EX PARTE ACTIONS REQUIRE EXTRA DILIGENCE
‘This is a court of law, young man, not a court of justice” – Oliver Wendell Holmes, Jr.
The scales of justice symbolize the court’s consideration of each side of every case. Fairness and public faith in the judicial system require that balance. If courts are perceived as hearing only one side of a dispute, a reasonable apprehension of bias may arise. At best, that may result in a decision being set aside or appealed; at worst, it undermines public confidence.
The rule for all communications with the court is that notice must be provided to the opposing party unless a valid exception applies. The Alberta Court of Appeal recently stated in Secure Group Inc v Tiger Calcium Services Inc, 2017 ABCA 316 that “Applications without notice (formerly ex parte applications) are extraordinary since it is a fundamental principle that parties have a right to be heard before their rights are negatively affected” (at para 41). The Supreme Court of Canada noted that ‘The circumstances in which a court will accept submissions ex parte are exceptional and limited to those situations in which the delay in notice would result in harm or where there is a fear that the other party will act improperly or irrevocably if notice were given” (Ruby v Canada, 2002 SCC 75 at para 25).
Extraordinary. Exceptional. Limited. These are the words which the courts use to describe applications without notice.
And yet. Calls to practice advisors about applications made without notice are rising. Many of those calls are prompted by opposing lawyers writing to judges. Those communications may constitute ex parte appearances as seeking a remedy without notice in correspondence may have the same effect as an ex parte hearing: an application without notice is not limited to a courtroom hearing.
The problem is not new. Former Practice Advisor, Barry Vogel, Q.C., advised the profession in 1997 that it is “improper to contact a judge … even to arrange an appointment [or] write a letter… no matter what the subject”.
The Code of Conduct unequivocally states: A lawyer must not communicate with a tribunal respecting a matter unless the other parties to the matter, or their counsel, are present or have had a reasonable prior notice, or unless the circumstances are exceptional and are disclosed fully and completely to the court. (Rule 5.1-1, Commentary para 6).
Note that the Code of Conduct refers to “tribunal” not “court”. “Tribunal” includes courts, administrative bodies, mediators and arbitrators. The same principles apply to these decision-makers (see Hunt v The Owners, Strata Plan LMS 2556, 2018 BCCA 159)
If your situation does not justify an ex parte application or communication, but you need to communicate with a court or other decision-maker, it is unethical simply to send a letter. You must give the opposing party or their lawyer a ‘reasonable opportunity to review, comment on and respond to the communication. Send a draft to the other side (preferably after having a colleague review it if it is a contentious matter), indicate a reasonable deadline by which you require their comments, and indicate that you will be sending the correspondence “as is” unless you receive their response by that reasonable deadline. What is reasonable will depend on the circumstances. Advise the court that you have provided your correspondence in draft to the other side. If the opposing side has reasonable comments, you may choose to include them, or if the comments are lengthy or objectionable, you may indicate to that party that they should send their own correspondence (to be reviewed by you in advance, of course). Even better, particularly if the matter is contentious, consider whether correspondence is the appropriate way to proceed. Consider whether you should proceed in court on notice where a transcript of the proceeding is prepared, both parties can make submissions, and the court can be assured its own questions are answered.
Remembering that communications may be ex parte appearances and allowing the opposing party to provide input in the communication ensures fairness. It ensures that the court has heard from both sides and can make a decision which takes all relevant interests into account. Lawyers who follow their ethical obligations when communicating with tribunals ensure that courts of law are also courts of justice.
See original article in Law Review: https://issuu.com/cbaalberta/docs/113609_law_matters_fall_2018_final_/12