“Under Rule 25(19)(e) of the FLR, if the moving party has provided a satisfactory reason for being unable to attend in court, the court may exercise its discretion and set aside the decision made all or in part.
As emphasized by the Court of Appeal in Gray Rule 25(19)(e) of the FLR must be construed in light of the primary objective set out in Rules 2(2) and 2(3). Rule 2(3) states:
Dealing with a case justly includes,
(a) ensuring that the procedure is fair to all parties;
(b) saving expense and time;
(c) dealing with the case in ways that are appropriate to its importance and complexity; and
(d) giving appropriate court resources to the case while taking account of the need to give resources to other cases.
Where, as is more often than not the case, a party is self represented, the court must also be mindful of the Statement of Principles on Self-represented Litigants and Accused Persons (2006) established by the Canadian Judicial Council and endorsed by the Supreme Court of Canada in the recent decision of Pintea v. Johns 2017 SCC 23. These principles include the following:
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- Access to justice for self-represented persons requires all aspects of the court process to be, as much as possible, open, transparent, clearly defined, simple, convenient and accommodating.
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- Judges and court administrators should do whatever is possible to provide a fair and impartial process and prevent an unfair disadvantage to self-represented persons.
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- Self-represented persons should not be denied relief on the basis of a minor or easily rectified deficiency in their case.
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- Judges and court administrators have no obligation to assist a self-represented person who is disrespectful, frivolous, unreasonable, vexatious, abusive, or making no reasonable effort to prepare their own case.
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- Judges have a responsibility to inquire whether self-represented persons are aware of their procedural options, and to direct them to available information if they are not. Depending on the circumstances and nature of the case, judges may explain the relevant law in the case and its implications, before the self-represented person makes critical choices.
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- Judges should ensure that procedural and evidentiary rules are not used to unjustly hinder the legal interests of self-represented persons.”
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