We only litigate. In our collective experience, the lawyers at our firm have witnessed a great deal of conduct by lawyers toward other lawyers that falls far short of what the Rules of Professional Conduct require. We have also witnessed individuals representing themselves who appear to feel licensed to insult and verbally abuse opposing counsel and even the court.
When it is a lawyer who is behaving badly, there is always the option of reporting the lawyer to the Law Society of Ontario for misconduct1 – but that is not the subject matter of this blog. Our goal here is to review some case law to see how the courts have addressed specific examples of bad behaviour by lawyers and how that behaviour was used by the victims to their own advantage.
In Baksh v. Sun Media Toronto Corp,2 the Toronto Sun published articles about Kadir Baksh’s run-in with the criminal justice system. Baksh was a lawyer. He sued for defamation and represented himself. In the course of the litigation, he made negative and derogatory remarks about defence counsel accusing defendant’s counsel of sharp, high-handed practice and of trying to use procedural delay tactics to avoid a decision on the merits. The court held that there was no evidence to support any of these criticisms. Master Dash stated:
21 Rule 6.01(1) of the Rules of Professional Conduct provides that “a lawyer shall conduct himself…in such a way as to maintain the integrity of the profession.” Rule 6.03(1) provides that a lawyer shall be courteous and civil with all persons with whom he has dealings in his practice. Of particular relevance is the commentary under that rule which provides that “a lawyer should avoid ill-considered or uninformed criticism of the … conduct of other lawyers.” Finally rule 6.03(5) prohibits the communication to another lawyer or any person “that is abusive, offensive, or otherwise inconsistent with the proper tone of a professional communication from a lawyer.”
22 The Principles of Civility for Advocates provides further guidelines for the conduct of litigation by lawyers. Paragraph 27 provides that “Counsel should not attribute bad motives or improper conduct to opposing Counsel, except when relevant to the issues of the case and well-founded.” Rule 28 advises that “Counsel should avoid disparaging personal remarks or acrimony toward opposing Counsel.” Finally rule 29 suggests that, “Counsel should not…seek to create an unjustified inference based on opposing Counsel’s statements or conduct.”
23 Counsel who appear before Ontario courts are expected to comply with the Rules of Professional Conduct, and in my view should also adhere to the Principles of Civility, or risk sanctions by the court. In my view the plaintiff’s unsubstantiated negative, offensive and prejudicial personal comments about opposing counsel infringe both the Rules and the Principles. Such comments have no place in our courts. I can only assume that such remarks were made to prejudice both the defendants and their solicitors in the eyes of the court. I note that the plaintiff has offered neither an explanation nor an apology by way of mitigation, except to state that although he is a lawyer he is a self-represented litigant. In my view a lawyer who is representing himself is still acting as a lawyer (as well as a litigant) and is bound by the rules that apply to lawyers. The court must show its disapprobation of such conduct. I agree with defendants’ counsel that a proper reprimand for breaches of this nature in the circumstances of this case is an award of costs on a substantial indemnity scale….
Similarly in Charlebois v. SSQ Life Insurance Co.,3 Justice Valin held that, “allegations that impugn the professional integrity of counsel for an adverse party, and which are found to be unproven, warrant a punitive award of costs”4 and made a cost award of $50,537.03 on a substantial indemnity scale. In assessing the costs award, Justice Valin rejected the plaintiff’s argument regarding proportionality and instead focused on the actions of the party making the unfounded allegations.5
The rationale for the cost consequences cited above for making unfounded allegations of impropriety against counsel is explained by Master Hawkins in Esposito.6 In deciding to award substantial indemnity costs, Master Hawkins focused on the harm that was done to the professional’s reputation when allegations of wrongdoing become part of the public record.7 Justice Dambrot further explains in the Mele decision that even if the allegations are not actually advanced at trial, as long as they remain part of the public record, the harm continues.8
Justice Winkler in the Dabbs decision criticized attacks on the adverse parties’ counsel where the attacks are meant to distract from the real matters at issue. In Dabbs, Winkler J., as he then was, awarded substantial indemnity costs, because the party attempted to impute impropriety and attacked counsel as a back door way to vitiate the terms of a settlement in a class action instead of arguing the issue on its merits.9
With respect to assessing the quantum of a costs award against a party who has made unfounded allegations that impugn the professional integrity of an adverse party, Justice Stinson stated that, “it does not lie in the defendants’ mouth to complain about the costs…” where they chose to attack. The attacking party should expect, and it is reasonable for the attacked party to vigorously defend its reputation.10
A note of caution though – just because a lawyer contravenes the Rules of Professional Conduct, a court will not automatically grant a cost order against that lawyer’s client or grant costs on a higher scale. In fact, there are many instances where the court chooses not to weigh in on the misconduct and instead says that it is an issue for the Law Society.
In the case of Beatrice Leaseholds Ltd. v. Shainhouse,11 the lawyer for the plaintiff (“Midanik”) was found to have breached the Rules of Professional Conduct. The context is important:
- In his correspondence Midanik wrote to the young lawyer representing the defendant, “You may have violated the Rules of Professional Conduct by knowingly pleading a falsehood in the Statement of Defence and Counterclaim by alleging that BLL bought RMS.” The judge found that this amounted to an allegation of fraud against Ross (the defendant’s lawyer).
- In their correspondence Ross suggested the motion was a master’s motion. Midanik quoted two decisions where such a motion was before a judge and then sarcastically and unnecessarily added: “As you seem more comfortable before a Master” he would vacate the June 5 scheduling date and book a long motion before the Master. Ross pointed out that it was not a matter of his comfort, but the two decisions he referenced were from outside Toronto where there are no Masters. Midanik sarcastically responded: “I take it Madame Justice Gillese sat in Timbuktu?” Ross commented that because of the delay caused by the proposed motion, his scheduling of the motion was without prejudice to the continuation of the action. Midanik responded: “I do not need your permission or need to agree to any conditions before bringing an application which I must bring.” Mr. Midanik also suggested Mr. Ross retain senior counsel and share with him all the actions Mr. Ross has taken on behalf of certain of the parties.
- The plaintiff brought a motion to remove Ross as the lawyer for the defendant. In that motion the plaintiff’s lawyer made serious allegations of conflict of interest as well as professional misconduct. He essentially alleged that Ross lied and committed fraud. To prepare for this motion Ross incurred expense. Midanik also claimed that Ross violated the Rules of Professional Conduct by knowingly pleading a falsehood in the statement of defence and counterclaim. Before the motion was heard the plaintiff abandoned the motion.
Ross’ client received a higher cost award because the plaintiff abandoned the motion. That is not exceptional because the Rules of Civil Procedure provide for such a costs order. For the purposes of this blog, though, we want to deal with another aspect of the argument before the court. Ross made the argument that a higher cost award was warranted because of the abusive and derogatory comments Midanik made to Ross.
The Master found that Midanik’s correspondence was intended to demean Ross and bully him as a junior member of the bar. The statements were gratuitous and contravened the Rules of Professional Conduct. He found that Midanik’s correspondence was unprofessional, abusive and offensive. Nonetheless, in and of itself, the correspondence did not warrant a higher cost award. Why? The Master explained:
It is not the function of a judge or master to police counsel’s unprofessional behaviour out of court. That is the function of the Law Society. Therefore, despite the court’s disapproval of counsel’s conduct, I am of the view that taken by themselves such comments would not attract an award of costs on a substantial indemnity scale on the motion before me, although they are an aggravating factor.
Ultimately, the Master did find that a higher cost award was warranted because of the unsubstantiated allegations of fraud combined with Midanik’s breach of civility.12
The potential for a the breach of the Rules of Professional Conduct to result in cost sanctions, or at least an increased costs award, does not only apply to lawyers. In Law Society of Upper Canada v. Carter,13 the hearing panel made the following observation:
“In R. v. Wozny, 2005 QCCA 360 (Que. C.A.), Hilton J. A. of the Quebec Court of Appeal dismissed the motion of a self-represented litigant because of a litany of insults directed against counsel.” He stated at paragraphs 13 and 17: “Obviously documents of this nature filed by a member of the Bar would result in disciplinary complaints and in all likelihood a sanction of some kind. No such disciplinary sanction can be imposed on a self-represented litigant who is not subject to any professional code of ethics. That does not mean, however, that a self-represented litigant is free to act as he or she pleases without reference to the standards of conduct that are expected of members of the Bar when they engage in legal proceedings on behalf of clients or appear before the Courts… courts should require self-represented litigants…to participate in litigation according to the same standards of civility and courtesy that are expected of members of the Bar.”
So will abusive lawyers who try to bully other lawyers always be held accountable by the court? No. As stated above, there are cases where the court felt the appropriate forum to deal with this was a complaint to the Law Society.14 Nonetheless, much like Jujitsu defeats an opponent’s attack by using their momentum against them, the take away from these cases is that sometimes the best way to handle a bully is to focus the court on their poor and unjustified behaviour and then use it to benefit your client on the merits and when dealing with costs.
- Please see the Law Society of Ontario’s website entitled, “how to Make a Complaint” at http://www.lsuc.on.ca/with.aspx?id=644 ↩
- Baksh v. Sun Media (Toronto) Corp. (2003), 63 O.R. (3d) 51 (S.C.J.) ↩
- Charlebois v. SSQ Life Insurance Co., 2015 CarswellOnt 20305 (S.C.J.) ↩
- Charlebois supra at para. 21; See also Girgis-Boktor v. Reddy, 2014 CarswellOnt 10138 (S.C.J.), at para. 58 ↩
- Charlebois supra at para. 21 and 30 ↩
- Esposito v. Toronto (City), 2004 CarswellOnt 3428 (S.C.J.) ↩
- Esposito supra at paras. 31-34 ↩
- Mele v. Thorne Riddell, 1997 CarswellOnt 206 (Ont. Gen. Div.), at para. 9 ↩
- Dabbs v. Sun Life Assurance Co. of Canada, 1998 CarswellOnt 521 (Ont. Gen. Div.) at para. 14 ↩
- Girgis-Boktor supra at para. 61 ↩
- Beatrice Leaseholds Ltd. v. Shainhouse, 2013 CarswellOnt 12532, 2013 ONSC 5582, (2013) O.J. No. 4074, 232 A.C.W.S. (3d) 598. (Beatrice) ↩
- See Paragraph 42 Beatrice. ↩
- The Law Society of Upper Canada v. George Nelson Carter, 2005 CarswellOnt 10547, 2005 ONLSHP 24, (2005) L.S.D.D. No. 57 ↩
- Close Up International Ltd. v. 1444943 Ontario Ltd. 2006 CarswellOnt 6466, (2006) O.J. No. 4225, 152 A.C.W.S. (3d) 380. In paragraph 11 the court stated:
“The comments by plaintiff’s counsel were discourteous and condescending as well as “abusive, offensive, or otherwise inconsistent with the proper tone of a professional communication from a lawyer.” They were personal disparaging comments about opposing counsel. The remarks to Mr. Levine were not only arrogant but an attempt to belittle him by denigrating his legal knowledge and they were copied by Mr. Cartel to three other lawyers. There is no place for such comments in communications between solicitors. They were unnecessary and did nothing to advance the positions of Mr. Cartel’s clients. However, the disparaging comments made by counsel in Baksh v. Sun Media (Toronto) Corp. about opposing solicitors were made to the court and in documents filed with the court in order to cause the master to view such solicitors in a negative light. Mr. Cartel’s comments were not contained in documents filed with the court or referred to by him on the motion before me. It is not the function of a judge or master to police counsel’s unprofessional behaviour out of court. That is the function of the Law Society. Therefore, despite the court’s disapproval of counsel’s conduct, I am of the view that taken by themselves such comments would not attract an award of costs on a substantial indemnity scale on the motion before me, although they are an aggravating factor ↩