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December 3, 2018

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Law Times • December 3, 2018 Page 3 Ruling highlights issues around self-reps BY AIDAN MACNAB For Law Times A n Ontario Superior Court has ruled against a self-represented liti- gant in a case lawyers say demonstrates the balance between accommodating SRLs and demanding too much from judges. In Beraskow v. TD Insur- ance, Alex Beraskow lost his Small Claims Court action against TD Insurance and its contractor, which resulted out of repair work done that Beraskow said was shoddy. He appealed to the Divisional Court of the Su- perior Court of Justice, arguing that the trial judge fell short on her duties to him as an SRL. "This is one of the hardest things that we now expect judges to do," says Nicholas Bala, profes- sor of law at Queen's University. Bala says the challenge is increasing access to justice by ensuring the SRL can navigate the process and making sure the judge remains neutral, not becoming counsel to one of the parties. "It is a difficult balance," he says. Beraskow's basement f looded after a pipe burst, damaging his cork f looring. TD Insurance, Beraskow's insurer, contracted ServiceMaster to fix the f loor- ing, which it sub-contracted to a f looring company, and the work was completed in March 2014. The trial judge, Deputy Judge Rosalind Conway, dismissed Beraskow's claim against TD Insurance and ServiceMaster and awarded them $5,606.76 and $6.320.96, respectively, in January 2018. Beraskow asked the Superior Court to set aside Conway's order and grant him $16,000, payable by TD Insur- ance and ServiceMaster, plus in- terest and costs of $2,400. Beraskow's position was that the trial judge erred in failing to meet her responsibilities to him as a self-represented litigant by personally viewing the property and f looring in question, in fail- ing to permit him to file addi- tional evidence, in finding Ser- viceMaster acted in good faith during payment of his claim and finding that the claim concern- ing the vapour barrier was stat- ute barred. In his factum, Beraskow ref- erenced the statement of princi- ples on self-represented litigants and accused persons, devised by the Canadian Judicial Council. The Supreme Court endorsed the principles in Pintea v. Johns in 2017. The principles include requiring judges to make SRLs aware of procedural options, explain relevant law and pro- vide information to assist them in understanding and asserting their rights. In turn, SRLs are ex- pected to familiarize themselves with relevant legal practices and procedures, prepare their case, be respectful and not abuse the process. Justice Michelle O'Bonsawin found the trial judge had prop- erly assisted the plaintiff. "It is important to note that the role of the trial judge is not to act as counsel for the self-repre- sented litigant," she wrote in the decision. ServiceMaster argued that, as a professional engineer, the plaintiff 's sophistication and court experience should be con- sidered. The plaintiff had been involved in five other lawsuits in Small Claims Courts related to his house. The trial judge had travelled to Beraskow's house and looked at the cork f looring herself, which she was entitled to do under Rule 17.03 of the Rules of Small Claims Court and Rule 52.05 of the Rules of Civil Pro- cedure, and O'Bonsawin found there was no error in doing so. Beraskow was ordered to pay $9,588 to ServiceMaster and $8,546 to TD Insurance. Julie Macfarlane, professor of law at the University of Windsor and project director of the Na- tional Self-Represented Litigants Project, says that everyone knew that, in practice, applying Pintea was going to be "extraordinarily difficult." Beraskow v. TD Insurance is an example, however, where the judge could have done more, she says. Her organization, the NSRLP, released a report in October that analyzed the case law since Pintea. Macfarlane says there is a trend in assum- ing that, when an SLR appears sophisticated and well educated, the responsibility on the judge to explain the process is seen as reduced or minimized. "I think that there was more that the judge should have done here. I think there's obvious signs that the self-represented litigant did not understand and that that prejudiced what they did. And I think that there was more that a judge could have done in this case to discharge their obligations under Pintea," she says. When it comes to a judge's duty to assist an SRL, Bala says, there may be a different feeling toward a mother in a family law case or a person charged with a criminal offence and a person in a $16,000 construction lawsuit who has undertaken five other similar lawsuits. Beraskow also rejected a settlement. David Contant, a partner at Nelligan O'Brien Payne LLP, who acted for Beraskow did not provide comment. Counsel for ServiceMaster also did not pro- vide comment. LT NEWS Visit Questions? Master the law. Canada's leading law school offers a graduate degree in four unique streams: Business Law Canadian Law in a Global Context Innovation, Law and Technology Law of Leadership Apply today. Untitled-1 1 2018-05-10 10:52 AM Nicholas Bala, professor of law at Queen's University, says balancing rights of self- represented litigants is 'one of the hardest things that we now expect judges to do.' It is important to note that the role of the trial judge is not to act as counsel for the self- represented litigant. Justice Michelle O'Bonsawin

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