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| firm:law:court-procedure:solicitor-duty [2024/07/25 19:24] – adam | firm:law:court-procedure:solicitor-duty [2024/07/26 15:31] (current) – adam |
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| ==== Tangent about legal history ==== | ===== Tangent about legal history ===== |
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| ===== Specific duties ===== | ===== Duty of candour ===== |
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| ==== Duty of candour ==== | |
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| The Law Society of Ontario's //Rules of Professional Conduct// require barristers and solicitors to be candid with the courts and tribunals before which they appear. This duty is owed to the court or tribunal because counsel are officers of the courts. Commentary to [[https://lso.ca/about-lso/legislation-rules/rules-of-professional-conduct/chapter-5|rule 5.1]] makes the LSO's expectation plain: | The Law Society of Ontario's //Rules of Professional Conduct// require barristers and solicitors to be candid with the courts and tribunals before which they appear. This duty is owed to the court or tribunal because counsel are officers of the courts. Commentary to [[https://lso.ca/about-lso/legislation-rules/rules-of-professional-conduct/chapter-5|rule 5.1]] makes the LSO's expectation plain: |
| ''[6] When opposing interests are not represented, for example, in without notice or uncontested matters or in other situations in which the full proof and argument inherent in the adversarial system cannot be achieved, the lawyer must take particular care to be accurate, candid and comprehensive in presenting the client's case so as to ensure that the tribunal is not misled.'' | ''[6] When opposing interests are not represented, for example, in without notice or uncontested matters or in other situations in which the full proof and argument inherent in the adversarial system cannot be achieved, the lawyer must take particular care to be accurate, candid and comprehensive in presenting the client's case so as to ensure that the tribunal is not misled.'' |
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| Courts have found that the duty of candour extends to counsel's clients, notably with respect to the continuing obligation to produce freshly discovered relevant information in the course of civil proceedings. This rule is taken one step further in the //Rules of Civil Procedure//. Rules [[https://www.ontario.ca/laws/regulation/900194#BK369|37.14]] and [[https://www.ontario.ca/laws/regulation/900194#BK385|38.11]] allow the Court to set aside orders made when an opposing party does not appear or cannot be found. When explaining the scope of the Court's power to set aside orders under these rules, the courts have said that | Courts have found that the duty of candour extends to counsel's clients, notably with respect to the continuing obligation to produce freshly discovered relevant information in the course of civil proceedings ([[https://canlii.ca/t/1qddg#par53|Caldwell v. Caldwell, 2007 CanLII 1913 (ON SC), para. 53]]). This rule is taken one step further in the //Rules of Civil Procedure//. Rules [[https://www.ontario.ca/laws/regulation/900194#BK369|37.14]] and [[https://www.ontario.ca/laws/regulation/900194#BK385|38.11]] allow the Court to set aside orders made when an opposing party does not appear or cannot be found. When explaining the scope of the Court's power to set aside orders under these rules, the courts have said that |
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| ''A party who seeks relief from the court in proceedings without notice is obliged to make full and fair disclosure of all material facts. This is a common law rule that is enshrined in rule 39.01(6). See also Sangster v. Sangster, 2003 CanLII 48248 (ON CA), [2003] O.J. No. 69 (C.A.), at para. 7. It is unnecessary to find that the court was deliberately misled before a court will set aside such an order. The basis of the rule is fairness. As the rule confirms, the failure to make such disclosure is a reason, in itself, to set aside the order made: Mariani v. Mariani, [2010] O.J. No. 1464 (S.C.); Balanyk v. Greater Niagara General Hospital, [1997] O.J. No. 4867 (C.A.).'' | ''A party who seeks relief from the court in proceedings without notice is obliged to make full and fair disclosure of all material facts. This is a common law rule that is enshrined in rule 39.01(6). See also Sangster v. Sangster, 2003 CanLII 48248 (ON CA), [2003] O.J. No. 69 (C.A.), at para. 7. It is unnecessary to find that the court was deliberately misled before a court will set aside such an order. The basis of the rule is fairness. As the rule confirms, the failure to make such disclosure is a reason, in itself, to set aside the order made: Mariani v. Mariani, [2010] O.J. No. 1464 (S.C.); Balanyk v. Greater Niagara General Hospital, [1997] O.J. No. 4867 (C.A.).'' |
| [[https://canlii.ca/t/h5p6v#par17|Misir v Misir, 2017 ONCA 675, para. 17.]] | [[https://canlii.ca/t/h5p6v#par17|Misir v Misir, 2017 ONCA 675, para. 17.]] |
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| This obligation was further detailed by the Supreme Court of Canada in //Ruby v Canada//. In that case, the applicant alleged that sections of the //Privacy Act// violated the //Canadian Charter of Rights and Freedoms//. The Court, commenting on the nature of certain provisions of that //Privacy Act//, said, //obiter//, that | This obligation was further detailed by the Supreme Court of Canada in //[[https://canlii.ca/t/1k7#par26|Ruby v Canada]]//. In that case, the applicant alleged that sections of the //Privacy Act// violated the //Canadian Charter of Rights and Freedoms//. The Court, commenting on the nature of certain provisions of that //Privacy Act//, said, //obiter//, that |
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| | ''26 Ex parte proceedings need not be held in camera. Indeed, ex parte submissions are often made in open court (in interlocutory matters, for example). In fact, an order will still be considered ex parte where the other party happens to be present at the hearing but does not make submissions (for instance, because of insufficient notice): Royal Bank v. W. Got & Associates Electric Ltd., 1994 CanLII 8922 (AB KB), [1994] 5 W.W.R. 337 (Alta. Q.B.), at para. 10, aff’d 1997 ABCA 136 (CanLII), [1997] 6 W.W.R. 715 (Alta. C.A.), aff’d (without reference to this point) 1999 CanLII 714 (SCC), [1999] 3 S.C.R. 408. On the other hand, other ex parte proceedings are, by necessity, not held in public. An application for a wiretap authorization, for instance, must be made both ex parte and in camera.'' |
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| | ''27 In all cases where a party is before the court on an ex parte basis, the party is under a duty of utmost good faith in the representations that it makes to the court. The evidence presented must be complete and thorough and no relevant information adverse to the interest of that party may be withheld: Royal Bank, supra, at para. 11. Virtually all codes of professional conduct impose such an ethical obligation on lawyers. See for example the Alberta Code of Professional Conduct, c. 10, r. 8.'' |
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| | //Vide// [[https://canlii.ca/t/1n1pz|Caldwell v. Caldwell, 2006 CanLII 11850 (ON CA)]]. |
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| | Two points obtain from these paragraphs. The first is that a proceeding may be considered //ex parte// despite the respondent being present and able to hear the proceedings. A proceeding is //ex parte// when the respondent cannot be heard, whether by absence or inability to formulate a cogent and considered response. This broad definition of "//ex parte//" leads to the second observation best made by reviewing paragraph 27. The duty of candour in the face of an empty chair is one of "utmost good faith". Courts require these //bona fides// from their officers because, as Justice Brown said in //Re Sprott Resources Lending Corp.//, |
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| | ''[j]udges learn from experience that most stories have two sides to them, thus the great reluctance of judges to deal with requests for orders on an ex parte basis... Such applications mark a radical departure from the adversarial approach to truth-finding upon which our common law system is built and an exception to the general transparency and openness of our courts when they make orders which affect other parties.'' |
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| | [[https://www.canlii.org/en/on/onsc/doc/2013/2013onsc4350/2013onsc4350.html#par11|2013 ONSC 4350]] |
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| | Put differently, when an advocate fails to disclose all material facts or law to the court, the advocate impedes the administration of justice writ large. |
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| 26 Ex parte proceedings need not be held in camera. Indeed, ex parte submissions are often made in open court (in interlocutory matters, for example). In fact, an order will still be considered ex parte where the other party happens to be present at the hearing but does not make submissions (for instance, because of insufficient notice): Royal Bank v. W. Got & Associates Electric Ltd., 1994 CanLII 8922 (AB KB), [1994] 5 W.W.R. 337 (Alta. Q.B.), at para. 10, aff’d 1997 ABCA 136 (CanLII), [1997] 6 W.W.R. 715 (Alta. C.A.), aff’d (without reference to this point) 1999 CanLII 714 (SCC), [1999] 3 S.C.R. 408. On the other hand, other ex parte proceedings are, by necessity, not held in public. An application for a wiretap authorization, for instance, must be made both ex parte and in camera. | ==== Remedy for failure in the duty of candour ==== |
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| | The test for setting aside an //ex parte// order thus favours the absent party. It was recently described in only a few lines: |
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| | ''[16] In determining whether the moving party has failed to fully and frankly disclose all material facts, the applicable inquiry is not whether the subject order would have been granted had the omitted facts been disclosed, but “whether the omitted facts might have had an impact on the original granting of the order” [emphasis in original] (see: Mazza v Gucciardi, 2013 ONSC 4882, at paras. 24-26).'' |
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| 27 In all cases where a party is before the court on an ex parte basis, the party is under a duty of utmost good faith in the representations that it makes to the court. The evidence presented must be complete and thorough and no relevant information adverse to the interest of that party may be withheld: Royal Bank, supra, at para. 11. Virtually all codes of professional conduct impose such an ethical obligation on lawyers. See for example the Alberta Code of Professional Conduct, c. 10, r. 8.'' | [[https://canlii.ca/t/k48v4#par16|2024 ONSC 2422, para 16]]. |
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| ==== Consent to draft orders ==== | ===== Consent to draft orders ===== |
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| **//Chrysler Credit Canada Ltd. v. 734925 Ontario Ltd. (Master)//, {{ :firm_resources:law:of-procedure:1991canlii7311.pdf | 1991 CanLII 7311 (ON SC)}}** | **//Chrysler Credit Canada Ltd. v. 734925 Ontario Ltd. (Master)//, {{ :firm_resources:law:of-procedure:1991canlii7311.pdf | 1991 CanLII 7311 (ON SC)}}** |
