Dealing with a Self-Represented Litigant? Handle with Care

Sometimes during an intake meeting, a potential new client will tell me that they want to hire an “aggressive” lawyer. Their expectation usually has to do with making threats at the outset and being difficult and uncooperative with the other side. 

My response is always: “If that’s what you want, I’m the wrong guy for the job. But I don’t think that’s what you really want.” I then go on to explain how, in my experience, it is generally counterproductive to litigate in such an “aggressive” manner. It makes settlement more difficult; it drives up costs and does not impress judges. You can push back against such aggression, but there is no need to instigate it. I recommend being as civil and co-operative as possible with the other side on procedural issues, narrowing the issues as much as possible, and then saving the real fight for what is actually in dispute.   

It can be especially tempting to engage in aggressive conduct towards a self-represented litigant (“self rep”) on the other side of a lawsuit. Self reps can be frustrating to deal with because they often do not understand the process.  

In the recent Ontario Court of Appeal decision Grand River Conservation Authority v. Ramdas, the Court provided some observations about the duties that judges and opposing counsel have towards self reps.   In this case, the self rep appellant Ms. Ramdas appealed two orders for permanent injunctions against her in respect of work she undertook on her property, which backed onto a wetland, without the requisite permits. She argued that the application judge erred in not granting an adjournment and in failing to require the matters in issue to proceed to trial.

The applications for permanent injunctions were brought by the Conservation Authority and the Township to prevent any interference with the wetland, to require her to remediate her property, and to reimburse the Township its enforcement expenses. Interim injunctions had been in place for almost a year at the time of the applications. Ms. Ramdas had been in full compliance with the interim injunctions.

These applications were heard without any evidence from Ms. Ramdas. Ms. Ramdas’ previous counsel had served responding materials but had not filed them with the court. No factum had been served or filed. The application judge was not advised about the interim injunctions, nor Ms. Ramdas’ compliance with them.  Both permanent injunctions were granted against Ms. Ramdas.

Ms. Ramdas lost the appeal. Despite this, no costs were awarded on the appeal. The Court expresses some concerns with the way that Ms. Ramdas was treated as a self rep in this hearing. 

First of all, the Court makes some suggestions of what judges can do to “permit self represented parties to explain how they understand the status quo.”   One option would be for the judge to swear in a self rep and allow submissions to be made from the witness box. Another option would be for the judge to engage in “active adjudication in order to obtain relevant evidence from a self-represented party who might not fully understand what is relevant and what is not.”

The Court then refers to the obligations of counsel who are opposing a self rep. The Court refers to the duty set out in the Law Society’s Rules of Professional Conduct to make sure that the case is presented in a candid and comprehensive manner so that a tribunal is not misled. This gets applied “where the presence of a self-represented litigant might impede the full proof and argument expected when both sides are represented.”   

The Court recommends that lawyers follow the guidance of the American College of Trial Lawyers’ Canadian Code of Conduct for Trial Lawyers Involved in Civil Actions Involving Unrepresented Litigants:

• Not attempt to derive benefit for clients from the fact that the opposing litigant is self-represented (s. 9(a));
• Be aware of their duty to the court in considering reasonable requests for adjournments or waivers of procedural formalities when there is no real prejudice to their client’s rights or interests (s. 9(b)); and
• Advise the court of all material communications and agreements reached with the self-represented litigant (s. 12(c)).

The Court found the Conservation Authority and Township to be “remiss” for not alerting the application judge that interim injunctions were in place, that Ms. Ramdas had complied with them, and that Ms. Ramdas’ counsel had previously served responding materials.   In light of this, no costs were awarded on the appeal.   

This case should serve as a caution for counsel and their instructing clients to not attempt to take advantage of any situation when dealing with a self rep. Engaging in aggressive procedural tactics against a self rep could be especially risky.

By David Thompson

Sometimes during an intake meeting, a potential new client will tell me that they want to hire an “aggressive” lawyer. Their expectation usually has to do with making threats at the outset and being difficult and uncooperative with the other side. 

My response is always: “If that’s what you want, I’m the wrong guy for the job. But I don’t think that’s what you really want.” I then go on to explain how, in my experience, it is generally counterproductive to litigate in such an “aggressive” manner. It makes settlement more difficult; it drives up costs and does not impress judges. You can push back against such aggression, but there is no need to instigate it. I recommend being as civil and co-operative as possible with the other side on procedural issues, narrowing the issues as much as possible, and then saving the real fight for what is actually in dispute.   

It can be especially tempting to engage in aggressive conduct towards a self-represented litigant (“self rep”) on the other side of a lawsuit. Self reps can be frustrating to deal with because they often do not understand the process.  

In the recent Ontario Court of Appeal decision Grand River Conservation Authority v. Ramdas, the Court provided some observations about the duties that judges and opposing counsel have towards self reps.   In this case, the self rep appellant Ms. Ramdas appealed two orders for permanent injunctions against her in respect of work she undertook on her property, which backed onto a wetland, without the requisite permits. She argued that the application judge erred in not granting an adjournment and in failing to require the matters in issue to proceed to trial.

The applications for permanent injunctions were brought by the Conservation Authority and the Township to prevent any interference with the wetland, to require her to remediate her property, and to reimburse the Township its enforcement expenses. Interim injunctions had been in place for almost a year at the time of the applications. Ms. Ramdas had been in full compliance with the interim injunctions.

These applications were heard without any evidence from Ms. Ramdas. Ms. Ramdas’ previous counsel had served responding materials but had not filed them with the court. No factum had been served or filed. The application judge was not advised about the interim injunctions, nor Ms. Ramdas’ compliance with them.  Both permanent injunctions were granted against Ms. Ramdas.

Ms. Ramdas lost the appeal. Despite this, no costs were awarded on the appeal. The Court expresses some concerns with the way that Ms. Ramdas was treated as a self rep in this hearing. 

First of all, the Court makes some suggestions of what judges can do to “permit self represented parties to explain how they understand the status quo.”   One option would be for the judge to swear in a self rep and allow submissions to be made from the witness box. Another option would be for the judge to engage in “active adjudication in order to obtain relevant evidence from a self-represented party who might not fully understand what is relevant and what is not.”

The Court then refers to the obligations of counsel who are opposing a self rep. The Court refers to the duty set out in the Law Society’s Rules of Professional Conduct to make sure that the case is presented in a candid and comprehensive manner so that a tribunal is not misled. This gets applied “where the presence of a self-represented litigant might impede the full proof and argument expected when both sides are represented.”   

The Court recommends that lawyers follow the guidance of the American College of Trial Lawyers’ Canadian Code of Conduct for Trial Lawyers Involved in Civil Actions Involving Unrepresented Litigants:

• Not attempt to derive benefit for clients from the fact that the opposing litigant is self-represented (s. 9(a));
• Be aware of their duty to the court in considering reasonable requests for adjournments or waivers of procedural formalities when there is no real prejudice to their client’s rights or interests (s. 9(b)); and
• Advise the court of all material communications and agreements reached with the self-represented litigant (s. 12(c)).

The Court found the Conservation Authority and Township to be “remiss” for not alerting the application judge that interim injunctions were in place, that Ms. Ramdas had complied with them, and that Ms. Ramdas’ counsel had previously served responding materials.   In light of this, no costs were awarded on the appeal.   

This case should serve as a caution for counsel and their instructing clients to not attempt to take advantage of any situation when dealing with a self rep. Engaging in aggressive procedural tactics against a self rep could be especially risky.

By David Thompson