In June 2024, the Alberta Court of King’s Bench issued the decision Hawreschuk v The Owners: Condominium Plan No. 782 2678. The written decision is notable in that the presiding Justice Whitling issued guidance on both (i) what defines a “substantial step” in litigation for the purposes of Alberta Rules of Court Rule 4.33, and (ii) the Judiciary’s responsibilities when dealing with self-represented litigants.
In short, the decision stems from an action brought by Ms. Hawreschuk against The Owners: Condominium Plan No 782 2678 (the “Condominium”) in which she alleged that mould in common property areas caused her to suffer losses. The action was brought against both the Condominium as a corporate entity and individual board members who were sitting on the board at the time.
In October 2021, the individual board member defendants brought an application seeking the claim be dismissed against themselves. This application was granted February 2023. At that point the only remaining parties were Ms. Hawreschuk and the Condominium.
In July 2023 the Condominium filed an application seeking the action against it be dismissed for long delay pursuant to Rule 4.33, alleging that the last substantial step in the litigation against the Condominium was in December 2019 when Ms. Hawreschuk filed a request for trial. In their application the Condominium acknowledged the dismissal of the action against the board member defendants earlier in 2023, but argued that it was “not a material advance at all as regards the condo corporation. There were no factual issues involving the condo corp that were decided there”. The Court decided in the Condominium’s favour, dismissing Ms. Hawreschuk’s action.
The decision at hand is an appeal of that ruling. Ms. Hawreschuk raised several grounds of appeal including that she did not know the deadline as set out in rule 4.33 and she was given bad advice from friends with respect to it. The court dismissed these grounds of appeal on the basis that self-represented parties have a responsibility to familiarize themselves with the law, and ignorance is not a defence.
However, the court then took the unusual step of considering a ground of appeal not actually raised by Ms. Hawreschuk. In explaining this decision, the court advised that they believe doing so was “just and appropriate … since the Appellant is self-represented and since it is apparent from the Respondent’s submissions … that its counsel is aware of this issue.”
On this issue, the Court noted that case law such as Neitz v Jordan, 2015 ABQB 732, and M.H. v Roman Catholic Diocese of Calgary, 2020 ABQB 397 establish that a step which advances an action as a whole is sufficient to bar a 4.33 application, even if it does not advance the action against one specific defendant. As such Justice Whitling determined that the previous summary dismissal application, which dismissed the action against the board members, had identified the sole defendant in the litigation and therefore significantly advanced it, regardless of the Condominium’s role or participation in the application.
As such, this case adds to the jurisprudence surrounding rule 4.33 drop dead applications, making clearer what, and what does not, constitute a significant advance. However, potentially more notable was Justice Whitling’s decision to add a ground of appeal on behalf of Ms. Hawreschuk, and then decide in her favour on the basis of that ground.
Justice Whitling added a note “For the Judiciary” at the end of his decision speaking to this issue which appears intended to serve as a guide for how Judges are to deal with self-represented litigants. In that notice he reminds Judges that they have a “responsibility to inquire whether self-represented persons are aware of their procedural options and direct them to available information if they are not”. He goes on to advise that this responsibility could include actions ranging from explaining the relevant law, providing self-represented litigants with information about litigation and their rights, or assisting them with raising arguments before the court.
This obligation on the Judiciary runs parallel with lawyers’ own obligations under the Code of Conduct, which dictates that lawyers have a responsibility to be courteous, civil and act in good faith with those they deal with in the course of their practice, including self-represented parties.
As many lawyers regularly deal with self-represented parties, particularly in areas such as condominium law, this decision is a good reminder that the Court has significant discretion in how to conduct proceedings involving self-represented litigants.
