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Departures From Mootness – Blake v. Blake

4 minute read

The decision of Justice Fowler Byrne in Blake v. Blake, 2020 ONSC 6331 (CanLII) is interesting and potentially significant on the doctrine of mootness and third party intervention in pending appeals.

The background facts are as follows:

  1. The lawyer, who was the moving party, previously represented the respondent K.G. Blake (“Blake”) in his personal capacity and as estate trustee in contested estate litigation.
  2. In the estate litigation, Blake brought a motion for summary judgment. The lawyer acted for Blake on the motion.
  3. On March 18, 2019, the motion judge dismissed the summary judgment motion.
  4. On July 18, 2019, the motion judge issued the decision on costs. In the costs decision, the motion judge was critical of the lawyer’s conduct during the hearing of the motion.  The motion judge found there had been a failure to advise the court of binding authorities relevant to the motion. The motion judge held there had been a breach of duty to the court and awarded substantial indemnity costs against the client Blake.
  5. Blake applied for and in December 2019 was granted leave to appeal the costs decision.
  6. In January 2020, the parties to the estate litigation, including Blake, settled the dispute, including the costs decision. In the result, Blake has no interest in pursuing the appeal of the costs decision.
  7. Subsequently, the lawyer commenced an action against Blake for payment of outstanding legal fees. Blake defended the action and pleaded a counterclaim for damages for negligence and breach of contract relying on the findings of the motion judge critical of the lawyer in the costs decision.
  8. The lawyer brought a motion to the court seeking:
  • leave to intervene in the appeal of the cost decision;
  • an order appointing amicus curiae to argue the appeal from the adverse position to the proposed intervenor, to be funded by Lawyers Professional Indemnity Company (which consented to this relief).

The court allowed the lawyer’s motion. There were ample grounds to support the intervention. The lawyer had a clear reputational and financial interest in the subject matter of the appeal. Justice Fowler Byrne noted that but for participating in the appeal, the lawyer would have no ability or recourse to have the motion judge’s finding reviewed on appeal. We can likely conclude that the lawyer had little or no opportunity to address his conduct issues in advance of the issuance of the costs decision.

Perhaps of greater interest is the reasoning and result on mootness. The parties to the litigation no longer had an interest in or wish to litigate the costs appeal. The appeal would not alter or affect the settled dispute.

The outcome of the appeal could however be important in the fee dispute litigation between the lawyer and Blake, which of course was a separate proceeding.

The court found that the costs appeal was moot. In granting the lawyer’s motion however, the court held that if certain specified factors are established, the court will allocate scarce judicial resources and adjudicate an otherwise moot appeal. The court noted that the appeal in this case would be heard in an adversarial process and reasoned that matters of general importance are at issue, including:

  • the duties of counsel in the circumstances of the matter before the motion judge;
  • the issue in appeal was judged to be of sufficient importance that leave to appeal was granted;
  • whether an adverse costs order should be made against a party based upon the conduct of the party’s lawyer;
  • the potential impact of the appeal decision on the ongoing fee dispute.

Justice Fowler Byrne, in fashioning the relief, defined specifically the issues to be addressed in the appeal:

  1. Are the findings of the motion judge about the professional conduct of the intervenor proper and supported by the evidence?
  2. What is the extent of a lawyer’s duty to the court, including when a matter has been argued and remains under reserve?
  3. Should there be cost consequences for a client if his or her lawyer has breached his or her duty to the court?

As framed and in the context in which they have arisen, these are important issues for the court and the legal profession.

The departure from the mootness doctrine in this case was a salutary exercise of judicial discretion. However, one should not assume or infer that counsel, expert or other third party witnesses subject to critical comment in reasons for judgment will have a right of appeal in circumstances where the parties to the case do not appeal. Departures from mootness will be scarce and in special circumstances. Happily, this was one such circumstance.

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William E. Pepall

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