (N.S.S.C.) LeBlanc J. held that there is authority to the effect that a trial judge who is faced with an unrepresented litigant has an obligation to direct that litigant’s attention to salient points of law and procedure. In this case, the Nova Scotia Supreme Court overturned the decision of a small claims adjudicator who did not draw the litigant’s attention to the fact that his documentary evidence would be entitled to more weight if he called the author of the document as a witness. At para. 28, the court held: “It seems clear from the cases that the requirements of natural justice create a duty for a small claims adjudicator to assist unrepresented parties, particularly where a legal or procedural issue of which the party is not aware, is relevant in assessing the merits.”