In yesterday’s blog, I provided a recap of the OBA event, an Evening with Estate Judges. Part of my recap touched on the fact that the court continues to look for volunteers to act as amicus curiae as part of the Estate List Amicus Pilot Program.

Today, I thought I would delve into what amicus curiae and the pilot program are.

In its most simple and direct definition, amicus curiae means, “friend of the court”. However, the role of amicus has changed over time. Some descriptions include “a friend of the Court. A person who calls the attention of the Court to some point of law or fact which would appear to have been overlooked,” and, “barristers who assist the court, usually at the court’s request, and are disinterested” and “a person, usually a barrister who, with the court’s permission, may advise the court on a point of law or on a matter of practice.”

The amicus’s sole “client” is the court, all that an amicus does is in the public interest for the benefit of the court in the correct disposal of the case.

The Supreme Court of Canada set the precedent governing the appointment of amicus in its 2013 decision, Ontario v Criminal Lawyers’ Association of Ontario, 2013 SCC 43 (“CLA”), where it set out the following:

• Courts may appoint amicus only when they require assistance to ensure the orderly conduct of proceedings and the availability of relevant submissions
• Once appointed, the amicus is bound by a duty of loyalty and integrity to the court and not to any of the parties to the proceedings
• There are situations where the appointment of amicus might be warranted, such as when a self-represented party is ungovernable, refuses to participate, disrupts proceedings, or who’s lack of sophistication risks injustice

The SCC set a two-tiered test for appointing amicus:

1. The assistance of amicus must be essential to the judge discharging his or her judicial functions in the case at hand, and
2. The authority to appoint amicus should be used sparingly and with caution, in response to specific and exceptional circumstances.

Some further guiding factors were provided by the Court in CLA:

• A party has a right to self-represent, however, the trial judge is responsible for ensuring that the trial progresses reasonably
• Amicus may assist in the presentation of evidence, but they cannot control a party’s litigation strategy
• Because amicus does not represent a party, the party may not discharge amicus
• The trial judge must consider whether he or she can personally provide sufficient guidance to an unrepresented party in the circumstances of the cases to permit a fair and orderly trial without the assistance of amicus
• The order appointing amicus must be clear, detailed and precise in specifying the scope of amicus’s duties. The activities of amicus must be actively monitored by the trial judge to prevent mission creep, so that amicus stays within the defined limits.

The Amicus Pilot Program is intended to improve the efficiency and effectiveness of Ontario’s civil courts by providing access to volunteer counsel when requested. The Pilot Program on the Estates list is being coordinated by Matthew Rendely and the tandem Pilot Program on the Commercial List, is led by Daniel Schwartz, Rachel Fielding, Jeremy Opolsky and Alexandra Shelley.

The Estate List Amicus Pilot Program is in its early days, however, the judges of the Estate List have shared that the cases that have proceeded with amicus have been of immeasurable assistance to the court, so much so that they continue to look for more volunteers. Thanks for reading!