Month: March 2022

“The wife seeks disclosure of the husband’s confidential communications with his lawyer wherein he gave instructions to his lawyer about disclosure; however, there is nothing in the husband’s evidence about his instructions to counsel.  His evidence is that he relied on his advisers, including his lawyer, to prepare his disclosure.

There is no suggestion that the husband has expressly waived privilege. The question is whether, by giving evidence that he relied on his advisers, including his lawyer, to make his financial disclosure during the negotiation of the marriage contract, the husband has waived privilege over his lawyer’s file.

In my view, the husband’s evidence does not rise to the level of a waiver of privilege.

Family law lawyers routinely prepare financial disclosure, whether in the context of proceedings arising after relationship breakdown or the preparation of a domestic contract. The fact that they do so, and that clients rely on them to do so, is not a disclosure of confidential communications. I agree with the husband that it is no different than a party saying they relied on their lawyer to do her job.

If saying that one relied on one’s lawyer was enough to find a waiver of privilege, privilege frequently would be waived. In my view, such an approach to waiver of privilege would be inconsistent with the guidance from the Supreme Court of Canada that privilege must be as close to absolute as possible.

I adopt the reasoning in Spicer, supra, [2015 ONSC 4175] to the effect that the mere disclosure of the receipt and reliance upon legal advice is not sufficient to give rise to a waiver of privilege. In this case, the husband has not given any evidence that legal advice he received when negotiating the marriage contract formed the basis of his state of mind, disclosed legal advice he received from his lawyer, or relied upon or put in evidence any legal advice he received. Simply saying he relied on his lawyer is not enough to waive privilege.”

            Montemarano v. Montemarano, 2020 ONSC 1393 (CanLII) at 21-26

“Both parties on this motion agree that an order awarding costs against a lawyer personally should only be ordered in exceptional circumstances and are rare.

Rule 24(9) of the Family Law Rules states:

(9) If a party’s lawyer or agent has run up costs without reasonable cause or has wasted costs, the court may, on motion or on its own initiative, after giving the lawyer or agent an opportunity to be heard,

…

(c) order the lawyer or agent personally to pay the costs of any party.

The Supreme Court of Canada held that costs are rewarded as compensation for the successful party and not to punish a lawyer: see Young v. Young, 1993 CanLII 34 (SCC), [1993] 4 S.C.R. 3 and F.(V.) v. F.(J.), 2016 ONCJ 759, 86 R.F.L. (7th) 452, at paras. 9-11. Courts must be extremely cautious in awarding costs personally against a lawyer, given the duties upon a lawyer to guard confidentiality of instructions and to bring forward with courage even unpopular cases or positions (see Young, at para. 263).

Although the rules are not identical, the test used under Rule 57.07(1) of the Rules of Civil Procedure, applies to rule 24(9) of the Family Law Rules.  The two-part test was set out by the Court of Appeal in Galganov v. Russell, 2012 ONCA 410, 350 D.L.R. (4th) 679. Specifically, the court must first determine if the lawyer’s conduct falls within the ambit of the rule in the sense that he or she caused costs to be incurred or wasted unnecessarily or without reasonable cause; and second, as a matter for discretion whether an order for costs personally is warranted in the circumstances of the case: see paras. 18 and 22 and see F.(V.) v. F. (J.).

In Covriga v. Covriga, 2010 CarswellOnt 3602 (SCJ), Justice Horkins found that the lawyer supported and encouraged her client’s unreasonable conduct and ordered the lawyer to pay costs: see paras. 111 and 184.  The lawyer’s unreasonable conduct was described as “shocking” (at para. 185).  Specifically, Justice Horkins found that the wife did not do what she did alone. The lawyer must bear responsibility for much of the conduct. She “had a duty to take all reasonable steps to ensure that her client complied with court orders and the Family Law Rules.  Instead, she pursued Ms. Covriga’s application with a breathtaking disregard for the Family Law Rules, court orders and the Rules of Professional Conduct”: at para. 185.  The lawyer’s behaviour was found to have “aggravated and perpetuated the existing problems and numerous new problems arose”: at para. 186. A lawyer may not rely on a client’s instructions as a defence when a lawyer acts in a manner inconsistent with the goals of the justice system: MacMull v. MacMull, 2015 ONSC 5667, 258 A.C.W.S. (3d) 342, at para. 19. I find that much of the description of the lawyer in Justice Horkin’s order aptly describes Mr. Maltz’s behaviour in the case before me.

Amongst other reasons, the Court of Appeal in Galganov stated that the cost rule is intended to apply “when a lawyer pursues a goal which is clearly unattainable or is clearly derelict in his or her duties as an officer of the court” (emphasis added): at para. 18; see also F.(V.) v. F.(J.), at para. 11. In determining whether the rule applies, the court must examine “the entire course of the litigation that went on before the application judge”: Galganov, at para. 20; F.(V.) v. F.(J.), at para. 11. This requires a “holistic examination of the lawyer’s conduct” in order to provide an “accurate tempered assessment”: Galganov, at para. 20; F.(V.) v. F.(J.), at para. 11. As stated by Justice George Czutrin in R. (C.) v. Children’s Aid Society of Hamilton,2004 CanLII 34407 (ON SC), 2004 CarswellOnt 1414 (S.C.), any person whose conduct “flies in the face” of the primary goals of the Family Law Rules may be subject to cost consequences (at para. 51). In that case, he was referring to costs ordered against the Office of the Children’s Lawyer, but the statement is equally applicable in this case.

There is no bad faith requirement in the Family Law Rules: see Covriga at para. 11.  In MacMull, Justice McGee held that “The wording of Rule 24(9) as it refers to ‘fault’ within the heading, requires a finding of negligence, inappropriate conduct, or abuse of process on the part of the lawyer, even if the conduct does not amount to bad faith”: at para. 18.”

            Haroon v. Sheikh, 2020 ONSC 1284 (CanLII) at 44-50

“This court’s decision in Abu-Saud v. Abu-Saud, 2020 ONCA 824, reaffirmed that an audience will not be granted to a party who is in default of court orders: see also Dickie v. Dickie, 2007 SCC 8, [2007] 1 S.C.R. 346, at para. 6.

…

The Family Law Rules, O Reg 114/99, provide that the court may deal with a party’s failure to follow the rules, including a failure to make proper disclosure, by striking out any or all documents filed by that party. This consequence stems from the need to sanction and deter non-disclosure of assets, which has been described as the “cancer of family law”: Leskun v. Leskun, 2006 SCC 25, [2006] 1 S.C.R. 920, at para. 4, citing Cunha v. Cunha (1994), 1994 CanLII 3195 (BC SC), 99 B.C.L.R. 93 (S.C.).

…

Rule 1(8.4) of the Family Law Rules, which establishes the consequences of striking out documents, does not automatically exclude the defaulting party from the proceeding. Instead, it intentionally removes the party’s entitlement to notice and participation. The court may nevertheless permit participation by the defaulting party, to the extent it will assist the court.”

         Manchanda v. Thethi, 2021 ONCA 127 (CanLII) at 4, 6 & 10