An appeal is planned
A judge at the Superior Court of Justice of Ontario said a lawyer — whose firm blogged about a relevant piece of case law — failed to tell the court about the important ruling.
“During my review of the law, and without any ingenious or in-depth research on my part, the first instance and appeal decisions in Wall v. Shaw came to my attention,” wrote Justice Peter Daley in a July 8 decision, Blake v. Blake, 2019 ONSC 4062. “I have also reached the very troubling conclusion that counsel for the respondents purposefully did not bring the decision in Wall v. Shaw to the attention of the court.”
The case, Blake v. Blake, focused on claims to nine properties that were owned by the parties’ mother before she died. Respondent Kenneth Blake failed in his summary judgment motion, heard in Sept. 2018.
The most recent decision ordered Kenneth Blake to pay $60,000 in costs to applicant Patricia Geddes and $31,695.13 to applicants Bruce Howard Blake and Kathryn Joan Homes. In the costs award, Daley cited “clear breach of duty by counsel for the respondents.”
Daley said that neither counsel raised Wall v. Shaw, 2018 ONCA 929, which was published in November 2018 but upheld a decision from March 2018. The Wall v. Shaw case was relevant to the Blake v. Blake case, said Daley, because it concluded that a notice of objection in an estate case is not subject to the limitation period within the Limitations Act.
“These decisions were directly on point with the limitation issue as raised by the respondents and immediately disposed of their submissions on the limitation period,” wrote Daley. “In the course of considering the law in this area, while my decision was under reserve, an estates litigation blog commentary dated November 16, 2018, also came to my attention entitled ‘Is a Notice of Objection to Accounts Subject to a Limitation Period?’ It is most noteworthy that this blog was written by solicitor Charles Wagner on behalf of his law firm Wagner Sidlofsky. This is the one and the same law firm that the respondents’ counsel practices with.”
Daley said that since the respondents’ lawyer, Gregory Sidlofsky, worked with Wagner, Sidlofsky must have known about the Wall v. Shaw decision.
Sidlofsky says he has instructions to appeal and could not talk at length about the case. But, Sidlofsky says, the appeal will likely focus on whether the judge misconstrued the limitations argument, as well as whether the judge made the finding of misconduct without any notice to the lawyers. Sidlofsky says that although the judge based the cost decision on the Wall v. Shaw issue, neither party made submissions on the issue.
“Needless to say, I find the comments of [the motion] judge very disturbing. The failure of the court to give me an opportunity to address the judge’s concerns before making the comments is something that I hope to address on appeal,” says Sidlofsky.
Lawrence, Lawrence, Stevenson LLP partner Edwin Upenieks, who represented Geddes, declined to comment.
Mirilyn Sharp, a partner at Blaney McMurtry LLP, says the Blake v. Blake case caught her eye after she had a similar experience arguing a case in British Columbia —where an opposing counsel did not bring forward a case that they themselves had argued that would have helped her client. Sharp ended up bringing up the cases herself, but the judge didn’t call out the other lawyer.
Sharp says her discussions with other lawyers indicate the situation in Blake v. Blake has caused a stir about whether the judge’s finding seemed harsh.
“I think some people were incensed that the client had to pay the additional cost instead of the lawyer, given that the judge was critical of the lawyer,” she says. “And I think that people are concerned this lawyer was not given any notice of his behaviour and the judge has made a finding that he deliberately misled the court. That’s pretty significant.”
In March the judge said it was “both unfortunate and troubling” that counsel did not refer to Wall v. Shaw, according to the summary judgment motion decision underlying the July costs decision. Sharp says it would be interesting to know whether either lawyer addressed that in their costs submissions.
“When a case is on reserve, but you come across a decision that’s relevant to what the judge is going to be deciding, it’s my understanding — and I’ve certainly always operated this way — that the judge wants to know about it. The judge doesn’t want to release a decision that misses an important case. And that’s exactly what happened here, except the judge found it,” says Sharp. “It’s incumbent on lawyers, if they come across a decision while their own decision is under reserve, to bring it to the attention of the other side. And then say, ‘I think we should send it the judge,’ …. Assuming they were aware of it.”