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What is Resolute Advocacy?


Not every personal injury claim arising from a motor vehicle accident goes to trial. More often than not, the parties (and their insurance companies) are able to reach an amicable settlement. Our Ontario car accident lawyers may be able to help you throughout negotiations with insurance companies in an attempt to secure you the maximum amount of damages to which you might be entitled.

Paulus v. Fleury

A personal injury lawyer is expected to “advocate resolutely” for his or her client. After all, Ontario’s judicial system follows an adversarial model. Sometimes this leads to questions about when a lawyer’s conduct crosses the line from aggressive advocacy into unethical behaviour.The Ontario Court of Appeal recently addressed this issue in Paulus v. Fleury, which involved a purported settlement of a personal injury claim arising from an auto accident. Here are the background facts: The plaintiff sustained injuries in a 2008 rear-end accident. The plaintiff alleged that the defendant–the rear driver–caused the accident. Initially, the defendant maintained that the plaintiff was responsible, as he allegedly “pulled out from the left-hand turning lane” and into the defendant’s path.The plaintiff promptly hired a personal injury lawyer to assist him with investigating the accident and taking appropriate legal action against the defendant. The plaintiff initially provided his lawyer with the name of two people who witnessed the accident. The lawyer retained a private investigator to interview the witnesses, a couple from Macedonia who did not speak fluent English. They effectively told the investigator, who did not have an interpreter present, that the “the plaintiff’s car was stopped beside theirs for the yellow light, when a van came from behind and struck the car once, twice, three times.” In other words, the witnesses appeared to confirm the defendant was at-fault for the accident. Several years later, at a pretrial hearing in the plaintiff’s personal injury lawsuit, the lawyer represented to the court that he had “independent” witnesses who would support his client’s case. Following this hearing, the defence agreed to settle the plaintiff’s claims for a total of $850,000. After agreeing to the settlement, defence counsel received a call from their own investigators, who said they learned the “probable son” of the two independent witnesses happened to live across the street from the plaintiff. It also came to light that the plaintiff, a financial planner, prepared tax returns for the witnesses in the past. Based on this new information, the defence concluded the witnesses were not “independent” at all, thus changing their assessment of the strength of the plaintiff’s case. The next day, defence counsel wrote the plaintiff’s lawyer to advise “that there was no settlement.” Later, in a meeting with the trial judge, the plaintiff’s lawyer explained there was an additional detail that had not been previously disclosed–namely, that the witness initially contacted the lawyer “to tell him that he had observed the accident.” Despite this disclosure, the plaintiff demanded the judge enforce the $850,000 settlement previously agreed to by the defence. The judge declined to do so, holding the plaintiff’s lawyer made “false representations” to the court regarding the plaintiff’s relationship to the witnesses and that this amounted to “civil fraud” on the court. The plaintiff then appealed the judge’s decision.

Court of Appeal: Plaintiff’s Lawyer Had “Reasonable Basis” to Describe Witnesses as “Independent”

The Court of Appeal took a starkly different view of what happened in this case, and in particular with the proper characterization of the lawyer for the plaintiff’s conduct. At the outset, the appeals court noted that after the trial judge’s ruling there was an intervening decision by the Supreme Court of Canada, Groia v. Law Society of Upper Canada, which clarified the scope of “a lawyer’s duty of resolute advocacy on behalf of a client.” The Groia court cautioned that “inquiring into the legal merit of a lawyer’s position to conclude that his or her allegations lack a reasonable basis would discourage lawyers from raising well-founded allegations, impairing the lawyer’s duty of resolute advocacy.”In the present case, the Court of Appeal similarly noted that “a finding of civil fraud is a matter that could have devastating consequences for a lawyer’s reputation.” So the question here, applying Groia, was whether or not counsel for the plaintiff’s initial representation that the two witnesses were “independent” had a “reasonable basis,” even if subsequent evidence proved otherwise.The Court of Appeal concluded that such a reasonable basis did exist. The trial court’s ruling turned on the use of the word “independent” to describe the witnesses. This was not an unreasonable description, the appeals court said, given that the plaintiff was not related to the witnesses. While it was later revealed the parties were “acquainted” with one another, the plaintiff’s lawyer did not know prior to making his statement in court the precise nature of that acquaintance.

Defining the Concept of Resolute Advocacy

More to the point, the Court of Appeal said the lawyer’s “description of the witnesses was a legitimate exercise of advocacy.” Put another way, the lawyer was stating his opinion that the witnesses should be considered independent. The “point at which the degree of acquaintance renders a witness ‘not independent’ or biased may be open to debate and may differ in different settings.” So, even if the trial judge disagreed with the lawyer’s opinion as to the relative independence of the witnesses, that does not make the lawyer’s initial description an act of “civil fraud.”Ultimately, the Court of Appeal held the $850,000 settlement was enforceable against the defendant. Even if there was reason to question the independence of the witnesses, the Court noted that the defence had eight years between the date of the accident and the pretrial hearing to conduct its own investigation. The absence of “due diligence” on the part of the defence lawyers therefore weighed heavily in favour of bringing “finality” to the legal proceedings in this matter.

Contact Preszler Injury Lawyers Today if You Need Resolute Advocacy Following a Motor Vehicle Accident

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At Preszler Injury Lawyers, we believe that our Ontario car accident lawyers should provide the clients we represent with resolute advocacy. To discuss the specific details of your case and learn about how we may be able to represent your best interests through legal action, call 1-800-JUSTICE and recieve a free initial consultation.

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