Legalviews Personal

Well-established rules dictate to lawyers who argue applications what they must tell the judge or justice. These rules are not merely matters of ethics and fairness; they are binding law. Here are four of those rules:

If the application is made without notice (or maybe if the other party does not show up), counsel must reveal all the material facts to the court. (The decision discussed here is brief, and does not say whether the opposing party was present or not.)
Counsel must find and cite to the court the relevant legislation and case law, even if it works against that counsel. I have written many blogs showing procedural decisions in King’s Bench following only Queen’s Bench or King’s Bench precedent and omitting contrary Court of Appeal decisions. Often that must be counsel’s failing.
Counsel must not state misleading facts or half-truths. (For example counsel must not state that other absent counsel had notice of this application, not revealing that the other counsel had been suddenly hospitalized. Nor can counsel rely on a document without revealing that the other side insists that it is a forgery.)
Counsel must not state alleged facts which are not proved by sworn evidence (such as an affidavit) or proved directly from the court’s own record of this lawsuit.

Recently a self-represented defendant had not filed a defence and had been noted in default. Then plaintiff’s lawyer applied for and got a final judgment on the merits. The plaintiff’s lawyer knew the procedural facts, and should have known the law. But the plaintiff’s lawyer did not tell the justice six things; that

the defendant had contacted the plaintiff’s lawyer and showed every intent of defending;
the defendant had given the plaintiff’s lawyer a copy of the draft statement of defence which the defendant wished to file and rely on;
the defendant had tried to file that defence with the Clerk, but the Clerk had not accepted it (and surely the plaintiff’s lawyer knew that filing urgent papers is now complex and counter-intuitive);
the defendant had tried to retain counsel;
the defendant intended to apply to the court to set aside the noting in default; and
there are two Court of Appeal decisions setting out the relevant law and tests for such default situations, which differ significantly from the Queen’s Bench decision which the plaintiff’s lawyer cited and the justice relied on. The Court of Appeal decisions are clear, their facts are strong, and each is reported in a well-known law report which gives headnotes. Counsel must know that it is normally easy to open up a default; one of the few exceptions is the defendant’s delay in so applying. The wrong law cited here was about that topic.

Furthermore, the defendant had indeed filed and had pending, a cross-application to set aside the noting in default. Sadly, by some “procedural irregularity”, the justice heard the plaintiff’s later application for final judgment, and seems not to have considered the defendant’s earlier application to open up the noting in default. Did anyone tell the justice that?

The Court of Appeal predictably set the judgment aside, and the plaintiff got only a small bit of thrown-away costs.

The Court of King’s Bench is shorthanded and short of resources. Morning chambers can be a little like a crowded emergency ward. So when a party has a lawyer, the chambers judge or justice must put considerable reliance on that lawyer. Being an “officer of the court” is neither an obsolete notion, nor a sentiment from Hallmark Cards. It is more real today than ever. Barristers are given tremendous advantages, and must daily earn them.

See Amway Solutions v. Bellotto 2024 ABCA 59, Calg 2201 0293 AC (Feb 23).

– Hon. J.E. Côté

DISCLOSURE IN CHAMBERS