Stratas JA's decision on this motion provides a comprehensive review of “ineffective assistance of counsel” as a ground of appeal in civil matters. This ground of appeal is often asserted in appeals from criminal convictions. Even in criminal matters it will be “very difficult” to successfully advance this ground of appeal [36], as there is a “strong presumption” that counsel’s conduct fell within the “wide range” of “reasonable professional assistance” [30]. This presumption arises because “It is notorious that different counsel will handle situations in different ways and normally most of the ways will be the product of reasonable judgment calls.” Consequently the courts will be reluctant to use hindsight to second-guess the trial decisions of counsel [31].
It will be even more difficult to raise ineffective assistance of counsel as a ground of appeal in civil matters. The ground will succeed only in “the rarest of cases,” which is “just about the highest threshold imaginable under our law” [41]. In order to meet that threshold “an appellant must demonstrate some exceedingly special interest or truly extraordinary situation” [42]. The reason is that in civil matters, this ground of appeal enmeshes an innocent third party, the respondent, in what is really a dispute between the appellant and its former counsel [40]. The appellant will normally have an adequate remedy against the counsel directly [39]:
[62] There is a perfectly adequate forum for a litigant like MediaTube who is subject to a
monetary judgment and who wishes to discover evidence of ineffective assistance: an
action for negligence, breach of fiduciary duty, or both in the provincial superior court.
There, full discovery can be had. If the litigant proves the cause of action, it can obtain up
to full compensation—the amount of the monetary judgment in the Federal Courts
system. If necessary and warranted, the litigant can come back and move for the judgment
in the Federal Court to be set aside.
On the facts of this case, after losing comprehensively at trial (see 2017 FC 6 here and 2017 FC 495 here), MediaTtube launched an appeal, with new counsel. MediaTube’s subsequently brought this motion for leave to introduce “ineffective assistance of trial counsel,” as a ground of appeal, on the basis that its former counsel, Bereskin & Parr, “was in a conflict of interest, preferred the interests of another client, and did not prosecute MediaTube’s case in the Federal Court adequately” [2]. The allegation of conflict was that during much of the period that Bereskin & Parr represented MediaTube in its action against Bell Canada for patent infringement, it also represented Microsoft and filed several (unrelated) trademark applications on its behalf. Because Bell Canada’s product said to cause the infringement, Fibe TV, used certain Microsoft software known as Mediaroom, MediaTube argued that Bereskin & Parr had an interest in soft-peddling MediaTube’s case in the infringement action [65]. There was however, “no evidence that counsel was aware of the fact that Bereskin & Parr had filed trademark applications on behalf of Microsoft,” and consequently, “there is no basis to suggest that counsel had any incentive to soft-peddle MediaTube’s case or do anything other than put MediaTube’s interests first” [70]. Moreover, there was “no evidence that the Microsoft trademark filings were of such significance that counsel was in an actual conflict of interest or that the filings involved anything more than administrative work” [72]. Consequently, Stratas JA dismissed the motion on the basis that it was clear-cut that this ground of appeal was not arguable [14, [76].
As an aside, Stratas JA’s decision also has a vivid description of the pressure of litigation:
[33] In trials, turbulence and tumult often reign. Problems and questions often pop up
unexpectedly, sometimes several at a time, often in need of quick answer. Some answers
require knowledge of fine law and minutiae in the case, with nuances both elusive and
tricky. Others draw upon something quite different, an art both mysterious and imprecise:
assessing and predicting human behaviour. During trial, while events swirl about, ever
present are the clients, sometimes anxious, sometimes emotional, always deeply invested
in the case. Days go by to the exhaustion of all. Then the end is reached—except for the
judge who is tasked to write the decision. Months can pass. During that time, memories
fade while others are distorted by hope and expectation. At last, the decision arrives and
with it, clarity and definitiveness. Some have won; some have lost. And some of the
losers, looking for any way they can to reverse the decision, and armed with 20/20
hindsight, fuelled by disappointment, conclude that their lawyers were ineffective.
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