Ward v. Ward: Legal Professional Obligations

This case is about counsel writing a letter to a judge during the course of the case without the permission from the opposing counsel (there was no consent). The letter was regarding various issues within the case (e.g. child support).

Opposing counsel wanted to bring a motion for a mistrial given the presiding judge was provided with the letter that opposing counsel never consented to. The Court denied the Motion for a mistrial as they felt there was a breach of the rules, but it did not rise to the level of being egregious. Rule 1.09 of the Ontario Rules of Civil Procedure states the following:

When a proceeding is pending before the court, no party to the proceeding and no party’s lawyer shall communicate about the proceeding with a judge, master or case management master out of court, directly or indirectly, unless,

  1. All the parties consent, in advance, to the out-of-court communication; or
  2. the court directs otherwise.

Consequently, the Court decided that bringing a motion for other relief was warranted. The Court felt that a cost sanction was an appropriate remedy for the circumstances, and the cost award was for $15,000.00. The Court discussed principles in which they consider when determining the reasonableness of cost awards.

The principles include the following:

  1. The Court uses their discretion in light of the specific facts and circumstances of the case;
  2. A consideration of experience, rates charged and hours spent is appropriate, but is subject to the overriding principle of reasonableness as applied to the factual matrix of the particular case;
  3. The reasonable expectation of the unsuccessful party is one of the factors to be considered in determining an amount that is fair and reasonable;
  4. The court should seek to avoid inconsistency with comparable awards in other cases;
  5. The court should seek to balance the indemnity principle with the fundamental objective of access to justice; and
  6. A discretionary decision of a case-management judge in a class proceeding is entitled to a very high level of deference.

It is important to note that lawyers who do not meet their professional obligations can be disciplined both by the courts and the Law Society of Upper Canada.

Andrew Feldstein

The Feldstein Family Law Group (FFLG) is one the largest family law firms that practices Family Law exclusively in Greater Toronto, with ten lawyers and counting. The boutique law firm has won the Top Choice Award for Family Law™ in Toronto for the past twelve years (2007 to 2018 inclusive).

Managing Partner Andrew Feldstein has been practicing family law for more than 20 years and frequently comments on Family Law issues through the media. The Feldstein Family Law Group offers vast written, video, and media resources on its website to those who find that they need to end their relationship.

This Post Has One Comment
  1. This case reminds us of the importance of the role that cost consequences can play in the context of litigation. Whenever parties bring their matter before the Courts they are opening themselves up to the possibility of cost consequences being order against them if they take a position that is not reasonable or causes a waste of judicial resources. This case serves as a sobering reminder that as lawyers sometimes the actions we take can have significant consequences to our client and therefore whenever we pursue a course of action in court we must be cognisant of the possible repercussions to our client and ourselves.

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