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Case Comment: Blake v. Blake, 2019 ONSC 4062

What’s worse than losing your client’s motion? Losing your client’s motion paired with a substantial costs award against your client because you neglected to bring a critical case to the court’s attention.

Blake v. Blake tells an important cautionary tale for all lawyers: be aware of relevant articles that your firm publishes. A judge may make a factual inference that you know the case which your firm wrote about, especially if you practice in a smaller and specialized firm.

Blake v. Blake was an estates matter in which a trustee of his mother’s estate was sued by his siblings and brought a summary judgment motion to dismiss the siblings’ claims. The respondent trustee argued that summary judgment should be granted dismissing the claims on three grounds. The respondents’ main argument was that a notice of objection was out of time due to a limitation period. The motion was easily dismissed.

The then year-old case Wall v. Shaw was directly on point and immediately disposed of the respondent’s argument. It holds that a Notice of Objection is not subject to a limitation period under the Limitations Act, and the decision was upheld by the Court of Appeal, sitting as a panel of the Divisional Court.

Unfortunately, neither lawyer brought Wall v. Shaw to the court’s attention. Justice Daley found the case himself without any in-depth research. Critically, in November of 2018 the respondents’ firm published a detailed blog post about Wall v. Shaw. Justice Daley drew a factual inference that counsel for the respondent knew about Wall v. Shaw when the blog was published, and Justice Daley concluded that counsel for the respondents purposefully did not bring Wall v. Shaw to the court’s attention.

Of importance is Justice Daley’s analysis of the conduct of counsel for the respondents. Justice Daley noted important duties governing lawyers’ conduct, including the duty of competence, the duty of candour, and the rule that a lawyer has a positive duty to inform the court of all relevant binding authorities, irrespective of whether they support or undermine counsel’s position, even if opposing counsel has not cited the authority. Lawyers are obliged to distinguish these cases to advocate for their client.

Justice Daley outlined two principles related to counsel’s obligation to inform the court of relevant authorities: (1) when a lawyer is aware of a relevant authority, the failure to bring it to the court’s attention could be seen as an attempt to mislead the court, and (2) when a lawyer does not know about the authority, ignorance may not be a sufficient excuse because lawyers have a duty to conduct reasonable research. While this may not be a deliberate misrepresentation, counsel may be in breach of their duty to the court for failing to conduct reasonable research.

Justice Daley listed the following factors as relevant to counsel’s duty to the court:

  1. Binding cases must be raised if they are relevant.
  2. Non-binding yet persuasive cases need not necessarily be raised, but counsel should raise the case if it is on point and from the same jurisdiction. Decisions from courts on the same level may be binding under the rule of horizontal stare decisis.
  3. When a lawyer states that they did not know about the authority, to determine whether the lawyer ought to have known about the case, the court can ask whether the authority was easy to find. If the case was unique and pertained to a specialized area of law, it is less likely that the court will impute knowledge of that case on the lawyer.
  4. Lawyers cannot decide on their own whether a case is distinguishable. If the case is relevant, lawyers must bring the case to the court’s attention, and the judge can distinguish if they see fit.

Since the applicants were successful in defending the summary judgement motion, they were prima facie entitled to costs. Justice Daley concluded that counsel for the respondents breached his duty to the court by failing to bring Wall v. Shaw to the court’s attention. Counsel’s failure to comply with his professional duty was reflected in the costs award, where the respondent was ordered to pay substantial indemnity costs of approximately $90,000.00.