The case of Capone v. Fotak, 2021 ONSC 7992, aff’d in 2022 ONCA 430, while taking place in the context of a family law dispute, is a helpful analogue in understanding how materials are to be properly served in the civil litigation process pursuant to the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (the “Hague Service Convention“).
But Fotak isn’t simply a discussion about the dense, esoteric legal framework surrounding abroad service of judicial and extrajudicial documents. No, a separate debate over an age-old question took place out of court.
Shortly before posting what should have been a dry commentary about the Hague Service Convention and establishing jurisdiction, I came across an online article penned by Mr. Gary Joseph (“The need for counsel to take on unpopular cases”), one of the counsel for the Respondent, as a rejoinder to a case commentary by Ms. Nathalie Boutet (“Case a wakeup call in dealing with difficult clients”). Both pieces are extremely insightful, and I highly encourage our readers to take the time to read them.
Far be it from me to wade into deep waters occupied by counsel far more experienced and senior than I, it would be remiss of me not to address the discrete issues discussed in those pieces.
In short, Ms. Boutet convincingly emphasises the utility of ADR in resolving high-conflict family law cases, both during and before the commencement of litigation, in which a client’s judgment may be “impaired” (defined as, “Being impaired happens after the overconsumption of drugs or alcohol, but also when being consumed by strong negative emotions. The dictionary definition of impaired is being in an imperfect or weakened state or condition”) by strong negative emotions. Mr. Joseph presents an equally powerful argument that counsel at large litigate cases, despite their unpopularity, where legal issues are raised that may potentially challenge our country’s laws.
Having been criminal defence counsel, I’m sympathetic to Mr. Joseph’s role in the case. I’m sensitive to the societal, professional and institutional pressures counsel face when representing difficult clients and litigating unpopular cases. In the criminal defence sphere, I should add, such an unenviable position is often compounded by a mercurial and thankless profession that finds itself plagued by declining numbers and underrepresentation of women in criminal defence practice, and significant funding cuts to legal aid programs each successive year.
What reason could possibly exist, then, for lawyers to take on these cases in the face of significant obstacles?
Mr. Joseph echoes the criminal defence bar’s raison d’être:
Of course, we are bound by our duties under the Rules of Professional Conduct, and we are morally obligated to do all we can to resolve family law disputes outside of courts. I say also though that we are bound to be critical thinkers, brave counsel and advocates for justice. Think about the social and legal changes that have arisen from counsel willing to take on unpopular clients or highly contentious legal issues (gay marriage, abortion are but two that quickly come to mind) to court.
I have no lingering doubt that encouraging ADR is, of course, always at the forefront of our minds as lawyers. Our clients would be poorly served if we were to engage in costly and frivolous litigation at every turn in pursuit of some ephemeral goal when reasonable settlement and compromise would better protect their legal interests. If there is a more efficient and cost-effective path forward to resolving a case, I would wholeheartedly embrace and recommend it to my clients.
But I’m also of the mind that our clients are entitled to resolute advocacy on their behalf. That means, as Justice Moldaver underscored in Groia v. Law Society of Upper Canada, 2018 SCC 27 at para. 73, to “raise fearlessly every issue, advance every argument and ask every question, however distasteful”.
Ours is an adversarial system, constituted with strict rules governing legal procedure, admissibility of evidence, professional conduct, examination and cross-examination. To be able to work within (and around) those confines, we have to be forceful advocates on behalf of our clients and to represent their interests to the best of our ability. We should not feel discouraged from confronting a case in a manner after careful consultation with our client no matter how unfavourable the facts are nor how low the chances of success may seem.
Thanks for reading.
Aaron Chan