By CFI Staff
First posted: Thursday, November 19, 2015 2:48 PM ET
Updated: Thursday, December 03, 2015 11:58 PM ET
An ordinary young Canadian (the “complainant”), who allegedly suffered from the conduct of an insurance company while claiming health benefits under an insurance policy, filed a complaint to the Privacy Commissioner. Upon investigation, the office of the Commissioner issued a “report of findings” reading, among other things, that they “have concluded that the matter is well-founded and conditionally resolved.”
Under the law, the complainant is entitled to seek remedy in the Federal Court of Canada. The quoted amount for legal representation of the complainant by one law firm is $32,939. The awards which may be applicable to the complainant are limited to $5,000. Only for preparing an application (which should take a legal professional 4 to 8 hours), the law firm charges $10,000.00 (Click here).
Matters to also be noted
- Before judges of the Federal Court of Appeal and the Federal Court begin to perform their duties as judges, they take an oath that they will duly and faithfully execute their powers and trusts as judges to the best of their skill and knowledge.
- Principle 6 of the “Ethical Principles for Judges,” published by the Canadian Judicial Council, requires judges to be impartial “with respect to their decisions and decisionmaking.”
- Judges make a final determination of a matter in a proceeding on the basis of facts and arguments properly presented by each party before them. For that reason, skills and knowledge of how to use the laws and procedures when presenting or disputing a case before a judge of the court are crucial to the court’s final decision.
- It has long been recognized by legal professionals that in a proceeding where one of the parties is represented, the other party is equally entitled to representation – the right of representation is meant to ensure procedural equality and fairness.
- The principle of procedural equality is a fundamental and essential part of natural justice (due process).
- Principle 5 of the “Ethical Principles for Judges,” states that “Judges should conduct themselves and proceedings before them so as to assure equality according to law”.
Due to complainant’s lack of adequate ability to represent herself, her father asked, at the very beginning of the lawsuit (the “proceeding”), the Federal Court to allow him to represent her. The grounds for the request to the court were that:
- Representation of the complainant by a lawyer would cost her as much as 6 (six) times the amount of the possible remedy – $32,939 and up to $5,000, respectively;
- The complainant’s representation by a lawyer would cost her as much as 6 (six) times the amount of the possible remedy – $32,939 and up to $5,000, respectively;
- Court’s refusal to permit such representation would violate the fundamental principle of procedural equality because it would place the complainant in gross legal disadvantage over the insurer who is being represented by a lawyer that is so prejudicial that it would predetermine the outcome of the case and thus force the complainant to immediately withdraw her lawsuit.
A prothonotary (a judge with less authority) refused to grant the request and instead made the complainant act as self-represented. Her order was appealed to a judge from the court and he confirmed the order.
The order of the prothonotary and the appeal judge suggests that making a layperson a self-represented litigant, meaning that she has to argue her case in opposition to a knowledgeable, trained, skilled and an experienced lawyer helped by his legal team is just and fair: or in other words, pitting a professionally unskilled litigant who lacks adequate legal knowledge and experience in a legal battle against a seasoned lawyer and his legal team is consistent with equality according to law – the principle of procedural equality and due process.
Clearly, the case does raise very serious, unavoidable, and factually driven questions of great interest and importance to all Canadians. For example:
- WHY a litigant whose legal rights are being allegedly seriously hurt by a financially powerful party and who cannot afford a lawyer and is also unable to adequately represent her case is not permitted by the court to be represented by another non-lawyer person and is made, instead, a self-represented litigant as the only “reasonable” option for the complainant given by the court if she wishes to seek justice through the justice system?
- WHY not the other way around: making the respondent employee of the financially powerful organization to act as self-represented and permit the complainant to be represented by a person of her choice?
- If a judge sincerely thinks that a complainant lay-person can properly represent herself in a proceeding, WHY is not the respondent individual of the opposing party also made self-represented so as to “assure equality according to law”?
- WHY is the principle of procedural equality, crucial to due process, not upheld and applied?
- WHY does the court, where justice is supposed to be served, allow financially powerful parties to unjustly gain decisive legal advantage over a made by the court self-represented complainant?
- IS THERE conspiracy in the Federal Court to keep Canadians who cannot afford a lawyer away from it because (1) their cases create extra work for the administration of the court, (2) the administration is unwilling to spend from its government’s funding for these Canadians, and (3) this substantially large group of Canadians has no means of holding powerful officers of the court accountable for dismissive or contemptuous conduct towards them and the rule of law?
The order of the judge from the Federal Court is appealed to the Federal Court of Appeal and will be decided by a panel of three judges.
The grounds and reasons why the order under appeal is clearly wrong have been presented to the appeal court and can be viewed through the links bellow::
The issues in this case are not “About Me” issues. They are “About You” and “About All of Us.” Every one has a parent and grandparent: next time it could be your child or grandchild.
Your effort to send a link to this website to as many people as you can is greatly appreciated.
To view the Web page created on GoFundMe in connection with this case, click on the link bellow:
Justice: My battle with the Federal Court for the constitutional rights of ordinary Canadians
