Motions judge based decision on his own research and did not allow lawyer to defend allegations
The divisional court has ruled that a motions judge breached his duty to procedural fairness and natural justice in finding a lawyer guilty of misconduct for deliberately misleading the court in a costs decision. The motions judge based his costs decision on his own legal research and internet searches without allowing the lawyer to make submissions or defend himself against the allegations.
The court’s decision said that “where a motion judge or trial judge call into question the integrity of a lawyer with a finding that the lawyer has breached his or her duty to the court, there is a corresponding obligation to provide that lawyer with notice and an opportunity to be heard.”
A lawyer’s reputation is built on years of hard work and can be lost in mere seconds when someone reads a judge’s reasons that question that lawyer’s integrity, the court wrote.
As reported by Law Times, Superior Court Justice Peter Daley, in the summary judgement decision in Blake v. Blake, 2019 ONSC, said the lawyer for the respondent, Gregory Sidlofsky’s law firm, blogged about a piece of case law and failed to report the relevance of the law to the ruling. Justice Daley said appeal decisions in Wall v. Shaw came to his attention as important case law for the Blakes case during his law review and concluded that Sidlofsky purposefully did not bring the decision to the court’s attention.
Sidlofsky says the divisional court recognized the dilemma he faced because he did not have a chance to respond to what was found in the motion judge’s ruling.
“That lower court decision was hanging over my head for two years and four months and journals were writing about the decision. There were email blasts to lawyers all over Ontario referring to the decision and any judge or prospective client reading it would take a very dim view of me personally and that was horrifying.”
The case before the superior court focused on claims to nine properties that the parties’ mother owned before she died, and Sidlofsky represented the respondent Kenneth Blake. Citing a “clear breach of duty” by Sidlofsky, Justice Daley awarded the respondent substantial indemnity costs and ordered Kenneth Blake to pay $60,000 to applicant Patricia Geddes and $31,695.13 to applicants Bruce Howard Blake and Kathryn Joan Homes.
The appeal to the divisional court initially concerned costs, but parties to the litigation settled their dispute after the leave to appeal was granted, and because of the settlement, the appeal was moot. However, Justice Fowler Byrne granted Sidlofsky intervenor status under the parties’ request, permitting him to pursue the appeal despite the fact the appeal was moot.
The issues before the divisional court were if the findings of Sidlofsky’s professional conduct were proper and supported by evidence, the extent of a lawyer’s duty to the court, including when a matter has been argued and remains under reserve, and if there should be cost consequences for a client if a lawyer has breached their court duties.
“It was a fundamental breach of procedural fairness for the motion judge to base his costs decision on Mr. Sidlofsky’s failure to bring the Wall decision to the court’s attention, without giving counsel an opportunity to address the issue,” the court wrote.
The court wrote that the motion judge believed that he did not receive necessary submissions to determine the issue before him leading him to review the law and discover the Wall decision. “It is clear from a review of the motion judge’s costs decision that he was of the view that he had not been provided the necessary tools to determine the issue before him.”
“We want to make clear that we understand the crushing workload the judiciary has to address on a daily basis. Judges are human and can fall into error. The error in this case unfortunately had a very negative impact on Mr. Sidlofsky’s professional reputation.”
The divisional court also wrote that the summary motion judgment was averse to the interests of the respondents and the requirement of rule 57.07 of civil procedure to provide a lawyer with notice of the court’s intention to award costs against a lawyer should similarly inform the obligation to provide a lawyer with notice where a finding of professional misconduct may have negative consequences for the client.
“The divisional court set aside the lower court order because there was a denial of natural justice,” Sidlofsky says. “I wasn’t given the right to defend myself against allegations that I certainly denied and if I had the opportunity, I would have explained to the motions judge why his concerns were not justified, why I did not do anything that he alleged, and why the court case he was relying on was not relevant to the submissions.”
Sidlofsky says that while he is happy with the divisional court’s ruling to set aside the motion judge’s decision, there are substantial issues the court failed to address. For example, what are lawyers’ obligations to the court when a decision is under reserve?
“The court decision that made findings against me has been set aside so hopefully, all the material online that referred to that earlier decision will now also refer to the divisional court’s decision setting it aside.”