Self-Represented Litigants and a Judge’s Duty to Assist

In a recent case out of Newfoundland and Labrador, Hunt v Faulkner, 2023 NLSC 159,  a self-represented litigant, launched an appeal of his Small Claims Court matter, arguing that the judge interfered with his right to a fair trial by failing to ensure that he understood he could call witnesses.

At trial, the SRL, Mr. Hunt, was unsuccessful. His claim arose over a dispute about the sale of a truck. Mr. Hunt sued for damages, arguing that the respondents (who were also self-represented) had agreed to swap pick-up trucks. He alleged that he gave his truck to the respondents, who then failed to deliver their pick-up truck as agreed. The respondents conversely argued that there was no agreement to swap, rather they had fairly paid for the truck. They also countersued Mr. Hunt for damage caused to their property. In the end, the Small Claims Court dismissed Mr. Hunt’s claim and allowed the respondents’ counterclaim, ordering Mr. Hunt to pay damages.

During the trial, Mr. Hunt indicated to the judge that he had witnesses available who he wished to hear from and who were at the court and available to testify. A significant part of his appeal turned to Mr. Hunt’ argument that he was denied a fair trial because the judge did not allow him to call the witnesses to testify.

This case brings up an important issue for self-represented litigants in terms of how much and what kind of support a judge may need to provide a litigant who is representing themselves in a legal process. Most SRLs do not have formal legal training and understandably lack familiarity with legal processes. In turn, this means they may lack the necessary skill and expertise to represent themselves in a formal trial. Accordingly, having some support and information from the judge along the way may help with some of these gaps in knowledge and help ensure a fairer process.

During the appeal of this matter, the court stated, “Parties in court have the right to a fair trial and trial judges must ensure that the proceedings are fair, particularly when the parties represent themselves.” Despite Mr. Hunt indicating twice that he had witnesses, the judge closed Mr. Hunt’s case without hearing from any of them. Although there were possible explanations for this, on appeal, the court found the trial judge ought to have done more to follow up with Mr. Hunt about his witnesses.

As a result, the court found that the only appropriate remedy was to order a new trial for Mr. Hunt on his claim.

Principles of Self-Represented Litigants and Accused Persons

On appeal, the court referred to the 2017 the Supreme Court of Canada decision of Pintea v Johns, 2017 SCC 23, a case which endorsed the Principles of Self-Represented Litigants and Accused Persons published by the Canadian Judicial Council. This document provides some key principles centered on access to justice for self-represented litigants.

According to the Principles, judges have responsibilities to facilitate access to justice for all persons, including SRLs. Depending on the circumstances of the case, this may include actions such as:

  • Explaining the legal process or procedural options
  • Asking whether the SRL understands the process and procedure
  • Making referrals to agencies who may be able to assist the SRL to prepare their case
  • Providing information about the law or evidentiary requirements
  • Modifying the traditional order of taking evidence
  • Questioning witnesses

Responsibilities extend to SRLs as well. Notably, the Principles state that judges do not have an obligation to assist SRLs who are disrespectful, abusive or have not made a reasonable effort to prepare their case. The Principles call on SRLs to familiarize themselves with legal procedure, prepare their case and act respectfully during the court process.

A Primer on Important Decisions and the Principles for SRLs

One resource that may be helpful for Self-Represented Litigants is the National Self-Represented Litigants Primer on Critical Judicial Decisions for Self-Represented Litigants. This Primer discusses highlights from the Principles and and important case law for SRLs.

The primer provides a template for SRLs to use to draw a judge’s attention to the Principles and request that they be applied in their case. It also includes a list of cases that have since considered the Supreme Court of Canada’s decision in Pintea v John and the endorsement of the Principles. These cases are helpful to understand how and when judges have applied these Principles in practice.

The Takeaways

Judges do have some level of obligation to assist SRLs through a legal process.

The Principles outline that although judges may have a level of responsibility to assist SRLs, it goes both ways, and SRLs must also make their best efforts to understand and abide by court procedure.

As highlighted in the case above, if a judge fails to provide an appropriate amount of support to an SRL this may impact whether or not they received a fair trial. If not, there could be remedies available. For Mr. Hunt, this meant another opportunity in Small Claims Court to have his claim heard.

Further Reading

To learn more about the Pintea case or a Judge’s Duty to Assist, see the following resources from the National Self-Represented Litigant’s Project:

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