Court of Appeal for Ontario

Date: 20211117 Docket: C68376 & C68377

Lauwers, Harvison Young and Sossin JJ.A.

Docket: C68376

Between

Grand River Conservation Authority Applicant (Respondent)

and

Vidhya Ramdas Respondent (Appellant)

Docket: C68377

And Between

Township of Amaranth Applicant (Respondent)

and

Vidhya Ramdas Respondent (Appellant)

Counsel: Hashim Syed, for the appellant Colin A. Brown, for the respondent Grand River Conservation Authority David N. Germain, for the respondent Township of Amaranth

Heard: October 1, 2021 by video conference

On appeal from the orders of Justice M.J. Lucille Shaw of the Superior Court of Justice, dated April 21, 2020, with reasons reported at 2020 ONSC 2426 and 2020 ONSC 2428.

Lauwers J.A.:

A. Overview

[1] Ms. Ramdas appeals two orders for permanent injunctions against her in respect of work on her property she undertook without the requisite permits. She argues that the application judge erred in not granting an adjournment and in failing to require the matters in issue to proceed to trial.

[2] For the reasons that follow, I would dismiss the appeal.

B. The Factual Context

[3] Ms. Ramdas owns a property in the Township of Amaranth, located in Dufferin County, on the edge of a wetland regulated by the Grand River Conservation Authority. Her basement leaked water and she brought in a contractor to repair the leak. The work was started without a permit from the Township or from the Conservation Authority. The contractor removed a significant amount of peat and replaced it with fill in an area that extended well beyond the footprint of the house.

[4] The work came to the attention of the Conservation Authority and the Township. Two staff members of the Conservation Authority went to the property on July 5, 2018 and observed an excavator, dump trucks, a fill pile and several workers. A Conservation Authority staff member asked the workers to stop, but they did not. On July 13, 2018, Ms. Ramdas was charged with violating s. 28(16) of the Conservation Authorities Act and an associated regulation, which together prohibit developing a wetland without a permit from the Conservation Authority. Ms. Ramdas was served on July 19, 2018 with a summons to appear in court. The work continued despite the charges.

[5] A by-law enforcement officer employed by the County of Dufferin also investigated a complaint about the property on July 11, 2018. He observed the dump truck, an excavator and construction workers. He delivered a stop work order and a remedial order to Ms. Ramdas on July 16, 2018. The order prohibited Ms. Ramdas from continuing the work and required her to restore the land to its original condition.

[6] On August 11, 2018, the by-law enforcement officer went to the property again in response to complaints about ongoing fill activities. One of the contractors on site informed him that the County of Dufferin had issued a building permit to Ms. Ramdas to fix the foundation of her house. However, this permit did not authorize excavation or filling activities beyond the foundation, which were the impugned actions.

[7] The Conservation Authority and the Township then brought applications for injunctions to prevent Ms. Ramdas from continuing the work. Lemon J. granted interim injunctions on August 27, 2018. Thereafter, proceedings were adjourned several times. By order dated June 3, 2019, Coroza J. (as he then was) ordered that no further adjournments would be granted without leave and required Ms. Ramdas to file responding materials by September 30, 2019.

C. The Applications

[8] The applications for permanent injunctions came before the application judge on November 12, 2019. Although the appellant’s previous counsel served responding materials on October 30, 2018, they had not been filed nor was a factum served or filed by Ms. Ramdas. The application judge did not grant a further adjournment and the hearing proceeded without evidence from Ms. Ramdas. Upon hearing argument by counsel for the Conservation Authority and for the Township, and submissions from Ms. Ramdas, she granted permanent injunctions.

[9] The order in favour of the Conservation Authority simply obliges Ms. Ramdas to comply with the law. It provides:

THIS COURT ORDERS that a permanent injunction is granted prohibiting Ms. Ramdas from using the property otherwise than in accordance with O.Reg. 150/06. In particular, Ms. Ramdas is prevented from proscribing any interference with a wetland by the removal of material, grading, or depositing of fill in the regulated area, unless permission for any such activity has first been obtained from the GRCA.

[10] The order in favour of the Township is more extensive and requires Ms. Ramdas to remediate the property and to reimburse the Township for its enforcement expenses and, should she fail to comply with the order, to pay its remediation costs.

D. The Related Prosecution

[11] Before these appeals were argued, Ms. Ramdas and her contractor, Tina McDonald, were tried together for offences under the Conservation Authorities Act by Justice of the Peace Fisher-Grant. They were convicted of the strict liability offences of dumping and removing material without the authorization of a development permit in the wetland areas within the jurisdiction of the Conservation Authority. The reasons for decision were released on December 15, 2020. The trial justice found that Ms. Ramdas and Ms. McDonald had not established the defence of due diligence. She found that Ms. Ramdas was aware of the nature of the property and the Conservation Authority’s responsibility, having previously applied for permits, and that she and Ms. McDonald were aware of the Conservation Authority’s assertion that a permit was needed, but chose to continue the work nonetheless. The trial justice found it “difficult to accept that… in order to deal with water issues they needed to disturb the area some 63.984 metres away from the home.” She added: “Even if this were true, this did not obviate their responsibility from obtaining a permit from the GRCA.” Ms. Ramdas served a notice of appeal with respect to the convictions but it is not clear that the appeal is being actively pursued.

E. The Issues

[12] Ms. Ramdas raises two arguments on the appeals. The first is that the application judge improperly denied her request for an adjournment. Because the interim injunction had been in place for more than a year, and Ms. Ramdas had complied with it, it was obvious that another adjournment would not cause prejudice. However, the application judge did not become aware of the interim injunction until after she had decided to refuse the adjournment, and she did not revisit the issue.

[13] Second, counsel for Ms. Ramdas argues that it was inappropriate for the Conservation Authority and the Township to proceed by way of application because there were contested facts. These were set out in the material that previous counsel for Ms. Ramdas had served on the Conservation Authority and the Township but had not filed. Counsel for Ms. Ramdas submits that counsel for the Conservation Authority and the Township were under a duty to advise the application judge that even though Ms. Ramdas had not filed the material, she had served it. (Regrettably, counsel for Ms. Ramdas did not file with this court the material Ms. Ramdas’ former counsel had served on the Conservation Authority and the Township.)

F. Analysis

[14] A judge has broad discretion as to whether to grant an adjournment: Dhatt v. Beer, 2021 ONCA 137, 68 C.P.C. (8th) 128, at para. 10, citing Khimji v. Dhanani (2004), 69 O.R. (3d) 790 (C.A.). This court is highly deferential and will set aside adjournment refusals in limited situations: Khimji, at para. 14, per Laskin J.A. (dissenting, but not on this point).

[15] Although the application judge acted on the basis that Ms. Ramdas had requested an adjournment, that request was not clear on the transcript. Further, Ms. Ramdas did not tell the application judge what she would do with an adjournment if granted.

[16] I see no basis for appellate intervention with the application judge’s adjournment refusal nor on the merits. The hearing was peremptory to Ms. Ramdas. The evidence on which the respondents rely is overwhelming. While there might be conflicts on points of credibility as to who said what to whom and when, there is no doubt that Ms. Ramdas proceeded with the excavations on her property without the requisite permits. Requiring the application to proceed anew, by way of either the trial of an issue or the application, would serve no purpose. To repeat, I would dismiss the appeal.

G. Some Observations

[17] While not necessary for the merits disposition of this appeal, I make several observations about the process as it unfolded in this case. Ms. Ramdas was self-represented before the application judge. This is an increasing fact of life in Ontario courts, one which judges must accommodate.

[18] Self-represented litigants are “expected to familiarize themselves with the relevant legal practices and procedures pertaining to their case and respect the court process”: Dhatt, at para. 27. However, the court also has a duty to ensure that self-represented litigants receive a fair hearing. The court’s obligations to self-represented litigants are outlined in the Canadian Judicial Council’s 2006 Statement of Principles on Self-represented Litigants and Accused Persons, which was endorsed by the Supreme Court in Pintea v. Johns, 2017 SCC 23, [2017] 1 S.C.R. 470, at para. 4.

[19] I want to reflect on three specific points. First, judges have a natural tendency to rely on counsel for a clear and accurate understanding of where things stand in the litigation. But judges must also permit self-represented parties to explain how they understand the status quo. This will help avoid any impression of favouritism or bias.

[20] Second, self-represented individuals often do not fully understand the difference between evidence and submissions, even when it is well explained by the trial judge. Such a party might inadvertently give evidence in the course of making submissions. This is not admissible evidence on which the judge can rely unless it is given under oath. One option for the judge would be to swear in the party and allow submissions to be made from the witness box, and to permit cross-examination on the evidentiary parts: see Johansson v. Janssen, 2021 BCCA 190, 50 B.C.L.R. (6th) 122, at para. 33. Doing this would permit the judge to make findings on the evidence where appropriate. This is a tool judges might wish to use in applications or in ordinary motions on a motions day (where such evidence is necessary and otherwise admissible). In this case, the application judge gave thought to proceeding that way but ultimately did not permit Ms. Ramdas to provide viva voce evidence.

[21] It is also open to a judge to engage in active adjudication in order to obtain relevant evidence from a self-represented party who might not fully understand what is relevant and what is not. That said, the principle of impartiality constrains a judge’s obligation to help make the judicial process accessible to self-represented parties. A judge must not cross the line between assisting self-represented litigants in the presentation of their evidence and becoming their advocate: Gardaworld Cash Services Canada Corporation v. Smith, 2020 FC 1108, at para. 36, citing Malton v. Attia, 2016 ABCA 130, 35 Alta. L.R. (6th) 27, at para. 3.

[22] Third, I turn to the obligations of counsel who are opposing a self-represented party. As officers of the court, lawyers have a duty to assist both self-represented litigants and the court in order to ensure that justice is not only done but is seen to be done. As I noted in Girao v. Cunningham, 2020 ONCA 260, 2 C.C.L.I. (6th) 15, at para. 152, lawyers’ obligations towards self-represented litigants are fairly limited under the Law Society of Ontario’s Rules of Professional Conduct: see Law Society of Ontario, Rules of Professional Conduct, Toronto: Law Society of Ontario, 2000, (as amended), ch. 7, s. 7.2-9. However, there are also the more general duties lawyers have when acting as advocates, including the obligation to treat tribunals with candour, fairness, courtesy, and respect: see Rules of Professional Conduct, ch. 5, s. 5.1-1 (which tracks the Federation of Law Societies of Canada’s Model Code of Professional Conduct, ch. 5, s. 5.1-1). In situations where opposing interests are not represented – for example in motions brought without notice or in uncontested matters – the Rules of Professional Conduct direct lawyers to take particular care to present their client’s case in a candid and comprehensive manner to ensure a tribunal is not misled: ch. 5, s. 5.1-1, commentary 6. This guidance should also apply where the presence of a self-represented litigant might impede the full proof and argument expected when both sides are represented.

[23] Another helpful source of guidance for counsel opposite a self-represented party is the American College of Trial Lawyers’ Canadian Code of Conduct for Trial Lawyers Involved in Civil Actions Involving Unrepresented Litigants, Irvine: American College of Trial Lawyers, 2009. The Code of Conduct is intended to supplement professional conduct rules and the Statement of Principles, and directs lawyers to:

• Not attempt to derive benefit for clients from the fact that the opposing litigant is self-represented (s. 9(a));
• Be aware of their duty to the court in considering reasonable requests for adjournments or waivers of procedural formalities when there is no real prejudice to their client’s rights or interests (s. 9(b)); and
• Advise the court of all material communications and agreements reached with the self-represented litigant (s. 12(c)).

This is good advice, and counsel who are opposite self-represented litigants would benefit from the Code of Conduct’s guidance.

[24] In this case, counsel for the Conservation Authority and the Township were remiss in not alerting the application judge on a timely basis that interim injunctions were in place, with which Ms. Ramdas had complied. Further, in response to inquiries from the application judge about whether Ms. Ramdas had filed materials, counsel ought to have advised the application judge that although responding materials had not been filed, Ms. Ramdas had served them. The application judge was left with the wrong impression about the extent to which Ms. Ramdas had not complied with previous judicial directions.

H. Disposition

[25] I would dismiss the appeal. In light of the foregoing concerns with the information provided to the application judge, I would decline to award costs on the appeal.

Released: November 17, 2021 “P.L.” “P. Lauwers J.A.” “I agree. Harvison Young J.A.” “I agree. Sossin J.A.”