



COURT OF APPEAL FOR ONTARIO

CITATION: Grand River Conservation Authority
v. Ramdas, 2021 ONCA 815

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)



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
[1]

and an associated regulation
[2]
, 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 appellants
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
releas
ed 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 Authoritys responsibility, having
previously applied for permits, and that she and Ms. McDonald were aware of the
Conservation Authoritys 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 judges 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 courts obligations to self-represented
litigants are outlined in the Canadian Judicial Councils 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.
[3]

[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
[4]
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 judges 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
Ontarios
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 Canadas
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 clients 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 clients 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.
[5]
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.





[1]

Conservation Authorities Act
, R.S.O. 1990, c. C.27, as amended.



[2]

Particularly
by acting contrary to ss. 2(1)
and 5 of the
Grand River Conservation Authority: Regulation of Development,
Interference With Wetlands and Alterations to Shorelines and Watercourses
,
O. Reg 150/06.



[3]
There has been a wealth of judicial experience
with
self-represented litigants
since
Pintea
: see
Julie Macfarlane and Kaila Scarrow,
Pintea v Johns: 18 Months Later
(Paper
5) (The Self-Represented Litigants Case Law Database: Occasional Research Series,
2018) and Anjanee Naidu and Julie Macfarlane,
Pintea v Johns: An Updated
Commentary
(Paper 7) (The Self-Represented Litigants Case Law Database: Occasional
Research Series, 2021). Although the CJC recently released three handbooks to
assist self-represented litigants with court appearances, the
Statement of

Principles
itself has not been altered since 2006. In light of the
growing prevalence of self-represented litigants, not to mention the impact of
the COVID-19 pandemic on the justice system, it might be time for the
Statement
of

Principles
to be updated to provide additional guidance as to how
judges ought to deal with self-represented litigants in the courtroom. See also
Morwald-Benevides v. Benevides
, 2019 ONCA 1023, 148 O.R. (3d) 305 and
Girao v. Cunningham
,
2020 ONCA 260, 2 C.C.L.I. (6th) 15.



[4]
See Michelle Flaherty, Best Practices in Active Adjudication
(2015) 28 Can. J. Admin. L. & Prac. 291; Michelle Flaherty, Self-Represented
Litigants, Active Adjudication and the Perception of Bias: Issues in
Administrative Law (2015) 38 Dalhousie L.J. 119; and Jula Hughes and Philip
Bryden, Implications of Case Management and Active Adjudication for Judicial
Disqualification (2017) 54 Alta. L. Rev. 849.



[5]
In all cases, lawyers acting as advocates are obligated to treat
the court with candour and fairness. In addition, it is well understood that
Crown prosecutors have elevated duties: see
Boucher v. The Queen
, [1955]
S.C.R. 16. However, some commentators suggest that public sector lawyers may
also have elevated duties: see Adam M. Dodek, Lawyering at the Intersection of
Public Law and Legal Ethics: Government Lawyers as Custodians of the Rule of
Law (2010) 33:1 Dal. L.J. 1 and John Mark Keyes, Loyalty, Legality and Public
Sector Lawyers (2019) 97:1 Can. Bar Rev. 129, at pp.138-43. For an overview of
the scholarship on Canadian legal ethics for government lawyers, see Andrew
Flavelle Martin, Where Are We Going? The Past and Future of Canadian
Scholarship on Legal Ethics for Government Lawyers (2021) 99:2 Can. Bar. Rev.
322.



