Lawyers have a professional obligation to not take advantage of other lawyers’ slips or mistakes not going to the merits of a matter. This obligation was at the forefront of the court’s decision in Khoshaba v. Gore Mutual Insurance Company.
The applicant applied for statutory accident benefits. The insurer required the applicant to submit to an examination under oath.
The examination under oath was scheduled for 1:00 p.m. However, the insurer’s lawyer had mistakenly diarized the time of the examination as 2:00 p.m.
The applicant and his lawyer waited at the examiner’s office until 1:30 p.m. and then left. The applicant’s lawyer did not make inquiries on whether the insurer’s lawyer was on his way.
The insurer’s lawyer arrived at the examiner’s office at 1:40 p.m. He was not able to get through to the applicant’s lawyer. The examination did not proceed.
The applicant’s lawyer then took the position that his client had submitted to an examination under oath and that the applicant was not required to submit to a further examination.
Justice Myers rejected this position. He noted that, had the applicant’s lawyer communicated with the insurer’s lawyer, he would have discovered that the insurer’s lawyer was moments away.
Further, Justice Myers stated that, once the applicant’s lawyer learned that the insurer’s lawyer was late due to an innocent error, it was inappropriate for the applicant’s lawyer to advance an argument and bring proceedings claiming that a scheduling mistake prevented the insurer from conducting an examination under oath.
Justice Myers referred to the Rules of Professional Conduct which indicate that a lawyer shall avoid sharp practice and shall not take advantage of or act without fair warning upon slips, irregularities, or mistakes on the part of other legal practitioners not going to the merits or involving the sacrifice of a client’s rights.
The applicant’s lawyer had an obligation to communicate with the insurer’s lawyer and to agree to a brief delay of the examination, regardless of his client’s wishes.