Counsels’ Duty to the Court and Role in the Proper Administration of Justice

• Author: David Cheifetz
• Date: December 13, 2016

Two recent SCJ decisions are, in my view, examples of counsel failing in different aspects of their duty to the court and, as such impeding, or at least not assisting, the judge in the proper administration of justice.

Others (who are practising lawyers, I suspect) may have different views on whether the counsel involved in these cases did anything they ought not to have done or did not do something they ought to have done. If you do, perhaps you should take a few moments to consider why you you disagree and respond.

I am not going to discuss the merits of either of these decisions nor do I think we should because that isn’t the point.

In each case, I have formed my opinion on what is apparent from the reasons with one exception which I will indicate.

Wise v Abbott Laboratories, Limited, 2016 ONSC 7275 (CanLII)

This case raises the issue – NOT THE PROBLEM – of keeping current with the spate of decisions constantly being released, even in one’s own jurisdiction, of arguably relevant decisions that are released between the time argument ends and the reasons in the lawyers’ own case are released. Wise makes the issue starker because the new decision was a Supreme Court of Canada decision which, on its face, dealt with an issue that had to have been argued in Wise.

Wise is a defendants’ motion for summary judgment to dismiss a not-yet-certified class action. The motion was argued over 6 days in the latter part of Sept 2016 before Perell J. Reasons were released on November 23, 2016.

One of the significant issues was the use of statistics to prove aspects of causation.

That issue had been recently canvassed – it was central to the decision – in Benhaim v. St‑Germain, 2016 SCC 48 (CanLII), . Benhaim was released on Nov 10.

Benhaim is not mentioned in the Wise reasons. As I read Wise, my suspicion grew that this was not an oversight by Perell J. Rather it had not been put to him and he was not aware of it.

I have been advised by an unimpeachable source that Perell J was not advised of it and that he was not aware of it. (I thought I ought to confirm it but that confirmation merely confirmed my suspicions.)

The Benhaim decision was readily available to counsel. For example, any one subscribing to the SCC’s email or RSS services would have known it was coming a few days before its release and received notice of its release as would anyone subscribing to the free, wonderful, Supreme Advocacy letter provided by Eugene Meehan (emeehan@supremeadvocacy.ca) and...