During trial, while events swirl about, ever present are the clients, sometimes anxious, sometimes emotional, always deeply invested in the case. Others draw upon something quite different, an art both mysterious and imprecise: assessing and predicting human behaviour. Some answers require knowledge of fine law and minutiae in the case, with nuances both elusive and tricky. Problems and questions often pop up unexpectedly, sometimes several at a time, often in need of quick answer. "In trials, turbulence and tumult often reign. As Justice Stratas colourfully explained: This is important to ensure that ineffective assistance of counsel does not erode the important principle of finality in litigation. Accordingly, there is a strong presumption that a lawyer’s conduct fell within the “wide range” of “reasonable professional assistance”. As explained by Justice Stratas, “different counsel will handle situations in different ways and normally most of the ways will be the product of reasonable judgment calls”. In criminal appeals, the threshold is very difficult to establish. In criminal appeals, to succeed, the appellant must show two requirements: first, that its trial lawyers were incompetent and, second, that a miscarriage of justice resulted. The Criminal Law Origin of Ineffective Assistance of Counselįirst, Justice Stratas canvassed the origin of ineffective assistance as a ground of appeal in the Criminal Code and the Charter of Rights and Freedoms. Bereskin & Parr’s motion was dismissed as moot. MediaTube’s motion was dismissed on the merits. The motion was heard in writing by Justice Stratas who dismissed both motions. When Bereskin & Parr got wind, they sought to intervene in the motion to complete the record before the Court. MediaTube moved to amend its Notice of Appeal and for other related relief, including discovery of its trial lawyers and the withdrawal of its trial admission that Bell did not infringe MediaTube’s patent. Therefore, MediaTube said its trial lawyers had preferred the interests of Microsoft and soft-pedaled MediaTube’s case. Even though Microsoft was not a party to the litigation, it had allegedly offered to indemnify Bell in the patent litigation with MediaTube. The alleged conflict of interest was based on Bereskin & Parr, MediaTube’s trial counsel, having acted as Microsoft’s trade-mark agent. At that point, MediaTube raised a fresh issue not yet found in its Notice of Appeal or any of the briefings: that its trial lawyers were in a conflict of interest leading to ineffective assistance of counsel such that MediaTube deserved a new trial. Once all of the briefings were filed and the appeal was ready for hearing, MediaTube changed lawyers again. When MediaTube lost, it changed lawyers and appealed. The decision is an important and comprehensive compilation of the animating principles underlying this ground of appeal in civil cases, and is the first such case in the Federal Courts.Īt trial, MediaTube sued Bell for patent infringement. In MediaTube, the Court considered the issue again, this time in the context of an alleged conflict of interest on the part of MediaTube’s former trial lawyers. So much so that, prior to MediaTube, the Federal Court of Appeal considered the issue only once since the Court’s founding 47 years ago, and even then, only on very brief reasons. Very rarely is ineffective assistance raised in civil appeal. In criminal law, an accused convicted at trial will frequently appeal on the ground that he or she received ineffective assistance of counsel at trial. v Bell Canada, 2018 FCA 127 (“ MediaTube”), the Federal Court of Appeal explores the history of ineffective assistance of counsel as a ground of appeal, and reiterates the exceedingly high threshold for its application in civil cases.
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