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Counsel rebuked for failure to reference relevant decision

23 July 2019 - By Caitlyn Frost

A recent Canadian decision highlights the importance of counsel being aware of and complying with their duties to the court, as well as staying up to date with relevant authorities.

In Blake v Blake 2019 ONSC 4062, both counsel for the applicants and counsel for the respondent failed to inform the Court of a relevant adverse decision that had been released shortly before the hearing.

Whilst considering his decision, the Judge was confronted with a lack of helpful authorities so undertook his own review of the law. He discovered both the relevant decision and an article which reviewed the decision in detail, titled “Is a Notice of Objection to Accounts Subject to a Limitation Period?”. The author of this article was a solicitor of the same small specialised estate litigation firm as counsel for the respondent.

Given this relationship, the Judge concluded that counsel knew about the decision, at least by the time the article was published in November 2018. The Judge also concluded that counsel had intentionally failed to bring the decision to the attention of the Court, both during submissions and while his decision was under reserve.

The Judge criticised counsel for their conduct, deeming it a breach of their duty to the Court and awarded indemnity costs against the client.

Caitlyn Frost is a Law Clerk with Tompkins Wake.

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Last updated on the 23rd July 2019