In the legal world, mutual respect between counsel and adherence to professional standards are not just niceties – they are the cornerstone of a functional and effective justice system. A recent case, Singh v Braich, provides a stark reminder that lawyers have a professional responsibility to be courteous, particularly in interactions with junior colleagues, and highlights the consequences of abusing the Rules of Civil Procedure.[1]
A Discovery Gone Awry
Singh v Braich centered on an examination for discovery gone wrong. Twenty minutes into the examination, counsel for the defendant asked the plaintiff about a wrist injury. The plaintiff’s counsel objected, explaining that questions regarding the plaintiff’s medical history more than three years preceding the accident at issue were not going to be answered. This objection was not unreasonable, regardless of whether it was ultimately correct. After a protracted period of interrupting and speaking over the plaintiff’s counsel, the defendant’s counsel abruptly adjourned the examination. He then brought a motion to compel the plaintiff to answer the objected questions, relying on Rule 34.14. The court dismissed the motion and held that the premature adjournment was unjustified.
An Obligation to be Courteous
Senior counsel plays a pivotal role in the legal profession. It is incumbent upon them to set the tone for professional conduct, especially when dealing with their junior counterparts. The defendant’s counsel in Singh v Braich spent over 40 years at the bar. Rather than taking the opportunity, as counsel often do, to move forward from an issue of disagreement on an examination, he behaved in a manner that amounted to bullying. On the other hand, the court commended the plaintiff’s counsel for suggesting to resolve the issue civilly through an off-record discussion. The court held that the senior lawyer would have been “well advised to listen to his friend’s suggestion.”[2] Unfortunately, bullying of junior lawyers by senior lawyers happens. This does not only reflect badly on the senior lawyer involved but on the profession as a whole.
Repercussions of Abusing the Rules
This case also highlights the repercussions of improperly using the Rules to facilitate an inappropriate procedural maneuver. Rule 34.14 allows for adjournments during discovery in specific circumstances, namely, when “discovery is rendered futile.”[3] There is a high threshold to meet this test. Normally, counsel has to interfere inappropriately to make the examination impossible or futile. A disagreement over an objection does not meet this threshold. Here, there was no indication that the discovery became futile. It was the first refusal of the discovery, and the defendant’s counsel admitted that there were more areas to explore. It was clear that he abused the Rules as part of his litigation strategy, and the court clarified that it would not condone such behavior. The court refused to rule on the propriety of the defendant’s question and ordered the examination to resume where it left off.
Singh v Braich serves as a cautionary tale to the legal community. Lawyers should conduct themselves professionally, even in out-of-court proceedings and, especially with more junior lawyers. Failure to do so may cost them not only their reputation but also adverse consequences for their clients.
Equally important is the issue of bullying. This issue arises in many contexts in the legal profession, but it is not an uncommon experience between senior and junior lawyers. A professional should not try to bully a colleague, let alone a junior colleague, but some lawyers appear to believe this is an appropriate or good strategy. If your best strategy is to be a bully, you should consider whether this is the correct profession for you. In any event, lawyers should always treat their colleagues with respect and courtesy and should treat senior and junior colleagues alike.
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About the Authors
Mednick is a Partner in Dickinson Wright’s Commercial Litigation Group with a particular focus on business disputes. He can be reached at 416-777-4021 or MMednick@dickinsonwright.com. To access his biography, click here.
Brian Radnoff is a Partner in Dickinson Wright’s Toronto office. He can be reached at 416-777-4046 or BRadnoff@dickinsonwright.com. His bio can be accessed here.
Juli Kim is an Articling Student in Dickinson Wright’s Toronto office. She can be reached at 416-644-2829 or JKim@dickinsonwright.com. Her bio can be accessed here.
[1] 2023 ONSC 5053.
[2] Ibid, at para 24.
[3] Rules of Civil Procedure, RRO 1990, Reg 194.