While conducting his own research, the motion judge found a blog written by another lawyer at the same firm. The blog addressed the lower court’s decision, which was subsequently upheld by the Court of Appeal. The blog was written after oral argument of the motion and while the decision was under reserve.
The motion judge drew an inference that the lawyer knew of the authority at least by the date the blog was published, if not earlier. The motion judge awarded substantial indemnity costs to the opposing party.
On appeal, the Divisional Court in Blake v. Blake, 2021 ONSC 7189, stated that a court must provide a lawyer with an opportunity to be heard prior to sanctioning the lawyer’s conduct, which the motion judge did not do.
The Divisional Court held that there was a breach of procedural fairness, noting that a public finding by the court that a lawyer has breached his or her duty to the court is a finding that can have a long-lasting impact on the lawyer’s reputation.
The Divisional Court noted that judges are human and can fall into error. The Court wanted to make it clear that they understand the crushing workload the judiciary has to address on a daily basis. The Court also stated that the motion judge had not been provided with the necessary tools to determine the issue involved in the motion, which caused him to undertake his own review of the law.
In summary, the finding of professional misconduct on the part of the lawyer was overturned due to a breach of procedural fairness.