Self-represented litigants not exempt from rules of court

By April Cunningham, Associate Editor

A recent decision by the Yukon Court of Appeal is once again drawing attention to the need for self-represented litigants to comply with rules of evidence and follow court processes, says Toronto family lawyer Gary Joseph.

In Murphy v. Szulinszky, 2016 YKCA 16 (CanLII), the Court of Appeal ruled the husband did not meet the test to bring fresh evidence in his appeal regarding the division of family assets.

It was clear to the court that the husband, who was self-represented, did not understand the purpose of an appeal, says Joseph, managing partner of MacDonald & Partners LLP.

“Even though Mr. Szulinszky is a self-represented litigant that does not mean that he is exempt from the law, the rules of evidence or the rules of procedure,” the panel of judges write in the decision. “Self-represented litigants must, of course, be treated fairly. At the same time, courts have a duty to ensure that fairness is extended to all parties.”

Joseph says it’s important that the rules apply to all parties, including self-reps.

“I would think this view as articulated by the Yukon Court of Appeal is becoming more prevalent among the bench,” he tells “I have witnessed some disasters that take place in court with self-reps who don’t know the rules of evidence or the rules of procedure.

“Those who want to more fully accommodate self-reps by ignoring or diminishing the importance of rules of evidence and rules of procedure will ultimately create absolute chaos in our courts.”

Joseph says the rules are designed to bring rationality, order and predictability to the court process.

“To suggest otherwise or to suggest one side should not have strict application while the other does is immensely unfair,” he says. “It only encourages unpredictability and unreliability in the court judgments.”

Joseph says the kind of motion brought forward by the husband in this case — which demonstrates a failure to understand the purpose of an appeal court — happens in Toronto area courts every day.

While it’s not impossible for fresh evidence to be received by an appeal court, but in this case, it was clear the husband had little understanding of the situation, he says.

“An appeal is neither an opportunity to have the case re-tried nor a second opportunity for the parties to present evidence,” the decision reads. “On the contrary, the admission of fresh evidence on appeal is an exceptional measure.”

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