“During the application hearing, counsel for the applicant somehow decided that it was appropriate during opposing counsel’s submissions to express themselves by way of, among other things, eye rolling, head shaking, grunting, snickering, guffawing and loud muttering. This behaviour culminated in one of them leaning back in his chair, throwing both hands in the air and laughing in a gleeful moment of triumph during a particularly engaging exchange between opposing counsel and the bench. Apparently, applicant’s counsel felt that he had scored some major point during my questioning of the respondent’s counsel and wanted to ensure that everyone else was aware of that victory.
I addressed this misconduct at the applicable time during the hearing and, on my insistence, the once-exultant counsel apologized to his colleague. However, the ignoble display continued – albeit mutedly and intermittently – for the rest of the hearing.
Unfortunately, the behaviour engaged in by applicant’s counsel is neither a new nor a rare phenomenon. Too often, counsel seem to believe that enthusiastically attempting to disrupt and/or demean opposing counsel during the latter’s oral submissions is one of the hallmarks of an effective advocate. It is not. Too often, counsel seem to believe that “rolling eyes, dancing eyebrows and other mannerisms” (See: The Honourable Justice Joseph W. Quinn. (February 12, 2012). A judge’s view: things lawyers do that annoy judges; things they do that impress judges [paper presentation]. 2012 Family Law Institute, Toronto, Ontario, Canada.) whilst opposing counsel is making submissions to the court constitute proper critique or response to those submissions. They are not.
Counsel’s submissions to the court are to be made in only two ways: written argument and oral argument. No proper submissions are made by way of emanations from counsel (be they oral, non-verbal, audible or inaudible) when another justice participant is speaking. Indeed, during a court hearing, there should be nothing from counsel but complete oral and non-verbal silence while someone else “has the floor”. Anything other than such complete silence is not only distracting to the court, but is also profoundly disruptive, disrespectful and demeaning to everyone in that courtroom.
I fully acknowledge that, in the “heat of battle”, human emotions run high and can sometimes get the better of even the most seasoned advocate. However, I am unable to countenance any circumstances under which the type of sophomoric behaviour too often demonstrated by counsel could possibly be excusable, let alone acceptable. It is not only discourteous and disruptive, but is also antithetical to the peaceful and orderly resolution of disputes and undermines procedural and substantive fairness (see: R. v Beals, 2023 ONSC 555, at para. 148).
The type of misconduct demonstrated by the applicant’s counsel in the case-at-bar significantly delays the timely and effective administration of justice, exacts an unnecessary and unacceptable additional cost on litigants and erodes the public’s respect for the legal profession and, more importantly, for the rule of law. The parties, counsel, other justice participants, the public and the administration of justice deserve far better than what too many counsel seem to have to offer.
Whether the culprit is a lack of proper mentoring, an overconsumption of courtroom television shows, extended periods of time without in-person human interaction or something else entirely, a fundamental shift in mindset is required to stem this tide.
It has long been a tradition and requirement of etiquette in our courts that counsel refer to their counterpart as their “friend”. While most counsel use this appellation, painfully few appear to understand that the fundamental intention underlying its use is to remind counsel of their duty to treat opposing counsel with professionalism, courtesy, respect and civility. All counsel would be well advised to always keep this top of mind, lest the already threadbare state of professionalism and civility between them deteriorate into the irremediable.”
China Yantai Friction Co. Ltd. v Novalex Inc., 2024 ONSC 608 (CanLII) at 20-27