Date: Thu, 5 Jul 2007 17:45

From: David Cheifetz

Subject: Order in the Court

I doubt there's a duty of care owed by the cross-examining lawyer to be nice. Litigation is adversarial by definition: sometimes nasty, often brutish, and quite often not short.

If the conduct is outside the pale, that's a matter for regulation by the body governing lawyers' conduct.

Here's what an Ontario judge wrote recently, in Succar v. Wawanesa Mutual Insurance Company, 2006 CanLII 38872 about the plaintiff's attempt to add Wawanesa's lawyers as a defendant. The claim was an action on an insurance policy for statutory (motor vehicle) accident benefits.

[18] In exercising my discretion, the overarching consideration must be that of public policy. In my opinion, adding Bell Temple as a party based upon the allegations in the proposed Statement of Claim would undermine time honoured principles of solicitor-client privilege and solicitor-client relations. Bell Temple owes no duty of care to the Plaintiff. Rather, Bell Temple's duty is to protect its client within the ethical mandates of the Law Society of Upper Canada: see Manufacturing Co. v. ZTW Properties Inc., (1997), 38 O.R. (3d) 319 (C.A.); Simpson v. Gafar, [2000] O.J. No. 3352 (S.C.J.) and Brignolio v. Desmarais, Keenan, [1995] O.J. No. 3499 (Gen. Div.). It follows that there can be no viable claim against a lawyer for interference with contractual relations because a lawyer offers legal advice to a client as to their rights in respect of the contract. To hold otherwise would effectively mean that lawyers would not be at liberty to freely advise their clients with respect to their rights and obligations without fear of being sued by a third party to whom they owe no duty: see 1198728 Ontario Inc. v. Tally Capital Ltd., [1998] O.J. No. 23 (Gen. Div.).

[19] There is no evidence that Bell Temple advised their clients to unlawfully breach any contract or to do anything improper or unlawful. In the circumstances, the proposed addition of Bell Temple as a party defendant is refused.

----- Original Message ----
From: Vaughan Black
To: Jason Neyers  
Sent: Thursday, July 5, 2007 9:03:29 AM
Subject: Re: ODG: Order in the Court

I wonder whether someone might be torted while in the witness box. Could a witness sue a cross-examining lawyer for intentional infliction of emotional abuse?

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