Advocacy-Matters-Winter-2024

“When engaged in a disagreement with counsel,
simply state your position and move on. Don’t let
your emo tions get the best of you.”
According to Chapter 5 of the Ontario Rules of Professional Conduct,
advocates must “raise fearlessly every issue, advance every argument
and ask every question”, but they must also be civil and honest.
The incivility of counsel often arises during the discovery process,
where examinations proceed without judicial oversight. The
following are two examples of inappropriate conduct during discoveries
that were penalized by the courts.
Singh et al. v. Braich involved a personal injury discovery dispute between
a senior defence lawyer and a junior plaintiff lawyer. When
the junior lawyer limited the scope of questions twenty-two minutes
into an examination, the senior lawyer claimed that the refusal
hindered the flow of his discovery, refused to proceed with the discovery,
and refused to attempt to address the issue off the record.
He further sought, by way of motion, his costs under Rule 34.14(2)
(b), a rule which allows a lawyer to stop an examination if there are
improper objections or interruptions, or if the person is evasive,
non-responsive, or verbose.
CIVILITY IN ACTION
What Happens in the Boardroom,
Doesn’t Stay in the Boardroom: A
Reminder that Civility Still Matters
Lisa Marie Buccella, Aviva Trial Lawyers
In dismissing the 34.14(2)(b) motion, Justice Rahman was highly
critical of the senior defence lawyer for his “abuse of this Rule” and
for not following the junior lawyer’s suggestion to resolve the issue
off the record. Justice Rahman called out the senior lawyer’s behavior
as bullying, inconsistent with the spirit of co-operation between
counsel that is recommended and expected by the court. The motion
backfired on defence counsel and costs were awarded in favour
of the plaintiff.
In Neilson v. The Commonwealth Mutual Insurance Group et al., a fire
loss case, a senior lawyer for the plaintiffs acted rudely and disruptively
to opposing counsel, terminated the defendants’ discovery,
and then moved to compel the defendants to come back and answer
more questions. Justice Fraser denied the motion, blaming the
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