Miscarriages of Justice; the duty of fairness for self-represented litigants in Civil Law Trials

BY NANA ADJEI-POKU

Last month, Court of Appeal Honourable Justice Peter Lauwer’s allowing an appeal pursuant to a motion brought by a self-represented litigant during trial released a 63-page decision. This decision has shed light on the issue of self-represented litigants and fairness in the civil courts.

I am just going to summarize the key details that led to trial and subsequently the appeal.

The Plaintiff/Self-Represented Litigant in this case was Yolanda Girao. She came to Canada from Peru back in 1999 and was working as cleaner. She found it difficult to learn the English language and her level of speaking was very poor.

On June 19^th, 2002, Ms. Girao was involved in a motor vehicle accident (mva). She claims she suffered injuries to her neck and back and these injuries ended up becoming chronic. She also claimed that she suffered from depression as a result of the mva.  Ms.  Girao filed for Statutory Accident Benefits from her insurer Allstate. This accident benefit claim was settled in 2006 and she received lump sum of $82,300. Ms. Girao also filed a lawsuit and claiming $1Million in general and special damages from the driver of the other vehicle, Lynn Cunningham. Her insurance company to represent her in the litigation provided a lawyer for Ms. Cunningham.  A Statement of Defence was served on behalf of Ms. Cunningham claiming that an “unidentified motorist” caused the accident.  As a result of this claim, Ms. Girao had to sue her insurer Allstate and the company was brought in as a co-defendant to Ms. Cunningham.

Throughout the trial, Ms. Girao utilized an interpreter and the trial was a judge and jury trial.  A 16-volume, heavily redacted joint trial brief was served on Ms. Girao the “eve of trial”. Trial documents are supposed to be served in advance of trial even if they are joint briefs that both parties will rely on. There was no way for Ms. Girao to be able to review all of this. Any medical reports that would have been favourable to Ms. Girao were redacted and, although the appeal judge did not feel this factor was a fatal flaw to her fairness, it put her at a huge disadvantage in conducting the proceeding in a timely, cost-effective manner.

In support of her claim, Ms. Girao produced medical reports prepared that were supported by several expert reports and summarized into a single report by Dr. Harold Becker, who is the director of the clinic she visited. Most importantly, there was a very supportive psychiatry report by Dr. Rosenblat, one of the doctors of Dr. Becker’s clinic.  The trial judge limited Dr. Becker’s testimony and only allowed him to testify about determining a person’s entitlement to accident benefits for catastrophic impairment but not about the substance of his report, which was most favourable to Ms. Girao’s position.

The trial judge also went on to advise the jury that Dr. Becker’s evidence was not in issue, and it was thus excluded.  Another issue was the report of a psychiatrist, Dr. Sanchez, whom Ms. Girao saw prior to her accident.  In Dr. Sanchez’ report, he stated that Ms. Girao had suffered the same psychiatric problems prior to the accident.  Ms. Girao disagreed and as a result, Dr. Sanchez should have been produced for cross-examination. He was not as defence sought to include his opinion by way of s.35 of the Evidence Act that deals with exceptions to hearsay evidence. Once Ms. Girao raised the objection, the trial judge should have had Dr. Sanchez testify, in order to allow him to be cross-examined by Ms. Girao; he did not. This was later found to be substantially unfair to Ms. Girao.

The defence also tried to portray Ms. Girao as a person who was “looking for a second windfall” due to her earlier receipt of the accident benefit settlement in 2006.  Defence claimed that the mva was minor and could not have contributed to the injuries. They stated that the money she received over the four-year period from 2002 to 2006 was more than what she would have earned as a cleaner. This is the reason why she did not make any attempts to seek new employment but claimed to be suffering from injuries as a result of the accident so that she could get more money.

At the conclusion of the trial, the jury sided with Ms. Girao and found Ms. Cunningham liable. They awarded $75,000 to Ms. Girao for general and special damages and past loss of income. The defence disagreed and brought a motion to dismiss the jury, as Ms. Girao had not met the threshold that would qualify for receipt of general damages. This threshold the defence claimed that was not met is pursuant to s.267.5(5) of the Insurance Act, R.S.O. 1990, c.I.8 that states that, “you must have suffered a serious and permanent impairment of physical, mental or psychological function.”  The trial judge agreed and reduced Ms. Girao’s claim for damages to $0 and awarded partial-indemnity costs totalling $311,845.34 against Ms. Girao.

On appeal of that motion, Lauwers, J. laid out a number of issues and in his reasons, allowed the appeal, and ordered a new trial. The trial was unfair to Ms. Girao and she was able to prove that:

• there was a miscarriage of justice;
• there were issues with the “joint trial brief” and the evidence it excluded which would have made the trial a fair one in the interests of justice;
• the trial judge, although had limits, should have assisted her within those limits knowing her status as a self-represented litigant with no legal education or knowledge;
• the trial judge should have taken the Statement of Principles on Self-represented Litigants and Accused Persons into consideration; and,
• the issues Ms. Girao objected to were relevant ones and should have been allowed.

This was a very informative and interesting read. The full decision can be found on CanLII:  Girao v. Cunningham, 2020 ONCA 260.

If you have any questions regarding the topics discussed, feel free to shoot me an email at info@inforduslegal.com