Estate litigators frequently find themselves opposite self-represented parties. While many self-represented litigants attempt to engage constructively in the litigation process, others may refuse to engage entirely in an ill-considered attempt to evade the litigation. Letters go unanswered, scheduling requests are ignored, and procedural issues remain unresolved.
When that happens, counsel may be left wondering what steps can properly be taken to move the matter forward.
The answer lies in balancing two competing principles. Lawyers have professional obligations to deal fairly and courteously with self-represented litigants, but litigation cannot come to a standstill because one party refuses to engage. Ontario courts have repeatedly recognized that self-represented litigants are entitled to accommodation, but not exemption from the Rules of Civil Procedure (the “Rules”) or court orders.
Document Your Efforts
When correspondence is being ignored, documentation becomes critical.
Maintain a record of emails, letters, telephone messages, and follow-up attempts. Should questions later arise about notice, fairness, or delay, those records may become important evidence. Courts have recognized that communications with self-represented litigants can easily be misunderstood, making careful record-keeping essential.
Follow the Rules
A lack of response does not relieve counsel of procedural obligations.
If informal communication breaks down, formal service requirements must still be followed. Courts have awarded costs where a party’s failure to cooperate with service forced the opposing party to incur the expense of a motion.
Similarly, where a self-represented litigant’s silence begins to impede the progress of a proceeding, counsel may wish to seek case conference directions or other case management assistance. The Rules expressly empower judges and associate judges to make procedural directions designed to move litigation forward efficiently.
When Court Intervention Becomes Necessary
At some point, persistent non-responsiveness may require judicial intervention.
Ontario courts have emphasized that while self-represented litigants are entitled to reasonable accommodation, they remain obligated to comply with procedural rules and court orders. This principle is consistent with the Supreme Court of Canada’s endorsement of the Canadian Judicial Council’s Statement of Principles on Self‑Represented Litigants in Pintea v. Johns 2017 SCC 23.
A party’s decision to ignore the litigation process does not prevent the court from making directions, imposing deadlines, or awarding costs where appropriate.
In some circumstances, procedural consequences may arise automatically. For example, a failure to respond to a Request to Admit may result in deemed admissions under Rule 51.03(2) of the Rules.
Takeaway
While self-represented litigants are entitled to fairness and reasonable accommodation, they remain subject to the same procedural rules and court orders as any other party. Counsel should remain professional, document communication efforts, and ensure continued compliance with the Rules.