Do different rules apply to self-representative litigants?

Law360 Canada (December 24, 2024, 9:39 AM EST) --

John L. Hill

Self-represented litigants are expected to comply with the rules of the court. Is there a double standard when practicing members of the legal profession breach the rules when facing a self-represented opponent? This became central in deciding a case where a lawyer was late in filing material in a case where the opposing party was self-represented.

The Alberta Court of Appeal was called upon to answer this question in deciding Waddy v. His Majesty the King in Rights of Alberta (Solicitor General, Correctional Services Division), 2024 ABCA 408.

In an action, Michael Waddy, who was self-represented, sued a provincial ministry and named defendants Corie Phillips and Carl Pelton. Pelton’s lawyer was late filing a defence that was supposed to have been filed by Nov. 1, 2023. Counsel for Pelton requested the clerk’s office to file by 4:30 p.m. on Nov. 1 rather than the 4 p.m. closing time. But she missed that deadline by a few minutes.

Pelton’s counsel served unfiled documents on Waddy the same day. On Nov. 2, 2023, Pelton's lawyer applied for a fiat to allow her to file materials notwithstanding the deadline. Waddy knew about the application but did not attend court. The fiat was granted.

On Nov. 21, 2023, Waddy applied to set aside the fiat and for an order citing Pelton’s counsel in contempt. That application was not heard until April 3, 2024. Waddy was unsuccessful. A chambers judge held that Waddy had not suffered any prejudice because of the late filing of material. He was able to file his submissions without the requirement of an extension. Further, the chambers judge dismissed the contempt citation, saying acts of professional misconduct were the purview of the law society and not the courts.

Waddy’s claim of preferential treatment for members of the bar surfaced when he appealed the chamber judge’s ruling. The Appeal Court was unsympathetic to Waddy.

It commenced its ruling by noting that deference is owed to the judge granting the fiat since the granting of a fiat to permit late filing is “essentially a matter of court administration” (Baker v. Baker, 2014 ABQB 710, R. v. Ellis, 1995 ABCA 480). The Appeal Court can act to interfere with this discretion when a chambers judge misdirects herself; the decision is so clearly wrong that it amounts to an injustice, or where no weight is given to relevant considerations (Penner v. Niagara (Regional Police Services Board), 2013 SCC 19; Alberta Union of Provincial Employees v. Her Majesty the Queen (Alberta), 2021 ABCA 416).

This finding was sufficient to dispose of the appeal. However, the Alberta Court went on to state that while Pelton’s counsel provided no excuse for her missing a deadline, it was reasonable for the chambers judge to attribute this to human error rather than the intentional defiance of a court order.

Waddy was able to convince the court that while self-represented litigants face challenges, they are still expected to comply with the rules of the court (Morrison v. Galvanic Applied Sciences Inc., 2019 ABCA 207). Waddy was unable to understand why a court would allow a member of the bar to avoid the literal meaning of the rules when he was expected to comply with them strictly.

The Appeal Court’s answer was less than satisfying, suggesting there is a sliding scale and that the scales of justice need not always be balanced. The court wrote: “The short answer is that lawyers are human and from time to time, filing deadlines are missed. The granting of fiats allows for such oversights or slips. In this situation, if counsel represented both parties, we would fully expect that a fiat would be consented to, absent any prejudice. Unfortunately, this was not the only deadline missed by counsel and ideal practice was not modelled to Mr. Waddy as a result.”

The judgment does not mention that Carl Pelton was awarded the Corrections Exemplary Service Medal in 2017. He was a highly regarded civil servant. Waddy lost this appeal; his only consolation was that no costs were awarded.


John L. Hill practised and taught prison law until his retirement. He holds a J.D. from Queen’s and an LL.M. in constitutional law from Osgoode Hall. He is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books) and The Rest of the (True Crime) Story (AOS Publishing). Contact him at johnlornehill@hotmail.com.

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