The Rules of Professional Courtesy: Recent Lessons and Reminders from Caselaw on Civility

  • 28 novembre 2023
  • Geneviève Fauteux

We all know how derailing it can be to have a file opposite counsel who is inflexible and unreasonable concerning procedural issues that routinely arise in adversarial proceedings. Recent decisions from the Ontario Superior Court of Justice remind us that conducting ourselves with professional courtesy – and civility – when faced with reasonable requests for extensions is not just the right thing to do; it is something that lawyers are required to do.

Communicate, cooperate and use common sense

In Marrese v. Moscone (2023 ONSC 5857), the Court was scheduled to hear a motion for directions further to a will challenge. The motion was scheduled without seeking input from opposing counsel and made returnable two and a half weeks later. The Notice of Motion was served the evening before a long weekend. Lengthy materials were served the following week, and the applicant was essentially left with 10 business days to respond. Some discussions were held about an adjournment, but ultimately, the hearing for the motion went ahead where, at the outset, the respondent formally requested an adjournment.

Justice Myers remarked that this motion was not truly “urgent”. Then, citing the Rules of Professional Conduct and the Advocates’ Society’s Principles of Civility and Professionalism for Advocates (see principles 25, 46 and 49), the Court explained that the duty owed to our clients in adversarial proceedings must be discharged fairly and honourably, which means, in this context :

  • Counsel are required to canvass dates with their colleagues before scheduling a motion;
  • Counsel are required to consent to adjournments absent substantive prejudice to their client;
  • Counsel should not condition consent to an adjournment on unnecessary and unreasonable demands.

Finally, Justice Myers declined to make an order altogether, unless it was on consent – reminding counsel to “exercise the ‘3-Cs’” – communication, cooperation and common sense.