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.)


Moving for Partial Summary Judgment: Mason v. Perras Mongenais


In Mason v Perras Mongenais, 2018 ONSC 1477, Mason sued two law firms and a lawyer for professional negligence. Mr. Mason hired the lawyer Mr. Chambers to represent him in his divorce proceeding. During the divorce proceeding, Mr. Chambers retained a tax lawyer (Mr. Perras) to advise on tax matters within the divorce proceeding. Mr. Chambers asked Mr. Perras to answer three questions. Mr. Perras answered the questions. However, during a settlement conference for the divorce proceeding before a judge, Mr. Chambers called Mr. Perras to answer a question “on the fly”. The client Mr. Mason then later alleged that the lawyers did not consider the tax consequences for the agreement that was made at the settlement conference.

The defendant law firm Perras Mongenais brought a motion for a partial summary judgment (meaning that the lawsuit would continue against the other defendants but not the law firm). A motion for partial summary judgment is reserved for special cases. Specifically,  for when an issue can be easily bifurcated from those in the main action. If the risk of duplication and inconsistent findings is high by bifurcating the issues, then a trial is required.

Justice F. L. Myers granted the motion for the partial summary judgment. Justice Myers looked at what the reasonably competent practitioner would do in the circumstances. He found that “Mr. Perras provided correct answers to the questions asked as circumstances allowed.”

In granting the motion for the partial summary judgment, Justice Myers wrote that the culture shift is required. Courts should default to resolve litigation without a trial when it can be done so fairly. “The trial process is so slow and expensive that its use has made civil justice inaccessible and unattainable for most Canadians.”

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



Is Justice Blind?


Justice is blind or so they say. It is supposed to pay “no heed to the social status or personal characteristics of the litigants”.

But this simply is not true.

Race, gender, religion, socio-economic background, sexuality, ethnicity, ability, education, family upbringing, all play a role in the way judges assess the cases before them. But to what extent should a judge’s personal identity and experience be brought to bear in administering justice?

In the decision R. v. Pelletier, 2016 ONCJ 628, judge Justice Nakatsuru explicitly acknowledges his own identity and the identity of the offender in assessing the case before him. In R. v. Pelletier, Ms. Pelletier was sentenced to jail for 3 years for two robberies, arson, and an assault. In addition to jail time, she was ordered to undergo supervision. While undergoing this supervision, she tested positively for cocaine. And in doing so, was in breach of a court order.

In determining her court sentence, Justice Nakatsuru wrote:

[7] You are an indigenous person… As you know, I myself was raised on the prairies. I know firsthand the discrimination suffered by indigenous peoples in that part of our country. It is something all right thinking people are ashamed of…

[20] In addition, the risk of re-offending in your case is not just connected to an untreated addiction. It is connected to the historical injustice done to indigenous people. It is connected to your own personal indigenous history. Connected to the abuse you suffered…

[25] I find that rehabilitation is an important principle in my sentence. I find that restraint in imposing jail is important. Obviously it is important for you Ms. Pelletier. But is also important to deal with the problem we have in this country of sending too many indigenous offenders to jail. The courts recognize that problem. I have to address it in my sentencing of you.

[30] After careful reflection, Ms. Pelletier, I am sending you home. I wish you all the best in your life.

[31] After taking into account time served, the sentence will be 1 day.

It is a well written decision. It acknowledges the background of Ms. Pelletier, and it acknowledges the background of the judge. But if theoretically justice is to be blind, then it begs the following questions. To what extent should a judge’s personal background play in deciding a case? To what extent should the personal background of the litigant play in deciding the case? To what extent should justice really be blind?

Baglow v Smith: Case Comment

In Baglow v Smith, 2015 ONSC 1175, Justice Polowin writes a detailed decision regarding defamation in the online world. She states that the online forum operator (message board operator) was a publisher and therefore liable for the defamatory comments made on it. However, ultimately, she finds the defendant operator not liable because they had “successfully asserted the defence of fair comment.”

What was not addressed was whether the online forum operator could have insulated themselves from liability through an exclusion of liability clause. The exclusion of liability clause could have been contained in a click wrap agreement or a browse wrap agreement. A click wrap agreement is when you press you “Agree” to some terms and conditions (like when you download software). A browse wrap agreement contains terms and conditions for use of the website at the bottom of the screen.

The judge should have addressed whether or not such a clause would be enforceable.  Would there be any overriding public policy that would justify the court’s refusal to enforce it? Given the increasing proliferation of message boards and platforms like Yelp, it would be nice to know whether these sites can insulate themselves from liability for defamatory comments through a simple exclusion of liability clause.

In Tercon, Justice Binnie writes about when an exclusion of liability clause would be unenforceable:

Conduct approaching serious criminality or egregious fraud are but examples of well-accepted and “substantially incontestable” considerations of public policy that may override the countervailing public policy that favours freedom of contract.  Where this type of misconduct is reflected in the breach of contract, all of the circumstances should be examined very carefully by the court.  Such misconduct may disable the defendant from hiding behind the exclusion clause.  But a plaintiff who seeks to avoid the effect of an exclusion clause must identify the overriding public policy that it says outweighs the public interest in the enforcement of the contract.  In the present case, for the reasons discussed below, I do not believe Tercon has identified a relevant public policy that fulfills this requirement.

Baglow v Smith:

Patrong v Banks et al., Pleading a Drive by Shooting


In the recent case Patrong v Banks et al., 2015 ONSC 3078 the defendants are calling for an end to the lawsuit before any evidence has been put to the court. Justice Myers writes:

Why should a defendant be able to end a lawsuit that is just at its very beginning?  The defendants have not even denied the story told by the plaintiffs yet.  Nor have they written their statement of defence to set out their side of the story.  But lawsuits are expensive.  They are also a big intrusion into peoples’ lives.  They are stressful.  Because lawsuits are so important, stressful, expensive, and intrusive, the procedural law allows defendants to try to show that they should not be forced to go through the ordeal of being sued…

Mr. Patrong and his mother want to sue the police for compensation for injuries that they suffered due to the negligence of the police.  The story set out above has not yet been proven.  It is the Patrongs’ claim.

Rules have been developed to help the court test the validity of claims in cases like this.  … The law is supposed to change and develop.  If it is reasonably possible that the facts alleged by the plaintiffs might push the law in a novel but plausible way, then the claim should be allowed to proceed. If, however, assuming the facts to be true and reading the claim generously, it is plain and obvious that the plaintiffs cannot win, then I must dismiss the lawsuit now and save everyone the trouble of dealing with it further for no reason.  R. v. Imperial Tobacco Canada Ltd.2011 SCC 42 (CanLII)Hunt v. Carey Canada Inc., 1990 CanLII 90 (SCC)[1990] 2 S.C.R. 959.

Ultimately Justice Myers allowed the statement of claim to stand. He states that it is not plain and obvious that the case cannot succeed. He notes in passing that “one stops to wonder whether Detective Banks would have made the same decision … if Riley had been headed into Rosedale or Forest Hill rather than into Malvern.  But that is for another day. There are good reasons to find a duty of care on the facts alleged...”

Find the excellent case here: