What’s worse than losing your client’s motion? Losing your client’s motion paired with a substantial costs award against your client because you neglected to bring a critical case to the court’s attention.
Blake v. Blake is an important cautionary tale for all lawyers: read all of the articles that your firm publishes. A judge may make a factual inference that you know about the case your firm wrote about, especially if you practice in a specialized firm.
In Blake v. Blake, a trustee of his mother’s estate was sued by his siblings and brought a summary judgment motion to dismiss the siblings’ claims. The trustee's counsel argued that summary judgment should be granted dismissing the claims on three grounds. The trustee’s main argument was that a notice of objection was out of time due to the expiry of a limitation period. The motion was easily dismissed.
The then year-old case Wall v. Shaw was directly on point and immediately disposed of the trustee's argument. It holds that a Notice of Objection is not subject to a limitation period under the Limitations Act, and the decision was upheld by the Court of Appeal, sitting as a panel of the Divisional Court.
Unfortunately, neither lawyer brought Wall v. Shaw to the court’s attention. Justice Daley found the case himself without any in-depth research. Critically, in November of 2018 the trustee's lawyer's firm published a detailed blog post about Wall v. Shaw. Justice Daley drew a factual inference that counsel for the trustee had knowledge of the case when the blog was published, and Justice Daley concluded that counsel for the trustee purposefully neglected to bring Wall v. Shaw to the court’s attention.
Please log in to read the full article.