Cost Award from Blogging: Blake v Blake

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If you or your firm blogs about a court decision, then the court will infer that you knew about the case.

In Blake v. Blake, 2019 ONSC 4062, Justice Daley wrote about the consequences of blogging about a case but failing to bring that case to the court’s attention.  Counsel for the respondent blogged about a leading case, but did not tell the court about it. Instead, through research of his own, Justice Daley found the leading case and then found the firm blog post on it. As a result, Justice Daley awarded substantial indemnity costs against the respondents.

At paragraph 13, Justice Daley writes that “The conduct of counsel for the respondents gives rise to some very serious concerns regarding counsel’s understanding and recognition of his duty as an officer of the court and his duty of candor with counsel opposite.”

[22]      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?”

[23]      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. This is a small specialized firm practicing in the area of estate litigation.

Justice Daley concluded that counsel for the respondent knew about the case and failed to bring it to his attention. By failing to bring the decision to the attention of the court, Justice Daley held that counsel misled the court.

At paragraphs 31-32, Justice Daley writes: “… while a lawyer does not need to assist an adversary and is permitted to be silent on certain matters, they are not permitted to actively mislead the court.” Counsel are also not permitted to be ignorant of the law. “Thus, while this may not amount to a deliberate misrepresentation, counsel nevertheless may be found to be in breach of their duty to the court for failing to have conducted reasonable research as to relevant authorities.”

The moral of the story is that counsel has a duty to bring to the court’s attention leading, relevant cases, even if it is contrary to their position.

(Views are my own and do not reflect the views of any organization.)

 

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