A case crossed my desk this week that clearly illustrates the challenges lawyers face when dealing with an unrepresented party, in this case, at a hearing at the Human Rights Tribunal of Ontario (the “Tribunal”). Luthra v CAPREIT Limited Partnership, 2015, HRTO 1658 (CanLII) is a decision of Adjudicator Jo-Anne Pickel, dated December 9, 2015.  At first reading, there seems to be nothing remarkable about this decision. It is short, and deals with the applicant’s termination of employment by the respondent after a very brief period of employment. The applicant brought an application to the Tribunal, and a hearing was held. The applicant did not meet the onus of proving her case under the Human Rights Code (the “Code”), and she lost.

A second more careful reading of the Adjudicator’s reasons, however, tell us more about what happens to the legal process when a person must advocate for themselves in a setting that is unfamiliar, and for which they do not have any specialized skill or experience. This is now the norm for many administrative tribunals.  As in the case here, there are consequences for the unrepresented applicant, opposing counsel and her client, as well as for the Adjudicator.

For example, Ms. Luthra, as the unrepresented party:

• Brought an application alleging discrimination based on “record of offences” thinking that this meant her disciplinary record at work, not a criminal record as set out in the Code;
• Had to ask the Adjudicator for permission to amend her application at the hearing, to set out discrimination based on disability;
• Nevertheless, failed to produce evidence that linked the harassment and discrimination she said she experienced to her former employer’s knowledge that she did in fact have a disability;
• Asserted as a ground of her complaint, that there was no place for her to sit on her first day of work, and that her employer should have been more forthcoming in arranging a workspace for her;
• Testified that she told her supervisor about “health and other issues” during the course of her employment, but did not mention this in her Application;
• Also provided evidence that she was unfairly blamed for the loss of certain cheques that were kept in an empty chocolate box, but did not link that to her disability; and
• In general, provided a narrative in which she said she was unfairly treated at work (which was disputed by the employer) but did not link the unfair treatment to the protections afforded to her under the Code.

In other words, asserted a case for which there appears to have been no factual or legal foundation.

The impact on the employer and its counsel is not set out in the decision as clearly. However, I think it is reasonable to imagine that in dealing with the unrepresented applicant they may have:

• Believed they incurred legal fees unnecessarily to respond to an application that was without merit;
• Experienced frustration at the length of the hearing, and in particular, any extra time that was needed to address the applicant’s inexperience and uncertainty in terms of process and substance of the law;
• Been dissatisfied that there was no screening mechanism before the applicant landed at the hearing itself;
• Felt obliged to assist the applicant in understanding the process, or may have been asked by the adjudicator to do so, even though they had an adverse interest to the applicant; and
• Counsel may have had a hard time explaining the length and expense of the process to her client, as well as why the client would not get any costs from the applicant when it won.

There are implications for the Adjudicator too. Again, this is not set out in the decision itself, but I would imagine the Adjudicator would have been called upon to:

• Adopt a more “activist role” in supporting the unrepresented party, while still striving to maintain balance and neutrality;
• Explain the process and the law in non-legal terms so that the applicant would understand;
• Display flexibility when dealing with the rules that govern the tribunal; and
• Ultimately allow a case to proceed before her that perhaps appeared very quickly to be without merit.

Measured against a legal proceeding when both parties are represented by counsel, this situation seems to have been less than optimal for everyone involved. The reality, however, is that self-represented litigants comprise up to 75% of the parties who appear in front of tribunals, according to the Society of Ontario Adjudicators and Regulators. The result is that adjudicators and counsel (usually for the employer) must accommodate, facilitate and assist people who are without lawyers every single day. This is the new world of advocacy that many of us face as employment lawyers.

Janice Rubin

About the Author: Toronto Employment Lawyer, Janice Rubin, is a co-founder and co-managing partner at Rubin Thomlinson LLP. Janice regularly appears on Best Lawyers and Leading Practioners lists in Canada and is considered one of the country’s foremost experts on employment law.