Cases Considered: R. v. Cunningham, 2010 SCC 10; R. v. White, 2010 ABCA 66

PDF version: Reflecting on the Supreme Court’s Reassertion of Judicial Control Over Lawyer Withdrawal and Its (Non) Impact on the “Perjury Trilemma”

In its March 26, 2010 decision in R. v. Cunningham, 2010 SCC 10, the Supreme Court of Canada rejected the position of the Yukon Territory Court of Appeal that courts have no jurisdiction to prevent counsel from withdrawing from a scheduled criminal proceeding, even if the withdrawal is only for non-payment of fees (Cunningham v. Lilles, 2008 YKCA 7). The Supreme Court affirmed the position taken by most other provincial courts of appeal, that both superior and statutory courts may require that counsel apply for leave when seeking to withdraw from scheduled criminal proceedings, and that in exceptional circumstances the application to withdraw may be denied (See R. v. C (D.D.) (1996), 110 C.C.C. (3d) 323 (ABCA); R. v. Deschamps, 2003 MBCA 116); Bernier v. 9007-1474 Québec Inc., [2001] J.Q. No. 2631 (Que. CA); Mireau v. Canada (1995), 128 Sask. R. 142 (C.A.); R. v. Brundia, 2007 ONCA 725; Contra see Re Leask and Cronin (1985), 18 C.C.C. (3d) 315 (BCSC)).

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Case considered: Polis v. Edwards, 2010 ABCA 59

PDF version: A custodian of a lawyer’s practice is not a “mere warehouseman”

There are few written decisions on the rights, liberties, powers and immunities of custodians appointed by the court to wind up or manage another lawyer’s practice pursuant to the Legal Profession Act, R.S.A. 2000, c. L 8, section 95. Polis v. Edwards, 2010 ABCA 59 adds to that small body of law, although its ability to do so was limited by the fact the appellants were self-represented - and apparently not very well self-represented at that. The Court of Appeal notes (at para. 4) that there were at least 23 different issues or grounds of appeal set out in the appellants’ joint factum and, although there might have been more, they were incomprehensible in law. Nevertheless, one legal question of interest to more than the parties was squarely before the Court of Appeal and that was the question of whether a custodian is entitled to tax the accounts of the member of the Law Society of Alberta (LSA) whose legal business they were appointed to manage or wind up. That question was, not surprisingly, answered in the affirmative.

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Cases considered: R. v. Neil, 2002 SCC 70; [2002] 3 S.C.R. 631; Strother v. 3464920 Canada Inc. 2007 SCC 24;[2007] 2 S.C.R. 177.

PDF version: The Italics that Rocked the Decade (for Canadian Lawyers)

Those who follow sports know that some of the most fun you can have with your clothes on is debating the criteria for selecting the league MVP. Is it the best player, considered apart from the success (or ineptitude) of his team? Is it the player who contributed the most to the accomplishments of a successful team effort? Is it a particular type of contribution that matters - e.g., exceptional individual skill or above average skills combined with exceptional leadership? Or is it some more holistic determination, considering a variety of factors in a balance which is incapable of articulation beyond “I know it when I see it?”

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PDF version:  The public and private duties of opposing counsel

Alberta courts have consistently held that misconduct by counsel in the course of litigation will not normally be the basis for liability to the opposing party in that litigation. While sometimes duties to opposing parties exist - as, for example, in the tort of malicious prosecution - the Alberta Court of Appeal in German v. Major (1985), 62 A.R. 2 (C.A.) made it clear that the duties of the lawyer to the court and to the public do not automatically translate into duties to opposing parties.

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Case considered: Miazga v. Kvello Estate, 2009 SCC 51

PDF Version:  Prosecutorial Accountability?

In its 2002 decision in Law Society of Alberta v. Krieger, 2002 SCC 65, the Supreme Court of Canada affirmed the ability of the Law Society of Alberta to regulate misconduct by Crown prosecutors. It held, however, that where the misconduct relates to the exercise of prosecutorial discretion, the Law Society’s jurisdiction is limited to circumstances where the prosecutor has acted in bad faith. The Court reiterated that, in general, the exercise of prosecutorial discretion is entitled to deference, and may only be reviewed by the Court in circumstances of “flagrant impropriety” (Krieger, para. 49).

In its recent judgment in Miazga v. Kvello Estate, the Supreme Court has affirmed this highly deferential approach to prosecutorial discretion. The Court held that to establish liability for malicious prosecution the plaintiff must demonstrate a) that the defendant was responsible for the prosecution; b) that the legal proceedings ultimately resolved in favour of the plaintiff; c) that the defendant did not have reasonable and probable grounds for a prosecution, objectively speaking (that is, that the defendant’s professional judgment should have indicated that it was not possible that “proof beyond a reasonable doubt could be made out in a court of law” (para. 63); at this stage the prosecutor’s subjective belief in guilt is irrelevant); and, d) that the defendant acted for some improper purpose in bringing forward the prosecution - that the defendant “deliberately intended to subvert or abuse the office of the Attorney General or the process of Criminal Justice” (para 89).

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Case considered: Moose Mountain Buffalo Ranch v. Greene Farms Drilling Ltd., 2009 ABQB 489

PDF version: Reasonable or resolute? Musings on the obligation of lawyers to grant reasonable requests for extensions

Moose Mountain Buffalo Ranch and Greene Farms Drilling Ltd. entered into a contractual agreement pursuant to which Greene Farms undertook to service a deep water well and drill for water on lands owned by Moose Mountain. The lands are in Saskatchewan, and Greene Farms operates in Saskatchewan, but Greene Farms is extra-provincially registered in Alberta.

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Considered: Task Force on the Canadian Common Law Degree Final Report

PDF version: Legal ethics and academic freedom?

Introduction

Last week the Federation of Law Societies issued the “Final Report” of its Task Force on the Canadian Common Law Degree. The Final Report is the third document issued by the Task Force, the first being an initial Consultation Paper in September 2008, the second being its Interim Report issued in March 2009.

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Case considered: R. v. Cunningham, 2008 YKCA 7

PDF version: Unhappy differences arise in R. v. Cunningham

On November 17, 2009 the Supreme Court of Canada will hear argument in R. v. Cunningham, an appeal of a judgment by the Yukon Territory Court of Appeal released June 25, 2008. If the Court upholds the YKCA decision in Cunningham it would change the law in many other Canadian provinces, including Alberta (R. v. D.D.C., (1996) 43 Alta. L.R. (3d) 1 (C.A.), generally referred to as Ferguson), Saskatchewan (Mireau v. Canada et al., (1995) 128 Sask. R. 142 (C.A.)), Manitoba (R. v. M.B.D., 2003 MBCA 116) and Ontario (R. v. Chatwell, (1998) 38 O.R. (3d) 32 (C.A.)).

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Case considered: Polis v. Edwards, 2009 ABQB 520

PDF version: A Custodian of a lawyer’s practice is like a . . . [what?]

There are very few written decisions on the powers, rights and duties of custodians appointed by the Court of Queen’s Bench at the request of the Law Society of Alberta (LSA) pursuant to the Legal Profession Act, R.S.A. 2000, c. L 8, section 95. Unfortunately, this decision does not add to that small body of precedents. Although the question of whether a custodian is entitled to tax the accounts of the member of the LSA whose legal business they were appointed to manage or wind up was squarely before the court, Madam Justice Jo’Anne Strekaf declined to answer the question, deciding it instead on a more factual basis. This is to be regretted, not only because there is so little law in the area, but also because, in answering these types of questions, the courts have tended to rely on interesting analogies with others in roles that require them to stand in the shoes of another person and because the answer to the question about taxation seems like an easy one.
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Case considered: Hughes (Estate) v. Brady, 2009 ABCA 187

PDF version: Opportunity Lost

In an earlier post (Conflicting Interests, Conflicting Judgments and the Ethical Obligations of Lawyers and Judges) I commented on Justice Alan Macleod’s dismissal in part of Lawrence Hughes’ lawsuit against Shane Brady and David Gnam. Mr. Hughes’ lawsuit was brought in his capacity as the Administrator ad litem of the estate of his daughter Bethany Hughes, who died of cancer in 2002. Bethany Hughes was a mature minor and had been raised as a Jehovah’s Witness. Ms. Hughes sought to resist blood transfusions necessary for the treatment of her cancer. She was unsuccessful in doing so because it was found by Justice Adele Kent that she had been subject to undue influence from those around her, such that she could not make an independent and informed choice about the matter (B.H. (Next friend of) v. Alberta (Director of Child Welfare), 2002 ABQB 371). Mr. Hughes’ lawsuit was based on a number of allegations against Mr. Gnam, Mr. Brady, the Watch Tower Bible and Tract Society of Canada and others. Mr. Hughes alleged, inter alia, that Mr. Gnam and Mr. Brady had been in an improper conflict of interest in their representation of Ms. Hughes and that they had violated obligations of confidentiality owed to her.

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