In estate litigation and substitute decision-making disputes, it is not uncommon for the relationship between the parties to become adversarial. However, there is also a real danger that a client’s relationship with their own lawyer could become antagonistic, particularly in high stakes litigation. The client may disagree with their counsel’s strategy, or question their lawyer’s approach to the dispute, such as what evidence counsel tries to admit during the proceedings and what evidence counsel leaves out.

When a client disagrees with their lawyer in a matter that proceeds to litigation and then loses in court, an interesting question that occasionally arises is whether such a disagreement can constitute grounds to appeal.

In fact, this question was recently considered by the British Columbia Court of Appeal in Jagpal v Samra, 2024 BCCA 384. The appellant in this case challenged a chamber judge’s declaration that her mother was incapable of managing her own affairs and argued that during the original hearing, “her counsel failed to follow her instructions, did not present evidence that she considered important, and missed filing deadlines.” Reframing the appellant’s argument, the Court of Appeal considered whether there had been “procedural unfairness in the court below,” and more specifically, whether the appeal should be allowed on the basis of the ineffective assistance of counsel.

Before discussing the court’s decision in Jagpal further, it merits noting that this is not the first civil appeal in 2024 in which the ineffective assistance of counsel was raised as a ground of appeal. It was also put to the British Columbia Court of Appeal earlier this year in Nguyen v. 1108911 B.C. Ltd., 2024 BCCA 48. Writing for the court, Justice Voith explained in Nguyen that while the ineffective assistance of counsel is a well-established ground of appeal in criminal matters, civil appeals “are fundamentally different” in a number of ways. For one, whereas the interests engaged in civil litigation tend to be financial in nature, criminal appeals often engage the appellant’s liberty interests and Charter rights.

The Court also noted in Nguyen that there is a marked difference between the role of the Crown in criminal proceedings as compared to the role of the opposing party in civil litigation. The Crown is required to consider the administration of justice and be alert to miscarriages of justice in criminal proceedings, whereas the opposing party in civil proceedings has no such obligation.

The Court of Appeal ultimately dismissed the appeal in Jagpal, holding:

An appellant arguing that a civil appeal should be allowed because of ineffective assistance of counsel will succeed only in extraordinary circumstances. That is because the lawyer’s competence is really an issue between the lawyer and the client. It does not involve the respondent at all. Allowing the appeal because of the conduct of the appellant’s counsel effectively penalizes the respondent for something with which they were not involved. The appellant may obtain a remedy by pursuing a civil claim against their lawyer[.]

It is interesting to see that the British Columbia Court of Appeal took care not to close the door completely on appeals premised on the ineffective assistance of counsel. In both Jagpal and Nguyen, the court quoted the decision of the Court of Appeal for Ontario in D.W. v. White, 2004 CanLII 22543, affirming that a civil appeal premised on the ineffective assistance of counsel may succeed in extraordinary circumstances, such as “cases involving some overriding public interest or cases engaging the interests of vulnerable persons like children or persons under mental disability or cases in which one party to the litigation is somehow complicit in the failure of counsel opposite to attain a reasonable standard of representation.”

Undoubtedly, for most civil matters, it makes sense for a party who is aggrieved with the conduct of their counsel to pursue a civil claim against that lawyer rather than appeal on the basis of the ineffective assistance of counsel. However, it also important to maintain an exception for extraordinary cases, since not all civil proceedings are about money. Capacity proceedings, for example, can have significant ramifications for a person’s right to make decisions about their own life, such as their ability to get married, obtain a divorce, or reconcile with their spouse. If a person is found to be incapable, a substitute decision-maker may even be appointed for them under the Substitute Decisions Act, 1992, if they do not already have a power of attorney in place. The potential consequences that could follow from capacity proceedings are not to be under-estimated; as noted by the Supreme Court of Canada in Starson v. Swayze, 2003 SCC 32, “[u]nwarranted findings of incapacity severely infringe upon a person’s right to self-determination.”

While appeals based on the ineffective assistance of counsel can still be pursued in cases that engage the interests of vulnerable persons, such as capacity proceedings, the Court of Appeal’s decision in Jagpal may serve as a warning of sorts. In order to succeed with this ground of appeal, it appears that it may not be enough for the case to engage the interests of a vulnerable person – after all, the appeal was dismissed in Jagpal, even though the Court of Appeal noted that the appellant’s mother was vulnerable. In light of the court’s decision, it appears that this ground of appeal may be more successful, or at least will be taken more seriously, if the actual appellant is a vulnerable person.

Thank you for reading, and have a great day!

Ian.