Ontario – court directs attorney to appear and participate in adjudicative proceeding – #049

The Ontario Superior Court in Fontaine v. Canada (Attorney General), 2018 ONSC 357 relied in part on professional conduct rules to order an attorney to appear and participate in an adjudicative proceeding.  The reasoning might serve as guidance for similar orders to ensure that parties complete their undertaking to arbitrate.  

The underlying facts included an attorney’s threat to not attend the resumption of her client’s Independent Assessment Process (“IAP”), a process created and conducted under the Indian Residential Schools Settlement Agreement (“IRSSA”).  The resumption involved closing submissions scheduled to take place before an IAP Adjudicator on January 19, 2018 further to a court order to resume the IAP for the client.

The threat of non-attendance in the adjudicative proceeding was made in the attorney’s January 12, 2018 correspondence with Court Counsel.   Mr. Justice Paul M. Perell summarized the status of certain steps in the file which lead to the order to resume the IAP and to the attorney’s threat of non-attendance.

He regarded that threat as disrespectful to IAP Adjudicators and to be a derogation of the attorney’s duties to her client and as an officer of the court.  Perell J. also wrote that the attorney’s allegations (excerpted in the reasons) diminish public confidence in the Court’s supervision of the IRSSA’s implementation and administration.  His immediate concern was that the attorney’s actions risked interfering with the orderly conduct of her client’s ongoing IAP claim.

The case is fact specific not only in the content of the exchanges and allegations made but also in terms of the underlying client’s rights in issue and the point at which the threat of non-attendance occurred in the resolution of those rights.  Key passages in the reasons clearly speak to the impact on a court’s process and that the fact that the IAP protected by the court was an extension of an ongoing process closely supervised by that court.

Some might therefore seek to distinguish the result and reasoning in the case as an exercise of the court’s authority over its own process and the process the court creates to give effect its orders.  Perell J. expressly remarked that, because the conduct of the attorney was “possibly contemptuous”, his direction was “made as an incident of the court’s essential and inherent power to enable the orderly conduct of the court’s business and to prevent interference with the court’s proceedings”.

That said, the reasoning is broader than just court proceedings and can be of application, if not guidance, in commercial arbitration.  That reasoning in part refers to two key sources of authority on which the order to appear and to participate rests:

First, the reasoning refers to the court’s role in protecting the adjudicative process of adjudicators fulfilling roles under the supervision of the court.   The courts also exercise a supervisory role over commercial arbitration. The reasoning identifies categories of attorney conduct which might also be experienced in commercial arbitration.  Similar conduct might prompt an application to the court for assistance to oblige a party’s participation in lieu of having the arbitration proceeding by default.

Second, the reasoning specifically relies on section 5.1-1 of the Law Society of Ontario’s Rules of Professional Conduct (“Rules”). The Rules mention that when acting as an advocate, “a lawyer shall represent the client resolutely and honourably within the limits of the law while treating the tribunal with candour, fairness, courtesy, and respect”.

The commentary to section 5.1-1, particularly paragraph 2, expressly mentions that section 5.1-1 applies to appearances and proceedings before “arbitrators”.

Commentary

 [1] Role in Adversarial Proceedings – In adversarial proceedings, the lawyer has a duty to the client to raise fearlessly every issue, advance every argument and ask every question, however distasteful, that the lawyer thinks will help the client’s case and to endeavour to obtain for the client the benefit of every remedy and defence authorized by law. The lawyer must discharge this duty by fair and honourable means, without illegality and in a manner that is consistent with the lawyer’s duty to treat the tribunal with candour, fairness, courtesy and respect and in a way that promotes the parties’ right to a fair hearing in which justice can be done. Maintaining dignity, decorum and courtesy in the courtroom is not an empty formality because, unless order is maintained, rights cannot be protected.

 [2] This rule applies to the lawyer as advocate, and therefore extends not only to court proceedings but also to appearances and proceedings before boards, administrative tribunals, arbitrators, mediators and others who resolve disputes, regardless of their function or the informality of their procedures.

 [3] The lawyer’s function as advocate is openly and necessarily partisan. Accordingly, the lawyer is not obliged (except as required by law or under these rules and subject to the duties of a prosecutor set out below) to assist an adversary or advance matters harmful to the client’s case.

The commentary draws no distinction for the listed functions as to whether they must be created by statute, such as a labour arbitrator created under provincial legislation.  On the face of the commentary to section 5.1-1, the rule could apply to private consensual commercial arbitration as much as arbitration imposed by legislation.

The reasons for judgment mention allegations involving the court’s decision making which Perell J.’s appreciated “as grounds to derail the ongoing proceeding” and prompted him to intervene.   A similar concern about similar allegations which might ‘derail’ an arbitration process might justify application to the court for an order designed to complete a necessary step in an important process.