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| firm:law:court-procedure:solicitor-duty [2024/07/25 20:01] – adam | firm:law:court-procedure:solicitor-duty [2024/07/26 15:31] (current) – adam |
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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.).'' |
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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. | 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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| | ==== 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: | The test for setting aside an //ex parte// order thus favours the absent party. It was recently described in only a few lines: |
| [[https://canlii.ca/t/k48v4#par16|2024 ONSC 2422, para 16]]. | [[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)}}** |
