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Procedural Fairness and the Self-Represented Litigant - A Cautionary Tale for Judges

6 minute read

In Foxgate Development Inc v Jane Doe ("Foxgate Development"), the Ontario Court of Appeal reaffirmed the high threshold for procedural fairness in contempt of court proceedings, especially those involving self-represented Indigenous litigants.


The respondent-plaintiff, Foxgate Development Inc ("Foxgate"), is a developer of a housing project in Haldimand County. The appellant-defendant, Skyler Williams ("Williams"), is a Haudenosaunee resident of the reserve situated at Six Nations of the Grand River. After Foxgate entered into an agreement with the Six Nations Elected Counsel and the Mississaugas of New Credit related to the site's development, protestors, including Williams, began attending at the development site. Foxgate commenced the action and eventually named Williams as a defendant and "protest leader”.[1]

Williams participated in the action as a self-represented litigant. During two court attendances before a motion judge, Williams made it clear that he was not abiding by the interim injunction ordered and did not intend to comply with future court orders.[2]

As a result, the motion judge found, on his own motion and based on his inherent jurisdiction, that Williams had admitted he was in contempt of court orders, and that this contempt constituted an abuse of process. He prevented Williams from further participation in the proceedings. Subsequently, he also struck Williams' pleadings in the injunction and granted a permanent injunction to the respondents.[3] The motion judge ordered costs in excess of $168,000 against Williams.[4]

Court of Appeal Decision

The Court of Appeal allowed the appeal, finding the motion judge failed to afford Williams the procedural fairness required before making an order striking his pleadings and foreclosing his further participation in the proceedings.[5]

The court held that Williams was entitled to procedural fairness before the court and that the court's obligation of fairness to Williams was contextual. Here, the context consisted of factors such as that Williams was self-represented, Indigenous, and the very serious consequences to Williams following the order made against him.[6]

The court went on to consider the bounds of procedural fairness in contempt of court and abuse of process proceedings.

Citing Bell ExpressVu Limited Partnership v Torroni, 2009 ONCA 85, the court reviewed the three elements for the test of civil contempt and the jurisprudence that "a finding of contempt of court is a serious matter". The court remarked that the hearing of a motion for contempt was usually bifurcated over two hearings.

In this case, the motion judge had failed to instruct himself on the process to be followed or the evidentiary standard to be applied in a contempt motion. Even though Williams had admitted that he was "in contempt", the court could not circumvent the procedural protections which must accompany a contempt proceeding, nor did such an admission, in and of itself, meet the criteria for a finding of contempt.[7]

In the result, the court found Williams was denied procedural fairness in the following ways:

  • The motion judge did not take appropriate steps to put Williams on notice as to the exact nature of the proceeding against him (whether contempt, abuse of process, or both), and the criteria to be considered in that proceeding;
  • The motion judge did not provide particulars of the exact conduct in issue, which led to a finding of contempt;
  • The motion judge did not set out for Williams the potential consequences of his impugned conduct, including exposure to costs;
  • The motion judge did not allow Williams to consult with and retain counsel in respect of the contemplated order before the motion judge actually made the order; and
  • The motion judge did not allow Mr. Williams to respond to the particular allegations against him before making any order.

The court found that since the motion judge's finding of contempt could not stand, his reliance on that contempt as a basis for abuse of process also constituted an error, because the motion judge failed to afford Williams procedural fairness in reaching the finding of abuse of process.[8] The motion judge did not provide Williams a fair opportunity to be heard before reaching this finding, and rejected the relevance of Williams' arguments in relation to Indigenous rights with respect to his finding of abuse of process.[9]

Finally, the court considered Williams' other arguments on appeal:

  • That the court should have considered appointing a lawyer as an amicus curiae; and
  • Whether the quantum of costs ordered was unreasonable.

The court found the motion judge did not err by failing to consider the appointment of amicus counsel, as the motion judge did not conclude that he lacked the requisite impartiality to decide the motion fairly. However, the motion judge did err in making the costs award against Williams, as the denial of fairness tainted the motion judge's decision on costs.[10]

In the result, the court set aside the motion judge's orders granting the permanent injunction and striking Williams' pleadings. The court also set aside the costs order.[11]


The court held the requirements of procedural fairness in the context of contempt of court proceeding, especially involving a self-represented Indigenous litigant, was an independent right belonging to the litigant. This right could not be denied by saying a fair opportunity to be heard would have made no difference to the outcome.[12]

Foxgate Development places parameters for motion judges in contempt of court proceedings, especially if made on the court's own motion and inherent jurisdiction, to make findings of contempt without taking appropriate procedural steps to ensure fairness to the respondent.

While arguably the most important factor is allowing the litigant an opportunity to respond to the allegations of contempt, the Court of Appeal recognized that general contextual factors, including a litigant's Indigenous status, inform the extent of the entitlement to procedural fairness. Foxgate Development is an example of the courts' recent trend towards recognizing a special obligation towards self-represented and Indigenous litigants.

[1] Paras 6-11.

[2] Paras 13-17.

[3] Paras 19-21.

[4] Para 4.

[5] Para 5.

[6] Para 29.

[7] Paras 32-34.

[8] Para 48.

[9] Paras 50-52.

[10] Para 57-67.

[11] Paras 68-69.

[12] Para 54.

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