BY PAUL B. ADAM
Last week, an interesting Ontario Court of Appeal case that I recently argued,
Floward Enterprises v Winberg Estate 2017 ONCA 448, was featured on
Lawyer's Daily. The full article is available
here.
In most Court cases, there are two parties and both get the opportunity to plead their case before the Court. In order to ensure this outcome, the party who has initiated the court proceeding or step has to give notice to the other party of what action is being taken.
In some exceptional cases, however, only one party is present. This may be because the other party can't be found, or hasn't replied, and in some cases, it is because a quirk of the rule permits the case to be heard even though other parties haven't been notified.
What does this mean for the parties that aren't in Court? Do their rights get protected? Does someone speak for them. The Answer according to
Floward, is that lawyers have a professional obligation to tell the Court what they know.
Here is an excerpt from Amanda Jerome for Lawyer's Daily:
"The appeal, from the order of Justice Nola Garton of the Superior Court of Justice on Sept. 21, 2015, centred around whether the order to return the diamond to the pawnbroker should be set aside as “a result of the application being decided in the absence of full and frank disclosure by the pawnbroker.”
Justice Gillese wrote: “The need for an applicant to make full and frank disclosure in a s. 490 application is acute. On such an application, the court is tasked with providing judicial oversight to achieve the ultimate goal that a thing seized by peace officers is returned to the lawful owner or person lawfully entitled to its possession."
Justice Gillese goes on to say:
As the Crown points out, absent the requirement of full and frank disclosure, an application under s. 490(7) would allow a party to assert its claim unchallenged, while concealing information about others who would assert their claims if given an opportunity.”
The Court of Appeal also says this in its ruling:
"
[44] In order for the court to properly fulfill its supervisory role [...] – to see that seized things are returned to their lawful owners or those lawfully entitled to their possession once they no longer are required for any criminal investigation or proceeding – judges [...] must be able to rely on applicants to have made full and frank disclosure. Only through such disclosure can the court make informed decisions about, among other things, whether other interested parties must be given notice of the proceeding.
In our view, this case is an important reminder to lawyers about the duties they owe to the Court. Thanks to Amanda Jerome for covering this interesting case!
- Paul Adam, Toronto
