The Court of Appeal for Ontario‘s recently released decision in Girao v Cunningham, provides important guidance to both trial judges and counsel in trial practice. While the case arises from the context of a personal injury action, the principles enumerated by the court are broadly applicable to all areas of litigation. Principles related to self-represented litigants, evidence, and trial procedure are reviewed in detail by the court. To ensure that each of these topics are properly examined, a blog will be dedicated to addressing each separately. This is the first of a three part series, focusing on how a self-represented litigant can affect the preparation of a Joint Trial Brief, considerations for striking a jury, and the role of judge and counsel when dealing with a self-represented litigant at trial.
The Trial Decision
The case arose from a motor vehicle litigation in which the appellant/plaintiff (Girao), a self-represented litigant, was injured by the respondent, Cunningham. The claim against the defendant Mesta was dismissed several years prior to trial. The appeal was brought by Girao, who succeeded in establishing liability at trial, but ultimately the trial judge dismissed her action for not meeting the Insurance Act statutory threshold to qualify for general damages. Damages awarded by the jury for past loss of income were also reduced to zero after deducting statutory accident benefits. Costs were ordered against Girao in the amount of $311,845.43. Notably, Girao used a Spanish language interpreter throughout the trial, while the defence was represented by four experienced trial lawyers.
The Court of Appeal Decision
The Court of Appeal found that both trial counsel and the trial judge owed duties to Girao and both had failed to ensure that the trial was conducted in a fair manner. The court allowed the appeal and ordered a new trial, as “the interests of justice plainly required that to be done.”
The court highlighted four areas that resulted in substantial trial unfairness to Girao: (1) the Joint Trial Brief, (2) the treatment of expert evidence, (3) the defence’s use of information concerning Girao’s accident benefits insurance settlement, and (4) the role of trial judge and counsel where one party is self-represented.
The Joint Trial Brief
The night before the trial was to commence, the defendants served Girao with a selectively redacted 16 volume Joint Trial Brief. It was prepared with no input by Girao, and minimized documentation that was favourable to her. The court found that this brief was an unfair basis for the trial record and was inconsistent with prior directions provided by the Court of Appeal. As such, due to selective redactions, the brief failed to meet the complete and accurate requirements imposed by case law. The court noted that judicial oversight of the preparation and use of a Joint Trial Brief is significantly enhanced when a self-represented litigant is involved and the brief is prepared by opposing counsel.
While the court did not go as far as to say that the Joint Trial Brief was fatal to trial fairness, it did unfairly enable the defence to keep unfavourable documents out of the brief and thus not before the jury. The lesson from this decision is that going forward, both counsel and the court should confirm that the brief meets the necessary requirements of completeness and accuracy to properly ensure a fair proceeding.
Striking The Jury
The court also held that the trial judge should have reconsidered the decision not to strike the jury as requested by Girao during the course of the trial. The presence of a jury may inhibit a trial judge from providing assistance to a self-represented litigant, as there could be a fear of the jury thinking, whether true or not, that an unfair advantage was being given to one party. The fact that one party is self-represented may weigh in favour of striking the jury. The court noted that while the trial judge may not have been in a position to make this decision at the outset of the trial, as the complex issues mounted it should have been reassessed based on the new information available to the trial judge. The court determined that the complexity of the proceeding may have warranted a reconsideration. Nevertheless, the court afforded deference to the trial judge by not explicitly stating that the jury should have been struck, simply stating that the decision should have been reconsidered.
The Roles of Trial Judge and Counsel
Next, the court looked to the role of the trial judge and counsel where one party is self-represented. The court highlighted the Statement of Principles on Self-represented Litigants and Accused Persons that was endorsed by the Supreme Court of Canada in 2017, and the guidance it provides to ensure that self-represented litigants are able to “understand and meaningfully present their case.” The court honed in on the section that promotes equal justice, finding it to be highly relevant to the case before it. When dealing with a self-represented litigant, the court noted that the trial judge should not take a passive role in the proceedings. Rather, the trial judge has special duties to self-represented litigants with respect to informing them of court room procedure, rules of evidence, and to accommodate the self-represented litigants’ unfamiliarity with the trial process, while balancing the need for a proceeding that limits where the trial judge’s assistance can reach a point that threatens judicial impartiality, whether actual or perceived.
With respect to counsel’s duties, the court noted that while the professional ethical obligations of a lawyer toward a self-represented litigant is limited under the Rules of Professional Conduct, there are specific ethical duties that counsel has to the court that are intended to ensure a fair proceeding. In this case, the defence was advancing evidentiary positions on legally complex topics. Counsel should have assisted the trial judge with the legal issues that were key to these positions, as this in turn would have allowed the trial judge to actively assist Girao in dealing with them. For example, the court noted that the trial judge could have required counsel to provide a briefing note on the evidentiary issues before the court.
This important decision highlights the roles that judge and counsel should play in ensuring that a self-represented litigant is able to fully understand and participate in a trial, while preserving the essential fairness of the process. The trial judge is required to accommodate the self-represented litigant and ensure that he or she understands the arguments being made against them, to enable a proper response. Experienced trial lawyers have a role to play too, such as ensuring that a Joint Trial Brief properly and fairly represents the evidence before the court, and co-operating with requests of the trial judge to help guide a self-represented litigant. These duties are balanced by the principle of fairness. Assistance to a self-represented litigant should not rise to prejudicing the opposing party or affecting the actual or perceived impartiality of the court. When trial counsel knows that they will be proceeding against a self-represented litigant, they should take the time to ensure that their conduct is guided by the Statement of Principles on Self-Represented Litigants. Counsel should not leverage their knowledge of civil and evidentiary procedure to gain an advantage over a self-represented party.
The next part of this blog series will examine the Court of Appeal’s analysis of principles related to the Evidence Act and expert evidence.
 Girao v Cunningham, 2020 ONCA 260 at para. 7 per Lauwers, Fairburn and Zarnett JJ.A
 Supra, note 1 at paras. 1-5.
 Ibid at paras. 19-20.
 Ibid at para. 21.
 1162740 Ontario Ltd. v Pingue, 2017 ONCA 52 at paras. 14, 39-40; Iannarella v Corbett, 2015 ONCA 110 at paras. 127-128.
 Supra, note 1 at paras. 22-27.
 Ibid at para. 166.
 Ibid at paras. 164-170.
 (2006) Canadian Judicial Council.
 Pintea v Johns, 2017 SCC 23.
 Supra, note 1 at paras. 149-150.
 Toronto: Law Society of Ontario, 2000, (as amended), ch. 7, s. 7.2-9.
 Supra, note 1 at para. 150.
 Ibid at paras. 151-154.