On May 11, 2020, Law Times published a feature by David Kitai on the Ontario Court of Appeal’s decision in Girao v Cunningham, 2020 ONCA 260, under the headline “Auto-injury ruling in Girao v. Cunningham a landmark for self-represented litigants, lawyers say.” Paul was quoted in the article alongside Professor Julie Macfarlane, Director of the National Self-Represented Litigants Project, and Kelsey Buchmayer, an NSRLP research assistant who had written a commentary on the case.
The article addressed the procedural and evidentiary issues that led the Court of Appeal to order a new trial after a self-represented plaintiff, who had recovered jury awards of $45,000 in general damages and $30,000 for past loss of income, saw those awards reduced to zero on a threshold motion and was then ordered to pay costs of $311,845.34. The Court of Appeal found the trial had been unfair to the plaintiff as a self-represented litigant, and identified several lines of unfairness.
The decision
Girao arose from a motor vehicle accident. The plaintiff, who did not speak English and used an interpreter at trial, was self-represented against experienced insurance defence counsel. The jury found the defendant liable. The plaintiff’s damages were then reduced to zero under the threshold provisions of the Insurance Act. The trial judge awarded costs against the plaintiff at partial indemnity in the amount of $311,845.34.
On appeal, Justice Lauwers identified four distinct lines of substantive trial unfairness: the preparation, content, delivery, and use of the so-called “Joint Trial Brief”; the defence’s treatment of expert evidence; the defence’s use of information about the appellant’s accident benefits settlement; and the role of the trial judge and counsel where one party is self-represented. The Court of Appeal ordered a new trial on the basis that the interests of justice required it.
The s. 52 Evidence Act asymmetry
Paul’s commentary in the Law Times article focused on the evidentiary asymmetry at the centre of the appeal: the use of section 52 of the Evidence Act, RSO 1990, c E.23. Section 52 permits the admission of medical reports as evidence without requiring the author to attend for cross-examination, where proper notice has been given and no objection is taken. Used properly, it is an efficient way to put uncontroversial medical evidence before the court. Used asymmetrically, it can shape the medical record the jury sees in ways that disadvantage one side.
In Girao, the plaintiff had medical evidence supportive of her position. The defence objected to her efforts to file her own medical reports under s. 52. The trial judge upheld the objection. The defence then filed a medical report favourable to its case under s. 52 itself. The plaintiff’s evidence was kept out; the defence’s was let in.
As Paul put it in the Law Times article, the plaintiff’s supportive medical evidence was blocked through legal maneuvering with the trial judge’s approval, while the defence was able to “cherry pick” favourable medical evidence and deliver redacted briefs that kept out material harmful to its case. At a high level, that asymmetry is offensive to the sense of justice the trial process is supposed to deliver.
The Joint Trial Brief
The second strand of unfairness the Court of Appeal addressed was the Joint Trial Brief itself. The defence had prepared a sixteen-volume brief and served it on the plaintiff the night before trial. The brief was prepared without the plaintiff’s input. It included selective redactions that minimized the documentation favourable to her.
The Court of Appeal held 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. The court did not go as far as to say that the document brief was itself fatal to the trial, but it did find the brief had unfairly enabled the defence to keep unfavourable documents out of the material the jury saw. The redaction work, in particular, fell outside the boundaries of what a defending party could do when the plaintiff had no counsel to push back on the selections being made.
The framework Paul described
The Law Times article asked whether the accommodations Girao requires for self-represented litigants might effectively punish those who choose to retain counsel. Paul’s response was that the accommodations are best understood as “the bare minimum” required to ensure there is no obvious miscarriage of justice. The accommodation is not an advantage handed to self-represented litigants. It is a floor below which the trial process should not be permitted to fall.
Paul and Professor Macfarlane both indicated, in the article, that the result they wanted to see was self-represented litigants having their cases tried on the merits, not having their cases derailed by procedural maneuvering that exploits the absence of counsel. The trial process is not a contest of expertise about the trial process. It is a contest about the substantive merits. When procedural skill is used to prevent the substantive merits from being reached, the result the trial produces is not a result on the merits.
A note on the original trial result
A final piece of the Law Times conversation is worth flagging. The plaintiff in Girao had, in fact, persuaded a jury of the merits of her case. She recovered $75,000 gross in damages, before the threshold deduction was applied. As Paul observed in the article, that is not a bad result for a self-represented plaintiff who does not speak English, against experienced insurance defence counsel, on a complex motor vehicle file. The unfairness the Court of Appeal corrected was not that the plaintiff was incapable of presenting her case to the jury. It was that the trial process around her presentation had been allowed to operate without the protections the law requires when one party is self-represented.
Context
At the time of the Law Times article, Paul was a partner at Will Davidson LLP. The firm restructured later, and Paul is now a partner at Davidson Cahill Morrison LLP. The substantive perspective Paul offered the journalist, on the procedural fairness considerations that Girao clarified, continues to inform his work on plaintiff-side personal injury and medical malpractice trials.
The full Law Times article is available at lawtimesnews.com.
