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Appellate Litigation


A lawyer citing case law before an adjudicative body does so to provide authority to the adjudicator in support of their client’s position. An adjudicative body includes administrative tribunals as well as the courts.

Case law can be binding or simply persuasive. Both types require relevance, meaning they must speak to the same issue as is currently before the adjudicative body. Binding case law is a decision that was pronounced by an adjudicative body of greater standing. Persuasive case law is a decision that was pronounced by an adjudicative body from another common law jurisdiction or a court at the same level from the same jurisdiction. Both types of authorities are used to place before the adjudicator as many opinions as possible to allow for the best decision possible. However, when authority is binding it must be followed. Conversely, when it is persuasive it can inform and influence the court, but it does not need to be accepted or followed.

Rules of Professional Conduct

In Ontario, the Law Society of Ontario (LSO) is empowered to regulate lawyers. One of the ways they do so is to establish Rules of Professional Conduct for lawyers. The relevant rules for our purposes are as follows:

Rule 2.1-1 A lawyer has a duty to carry on the practice of law and discharge all responsibilities to clients, tribunals, the public and other members of the profession honourably and with integrity.

Rule 5.1-1 When acting as an advocate, a lawyer shall represent the client resolutely and honourably within the limits of the law while treating the tribunal with candour, fairness, courtesy, and respect.

Rule 5.1-2 When acting as an advocate, a lawyer shall not:

(e) knowingly attempt to deceive a tribunal or influence the course of justice by offering false evidence, misstating facts or law, presenting or relying upon a false or deceptive affidavit, suppressing what ought to be disclosed, or otherwise assisting in any fraud, crime, or illegal conduct,

(i) deliberately refrain from informing the tribunal of any binding authority that the lawyer considers to be directly on point and that has not been mentioned by an opponent…..

The Dilemma

It is unlikely that a client will ever be enthused about their lawyer raising case law that undermines their position. However, there is no doubt that binding authority must be provided whether adverse or not. If faced with an adverse binding authority, it is the duty of the lawyer to address it, however, they may attempt to minimize its impact. This can be accomplished by distinguishing the authority decision from the case at hand by pointing out differences in the factual matrix, the evidence, etc. What though is the lawyer’s obligation to put forward adverse but non-binding authority?

A Persuasive Case on Point

This was addressed in a decision of the Court of Appeal for Saskatchewan (SKCA). The wording of the Saskatchewan professional rules of conduct is substantially the same as in Ontario. The lawyer was appearing before the provincial court defending his client on a charge of driving while disqualified. The Crown rested after proving that the defendant was subject to a prohibition against driving. The defendant’s lawyer then brought a motion for a non-suit (based on the Crown not proving all the elements of the offence) on the basis that the Crown had failed to establish that the defendant was not enrolled in an alcohol ignition interlock program.

In support of his position, the lawyer presented the court with cases from the Quebec Court of Appeal and the provincial court of Alberta. However, he failed to present another case from the provincial court of Alberta that was not supportive of his argument. The judge learned of the case from other sources and determined that the omission had been intentional. The lawyer was subsequently found by his law society to have engaged in conduct unbecoming a lawyer. This was based on his duty of candour. He appealed the finding.

The Issues

(a) Was it unreasonable for the hearing committee to conclude that the failure to bring relevant and adverse but non‑binding case law to the attention of a court or tribunal can constitute conduct unbecoming a lawyer?

(b) Was it unreasonable for the hearing committee to conclude that the lawyer’s failure to bring the decision to the trial judge’s attention was a breach of his duty of candour?

The Decision

The court repeated its standard of review which was reasonableness. Where the reasonableness standard applies, it requires deference. Reviewing courts cannot substitute their own appreciation of the appropriate solution but must rather determine if the outcome falls within “a range of possible, acceptable outcomes which are defensible in respect of the facts and law”. There might be more than one reasonable outcome. However, if the process and the outcome fit comfortably with the principles of justification, transparency and intelligibility, it is not open to a reviewing court to substitute its own view of a preferable outcome.

The lawyer lost his appeal. The SKCA deferred to the law society as the determiner of what constitutes unbecoming conduct. Given that deference, the decision below was found to be reasonable. The case stands for authority (persuasive in Ontario) for the principle that lawyers must disclose all relevant authority to the court being both binding and persuasive decisions.

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