Uncivil Conduct Leads to Fresh Discoveries

One of the issues addressed in the recent decision of Paterson v. HMQ Ontario, 2021 ONSC 6295, is the overarching importance of civility between counsel. Justice Di Luca said that this may be even more important at discoveries since there is no judge in the room. His Honour stated:

[47] While “trials are not tea parties” and significant leeway must be granted for forceful advocacy, when matters descend into the realm of personal attacks and ridicule, the goals of professionalism and ethical advocacy are unquestionably undermined. This is so even when, as at discovery, there is no judge in the room. Indeed, the onus on counsel to act civilly and professionally may arguably be heightened when proceedings take place in the absence of a judicial officer who can quickly stop any uncivil conduct. More to the point, the absence of the moderating presence of a judicial officer should not be viewed as a licence to engage in bullying or other similarly aggressive and unwarranted behaviour that would never be appropriate before the court. 

Justice Di Luca further indicated that “[u]ncivil conduct undermines the adversarial process in a number of ways; it can prejudice a client’s position, it is distracting and can serve to draw attention away from the actual task at hand, it makes participation in the justice system more stressful for everyone including witnesses and opposing counsel, and it erodes public confidence in the administration of justice”.

In the case at bar, Justice Di Luca found that defence counsel’s conduct devolved into unwarranted personal attacks and ridicule. Because of this, and because defence counsel took an erroneous position on relevance, the purpose of the discovery process was thwarted. Justice Di Luca ordered the defendants to attend fresh discoveries.