In Sae-Bin Im v BMO Investorline Inc., a self-represented litigant sought leave to discontinue his action per Rule 23.01(2) of the Rules of Civil Procedure on the grounds that he was under a disability. While the self-represented litigant had issued a notice of action within two years of when he says he discovered the claim, he did not serve the statement of claim within 30 days nor did he seek to extend the time to file a statement of claim. He decided to discontinue the action as he believed that commencing an application would be a more expeditious means to resolve his claim. None of the defendants responded to the motion.
In deciding how to address the motion, Madam Justice Kristjanson considered a judge's obligations to self-represented litigants, noting that although a judge "cannot become an advocate, provide legal advice, advance new argument [...] or advise on strategy", judges do have a responsibility to ensure that self-represented persons are provided with "fair access and equal treatment by the courts, and to facilitate access to justice." She also cited from the Canadian Judicial Council's "Statement of Principles on Self-Represented Litigants and Accused Persons" in determining how best to deal with the matter before her.
In the circumstances, Justice Kristjanson determined that as the self-represented litigant was about to make a "critical choice" based on a "clear misunderstanding of the law and procedure", she had a responsibility as a judge "to explain the relevant law and its implications, remaining sensitive to the interests of the respondents."
In the balance of her decision, Justice Kristjanson explained to the self-represented litigant the limitation period issues with his strategy and advised that although she was not commenting "on the likely success of a motion..." the litigant did have an existing right to seek leave to file a late statement of claim. Discontinuing his present action would result in the loss of that existing procedural right. He could also then convert the action to an application if he was successful on his motion to file a statement of claim.
Justice Kristjanson also noted that there was nothing in the materials filed that indicated the self-represented litigant was incapable, and therefore, he was not a person under a disability. As such, he did not require the leave of the court to discontinue his action and attempt to proceed by way of application. Justice Kristjanson declined to grant leave to discontinue the action and left it to the self-represented litigant to decide whether to discontinue the action and commence an application, or to proceed with a motion for late filing of a statement of claim. She encouraged the self-represented litigant to seek legal advice on that issue.
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