Talk:Witness Exclusion Order (LTB)

Overview

Sae-Bin Im v BMO Investorline Inc., 2017 ONSC 95 (CanLII)

Responsibility to the Self-Represented Litigant

[4] None of the defendants have filed materials, and the motion has been brought in writing. This puts the court in a difficult position, given that Mr. Im is self-represented. I have carefully considered my obligations toward the self-represented plaintiff. Judges have a responsibility to ensure that self-represented persons are provided with fair access and equal treatment by the courts, and to facilitate access to justice. There are limits to the assistance which a judge may provide: a judge must always remain neutral and impartial, and balance fairness to all the parties. A judge cannot become an advocate, provide legal advice, advance new arguments for the self-represented litigant or advise on strategy.

[5] On the other hand, the Canadian Judicial Council’s “Statement of Principles on Self-Represented Litigants and Accused Persons”, which are advisory in nature, state that:

1. Judges have a responsibility to inquire whether self-represented persons are aware of their procedural options, and to direct them to available information if they are not. Depending on the circumstances and nature of the case, judges may explain the relevant law in the case and its implications, before the self-represented person makes critical choices.

2. In appropriate circumstances, judges should consider providing self-represented persons with information to assist them in understanding and asserting their rights, or to raise arguments before the court.

3. Judges should ensure that procedural and evidentiary rules are not used to unjustly hinder the legal interests of self-represented parties. (emphasis added)

The Principles also state that a judge may “provide information about the law” in appropriate circumstances.

[6] Mr. Im is about to make a “critical choice”, based on a clear misunderstanding of the law and procedure. In the circumstances, I believe that I have a responsibility as a judge to explain the relevant law and its implications, remaining sensitive to the interests of the respondents.

[7] The respondents chose not to participate in the motion, as is their right. If Mr. Im brings a motion to extend time for filing of the Statement of Claim, the respondents have all of their rights and may oppose that motion. Failing to advise Mr. Im of the procedural issues and the critical choice, however, would in my view have led him to relinquish a potentially important right based on a misunderstanding of the relevant law and its implications, and procedural choices available to him.

[8] I explain the relevant law and procedure relating to the critical choice facing Mr. Im in the next section.