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Representation - Lawyers - Duty to Court. Healthy Lifestyle Medical Group Inc. v. Chand Morningside Plaza Inc.
In Healthy Lifestyle Medical Group Inc. v. Chand Morningside Plaza Inc. (Ont CA, 2019) the Court of Appeal explained a lawyer's duty to the court as follows:[8] While this is sufficient to dispose of the award of costs, we feel compelled to address an issue that arose in the cost submissions.
[9] Mr. Rosenstein took this position in his costs factum:There is no legal obligation on an opposing party, much less opposing counsel, to review the entire record below to determine whether, and if so what, has been omitted by the appellant from its appeal materials. Further, assuming that the opposing party does at some later point realize that any portion of the record below has been omitted by the appellant, there is no basis upon which to require that the respondent has an affirmative obligation to supplement the record in a manner which assists the appellant.
[10] We reject this excessively adversarial position. In our view the issue here is not about requiring one party to assist the other, it is about counsel ensuring that the pleadings before the lower court which are germane to the issue on appeal are accurately put before this court.
[11] The Rules of Civil Procedure, R.R.O. 1990, Reg. 194, oblige the parties and their counsel to ensure that the court has before it all of the material necessary for the court to do justice. This is the intended result of the combined operation of r. 61.10 prescribing the appeal book and compendium, r. 61.12 (7) prescribing the respondent’s compendium, and r. 61.10.1 prescribing the exhibit book.
[12] Rule 61.10 (1) (f) obliges the appellant to include the relevant pleadings in the appeal book and compendium. No correlative duty is placed on the respondent. There is therefore a wisp of technical support for Mr. Rosenstein’s assertion, although not more than a wisp. When, for whatever reason, the appellant omits from its materials a pleading central to the decision below and the appeal, a respondent should correct this and not make arguments on the basis that the record before the lower court was different than it actually was. And when an appellant learns that its materials omitted such a pleading it should seek leave to correct the record and revise its materials, not persist in the original error. To view the matter otherwise would be to adopt an unduly technical view of the duty of counsel.
[13] These rules instantiate the foundational “philosophical mandate” of the Rules, which is found in r. 1.04 (1):These rules shall be liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits. [14] The Manitoba Court of Appeal rightly held: “[C]ompliance with the Rules is desirable not as a pedantic exercise, but as a means of properly informing the Court of the relevant facts, of directing the Court’s attention to the evidence relied upon and of defining the issues to be argued”: Kingswood Estates Inc. v. Hildebrand, [1995] M.J. No. 645 (C.A.), at para. 6.
[15] Even though ours is an adversarial system, its goal is to pursue truth in the interests of justice, in order to achieve the right result in the dispute for the right reason, according to law. There are many examples of ways in which rules and practices necessarily mitigate the adversarial nature of our system of justice[1].
[16] There is no doubt that had this appeal proceeded on the basis that the the motion judge did not have before her the Amended Statement of Defence, which was the basis put forward by both the appellant and the respondent until the intervenors set the record straight, and not revised by the appellant until during oral argument, this court would have been tacitly misled on what the motion judge had before her and on the proper interpretation of her decision. This cannot be countenanced.
[17] A party to an appeal, led by counsel, has the obligation to provide to the court any material necessary for the court to have a full appreciation of the matter under appeal, whether or not the material supports the party’s position. In this appeal neither counsel took this obligation seriously enough after becoming aware that the Amended Statement of Defence had been omitted from their respective appeal materials.
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