Counsels’ Duty to the Court and Role in the Proper Administration of Justice

Two recent SCJ decisions are, in my view, examples of counsel failing in different aspects of their duty to the court and, as such impeding, or at least not assisting, the judge in the proper administration of justice.

Others (who are practising lawyers, I suspect) may have different views on whether the counsel involved in these cases did anything they ought not to have done or did not do something they ought to have done. If you do, perhaps you should take a few moments to consider why you you disagree and respond.

I am not going to discuss the merits of either of these decisions nor do I think we should because that isn’t the point.

In each case, I have formed my opinion on what is apparent from the reasons with one exception which I will indicate.

Wise v Abbott Laboratories, Limited, 2016 ONSC 7275 (CanLII)

This case raises the issue – NOT THE PROBLEM – of keeping current with the spate of decisions constantly being released, even in one’s own jurisdiction, of arguably relevant decisions that are released between the time argument ends and the reasons in the lawyers’ own case are released. Wise makes the issue starker because the new decision was a Supreme Court of Canada decision which, on its face, dealt with an issue that had to have been argued in Wise. 

Wise is a defendants’ motion for summary judgment to dismiss a not-yet-certified class action. The motion was argued over 6 days in the latter part of Sept 2016 before Perell J. Reasons were released on November 23, 2016.

One of the significant issues was the use of statistics to prove aspects of causation.

That issue had been recently canvassed – it was central to the decision – in Benhaim v. St‑Germain, 2016 SCC 48 (CanLII), <http://canlii.ca/t/gvk2h>. Benhaim was released on Nov 10.

Benhaim is not mentioned in the Wise reasons. As I read Wise, my suspicion grew that this was not an oversight by Perell J. Rather it had not been put to him and he was not aware of it.

I have been advised by an unimpeachable source that Perell J was not advised of it and that he was not aware of it. (I thought I ought to confirm it but that confirmation merely confirmed my suspicions.)

The Benhaim decision was readily available to counsel. For example, any one subscribing to the SCC’s email or RSS services would have known it was coming a few days before its release and received notice of its release as would anyone subscribing to the free, wonderful, Supreme Advocacy letter provided by Eugene Meehan (emeehan@supremeadvocacy.ca) and his partners and associates at Supreme Advocacy LLP / SRL. It’s my view that any counsel practising any form of civil litigation in Canada has a duty to the court, to the proper administration of justice, let alone to his or her client, to subscribe to a service such as the Supreme Advocacy letter. After all, the SCC is the highest court in Canada and has the last word (in this life) … well, except for Parliament, of course … on matters within its competence. (For what it is worth, that is true even in British Columbia; but that is an issue we don’t have to go into, here.)

Given that, I ask myself: how did it happen that Justice Perell was not advised by counsel of the existence of Benhaim? I do not impute any improper motives to anybody. Accidents happen. I merely ask about one that seemingly should not have happened: how and why?

Perhaps Benhaim would not have made a difference to the result. Perhaps it would have. Perhaps it would not have affected anything he wrote. Perhaps it would have.

I am going to guess that Justice Perell is not yet functus.

I leave it to readers to speculate on the consequences.

All I will add is that, were I still practising in Ontario, I would not want to have to explain the situation to Justice Perell. Indeed, absent a good answer, I might safely assume that Justice Perell might be less inclined to give me the benefit of the doubt (where that might be appropriate), or even always start from the assumption that he should assume I am being entirely candid with him (within the limits of what I am entitled to do as counsel for a litigant). That’s not a situation I would want to find myself in in front of a senior SCJ judge. Judges, after all, talk. Some of us are old enough to remember the commercial about the stockbroker company which was, in substance, when X talks people listen.

Perell J is such a judge, in my view.

Mars Canada Inc. v Bemco Cash & Carry Inc., 2016 ONSC 7201 (CanLII)

The conclusion I draw from the reasons is that this case was only about money by the time it reached the court. Justice Myers’ reasons make that clear enough. This wasn’t the first time the parties had been to court over the subject matter the dispute between them.

In my opinion, the reasons show that both counsel, in essence, made no attempt to narrow the issues that Justice Myers was asked to decide even though, when one reads the reasons, counsel ought to have known that much of what was before him wasn’t germane to the issues he was asked to decide. Instead, again based JUST on the reasons, it appears that counsel, in essence, threw “everything – including the “kitchen sink” – (so to speak) against the judicial fan ( so to speak) hoping the judge would sort it out in some manner that would be to their respective clients’ advantage

Again as I read the reasons, no attempt was made by counsel to restrict argument to what mattered to the only issue that was left: how much should B pay M and the basis for determining that.

As it happened, counsel drew a knowledgeable judge. Most readers know that that doesn’t always happen.

Informed readers (that is lawyers) might ask why experienced counsel, in this case, thought it appropriate to argue the case as they did.

I’m reminded of something I’m sure was told us back when I articled, long ago in the last millennium. Counsel aren’t their clients “sock-puppets”.

YMMV, of course. But, if it does, I suggest you are wrong.

Cheers,
David Cheifetz