“Commentary 1 of Rule 5.1-1 of the Rules of Professional Conduct of the Law Society of Ontario provides the foundational duty of zealous representation of every litigation lawyer:
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.
What is too often overlooked however is that the duty is not unbounded. Lawyers are not champions fighting a trial by battle. They are licensed professionals assuring the parties and society that justice will be served. The client is not entitled to win at all costs. But every client is entitled to a fair process in which she will have every proper opportunity to state her case and have the facts found and the law applied by an independent and dispassionate judge or trier.
After stating the litigator’s basic duty, the very next sentence of Commentary 1 of Rule 5.1-1 provides this overarching context:
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. [Emphasis added.]
The goal of zealous representation – of raising fearlessly every issue no matter how distasteful – is to ensure the fair hearing of the case for both parties (plural). The duty of zealousness does not require scorched earth. It requires the raising of issues consistent with the fair resolution of the matter.
It is the commitment to the fairness of the process that makes the civil justice system just. It gives the system legitimacy and justifies the societal requirement that disputes be resolved with professionals committed to justice rather than by mercenaries brandishing flamethrowers. To that end, in a civil case, counsels’ duties require them to cooperate to find the most efficient, affordable, and proportionate adjudication process for the fair resolution of their clients’ disputes.
The Supreme Court of Canada has demanded that a fair process remains paramount in civil justice, especially in relation to efficiency and affordability:
[23] Our civil justice system is premised upon the value that the process of adjudication must be fair and just. This cannot be compromised.
[24] However, undue process and protracted trials, with unnecessary expense and delay, can prevent the fair and just resolution of disputes. See: Hryniak v Mauldin, 2014 SCC 7 at para. 23.”
Slota v. Kenora-Rainy River Districts Child and Family Services, 2020 ONSC 8105 (CanLII) at 15-20