Is There an Obligation to Disclose Relevant, Adverse, but Non-Binding Case Law?Kapoor v The Law Society of Saskatchewan, 2019 SKCA 85 (CanLII)
Keywords: Non-binding authority; Code of Professional Conduct; Legal Profession Act, 1990, SS 1990-91, c L-10.1
The Appellant appears in Provincial Court on behalf of a client charged with driving while disqualified; refers to a number of cases supporting his client’s position, but does not mention a particular decision, R. v. Whatmore, 2011 ABPC 320, which is contra or opposed. However, and importantly, the decision in question is non-binding.
During the course of the trial, the Trial Judge discovers the unmentioned Whatmore decision and rules against. The lawyer is later found guilty (by a hearing committee of the Respondent Law Society of Saskatchewan) of conduct unbecoming a member. The reason: failing to bring relevant and adverse case authority to the attention of a judge contrary to Saskatchewan’s Code of Professional Conduct. The hearing committee finds omission of the Whatmore decision was deliberate and, therefore, violates the general duty of candour under the Code.
The appeal is, inter alia, on the basis that it is unreasonable to conclude the failure to bring relevant and adverse but non-binding case law can constitute conduct unbecoming a lawyer. His argument is based, in part, on the fact that a specific Code provision obligates counsel to provide binding adverse authorities only. The Court of Appeal dismisses the appeal.
This case raises a fundamental issue which should be considered by anyone appearing before any Canadian tribunal or court. As stated by the Court of Appeal, “…at stake in this appeal is whether there are circumstances in which a lawyer may be obligated to give frank disclosure of non-binding case authority known to be contrary to the position for which the lawyer is advocating.” (See para. 1).
In light of the Court of Appeal’s conclusion, one may reasonably ask: how far must counsel go in support of an opposing point of view before their actions will be considered appropriate/inappropriate? Should there be limits for what will be considered “candour” in an adversarial process?
In this case, the relevant Code provisions were disputed. For the lawyer here, the Code explicitly prohibits deliberately refraining to inform a tribunal of binding authority at s. 4.01(2)(i):
When acting as an advocate, a lawyer must not:
(i) deliberately refrain from informing a tribunal of any binding authority that the lawyer considers to be directly on point and that has not been mentioned by another party
Since he did not violate the letter of s. 4.01(2)(i), the contention was that it would unreasonable to find him guilty of conduct unbecoming a lawyer. The Court of Appeal disagreed with this approach, noting that the complaint was actually rooted in s. 4.01(1) of the Code: “When acting as an advocate, a lawyer must represent the client resolutely and honourably within the limits of the law, while treating the tribunal with candour, fairness, courtesy, and respect.” (See para. 14).
The Court of Appeal concluded, in light of the particular circumstances of the case, that the hearing committee decision was not unreasonable. For the Court, the duty of candour was breached by failing to draw the Whatmore decision to the attention of the Trial Judge, even if he was not specifically obligated to disclose non-binding authorities. (See para. 57).
It remains to be seen whether the Court of Appeal will have the last word on this subject or whether an application for leave to appeal to the Supreme Court of Canada is imminent. While it may seem obvious to some (if not most) Canadian legal practitioners that there is an obligation to disclose to a tribunal any authorities which are adverse, relevant, and binding, is the notion that counsel must also supplement opposing counsel’s submissions to the tribunal by providing authorities adverse to their client’s position a matter of debate or opinion?
Counsel for the Appellant: Morris Bodnar, Q.C. (Bodnar & Campbell, Saskatoon)
Counsel for the Respondent: Tim Huber (Law Society of Saskatchewan, Regina)