Chapter 2: The Economic and Professional Context

• Pages: 35-57
• Author: Janet Walker,Lorne Sossin,Erik S. Knutsen,Gerard J. Kennedy

CHA PTER 2

THE ECONOMIC

AND PROFESSIONAL

CONTEXT

A. PRELIMINARY CONSIDER ATIONS

Before commencing litigation, it is important for litigant s and their

counsel to consider issues of representation and nancing because

these issues a ffect all the subsequent steps in the litigat ion. These

issues also a ffect the propriety, wisdom, and consequences of tak-

ing particula r steps in the resolution of a civil claim. In t his chap-

ter, we begin by discussing representation: when parties must be

represented by lawyers, what are the implications if they are not

represented and when lawyers m ay remove themselves as counsel of

record. Then we turn to issues of na ncing the litigation, concentrat-

ing primar ily on the law of costs, which should inform all decisions

parties ta ke in litigation. Through all of these issues, ethical con-

siderations are present.

B. REPR ESENTAT ION

We often assume that parties i n litigation will be represented by coun-

sel. This is desirable because lawyers are skilled professionals with

extensive train ing, who owe duties of loyalty to their clients, includ-

ing duties of condentiality, candour, and commitment to their clients’

causes. These obligations are the subject of professional conduct rules,

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CIVI L LITIGAT ION

36

compliance with which is required of lawyers under their license to

practice law.1 This reects the public interest in the lawyer-client re-

lationship — a relationship of trust in which, for example, documents

(other than originating proceed ings) may may be served on counsel

rather than the pa rty directly2 and, in which, lawyers are often per mit-

ted to answer on behalf of t heir clients when questioned under oath

during discovery.3 In this way, lawyers are ca lled upon to act for and

on behalf of their clients, and their duty to do so responsibly is critical

to their relationship with their clients. Indeed, the public trust in this

relationship supports the protection of their communications as privil-

eged, as will be considered i n Chapter 7.

Despite this, recent decades h ave seen an extraordinary increase

in the number of self-represented litigant s in the Canadian civil jus-

tice system. One of the largest rea sons is the increasi ng costs of legal

represent ation,4 which itsel f is a product of the potential for civil litiga-

tion to be complicated, as is discussed throughout this book. Another

reason is that a sm all but noisy number of litigants who do not recog-

nize the legitim acy of the court system take up a disproportionate share

of court resources.5 They will be discussed in more depth in Chapter 8.

This section begins by exploring the circumst ances where rep-

resentation by a lawyer i s mandatory. We then turn to considerations

that arise when litigants are self-represented. Finally, we consider the

reform of the historic obligation of lawyers to continue their represen-

tation throughout the litigation and the occasions that now arise when

they may, or must, remove themselves as counsel of record.

1) Mandator y Representation

As we explore in the section below concerning costs, legal representa-

tion is now so expensive th at it is out of reach for many Canadians,

and it has led to an increas e in incidences of parties commencing civ il

proceedings as self-represented litigants. There are circumstance s,

however, where representation by a lawyer is mandatory. These usu-

ally fall into two categories: a) litigation guardians and persons under

a disability, including minors and b) corporations. While rare st atutes

1 See, e.g., Ontario’s Rules of Professio nal Conduct, Law Society of O ntario.

2 Ontario’s Rules of Civil Proced ure, RRO Reg 194, r 16.05.

3 Ibid, r 31.08.

4 See Kerr v Danier Le ather Inc, [2007] 3 SCR 331 [Kerr], discus sed below in the

context of costs.

5 Often descr ibed as “OrganizedPseudoleg alCommercial Argument (OPCA)

Litigants”: see, e.g., Mead s v Meads, 2012 ABQB 571.