Judge flags Edmonton lawyer’s conduct to law society

“It’s quite clear that there are some serious issues here about the representation, and it’s a question for me of a lawyer being responsible not only to his or her client but also to the court and the system of justice, and the judge is saying here enough,” he says.

In the underlying matter, Kennedy’s client, Maurice Stoney, brought an application requesting he be added as a beneficiary of a trust set up for members of the Sawridge band along with 10 other brothers and sisters. Stoney is the son of former members of the Sawridge First Nation, who gave up their status for an enfranchisement payment.

Thomas found that Stoney was relitigating an issue that had already been decided by the courts, and that Kennedy had facilitated misconduct by advancing the matter. Thomas has barred Stoney from bringing further actions or applications without seeking leave of the court first.

“In my opinion Ms. Kennedy’s conduct raises the question of whether she is a suitable representative for Maurice Stoney, and whether the proper administration of justice requires that Ms. Kennedy should be removed from this litigation,” Thomas wrote in his decision in 1985 Sawridge Trust v. Alberta (Public Trustee), 2017.

In late August, Thomas then took the rare step of ordering Kennedy to pay costs personally for advancing the matter. In that decision, the judge found that any lawyer who acts on behalf of a client who engages in frivolous, vexatious or abusive litigation is acting contrary to their obligations to the courts and other litigants, as well as their own client.

“By facilitating that misconduct, the lawyer ‘digs a grave for two,’” he wrote.

Lawyers say having costs awarded personally against a practitioner is a rare occurrence.

Gavin MacKenzie, of MacKenzie Barristers, says that, historically, courts have been extremely cautious in awarding costs personally against lawyers because of their duties to bring forward even unpopular cases.

He says the decision to award costs against Kennedy reflects an approach that treats this tradition of caution as no longer justified because of the culture shift mandated by the Supreme Court of Canada in Hryniak v. Mauldin.

“The court nevertheless recognizes that costs must not be awarded against lawyers personally merely because they assert claims or defences that are weak or unmeritorious,” says MacKenzie, who was not involved in the Sawridge matter.

“A ‘serious abuse of the judicial system’ is required. Persistently relitigating a claim that has been finally determined adversely in previous litigation is a strong indicator of abuse of the court’s process.”

At a hearing to determine if Kennedy should pay costs, David Wilson, a partner and colleague at DLA Piper, represented Kennedy and admitted that she had gone too far and that Stoney had “exhausted his remedies in the legal realm.”

He said that the application was “ill-advised” but was not done “with bad motives,” and while it was not an attempt to abuse the process, “it absolutely had that effect . . . ”

He added that the seriousness of the matter has been “driven home as much as an order of contempt or a referral to the Law Society.”

Despite this, Kennedy continued to re-argue the same points in her most recent submission, according to the decision.

“Mr. Wilson told me in open court that Ms. Kennedy had learned her lesson,” Thomas wrote. “When I read the written brief Kennedy prepared and submitted on behalf of Maurice Stoney, I questioned whether that was true.”

Kennedy also tried to rely on a procedure from Federal Court rules to explain why the application was justified. Thomas, however, pointed out that proceedings in the Court of Queen’s Bench are subject to the Alberta Rules of Conduct.

“I question the competence of a lawyer who does not understand what court rules apply in a specific jurisdiction,” Thomas said.

Paton says referrals to the law society by the court are comparatively rare. He says issues of conduct in courtrooms are often addressed on the spot so that the client interests can be dealt with and the system of justice can move along. There is reluctance on behalf of judges to wait for referrals to the law society, except in cases of particularly egregious conduct, he says.

“To have a situation, where you have not only a costs award being made… but then a situation, where the lawyer comes back and essentially engages in the same conduct that led to the cost award is just astonishing,” he says. “Particularly where a senior partner in that lawyer’s law firm is making submissions to the effect that that lawyer learned her lesson from the previous decision.”

Kennedy was not available for comment and Wilson did not respond to requests for comment.

Doris Bonora, one of the lawyers representing the trustees of the trust set up for the members of the Sawridge Band, declined to comment. Edward Molstad, who acted for the Sawridge Band, also declined to comment.

Colleen Brown, a spokeswoman for the Law Society of Alberta, declined to confirm whether the matter was being investigated, and said that the regulator can only make details public about a particular complaint if and when a hearing begins.

MacKenzie says that the lesson lawyers can take from this case is that “zealous advocacy” should not be their only or primary guide.

“We have to avoid being zealots,” says MacKenzie.

“Our Rules of Professional Conduct require lawyers to represent their clients ‘resolutely’ and honourably within the limits of the law while observing their duties as officers of the court. Allowing this balance to become out of sync can lead to unfortunate consequences, as the Stoney case illustrates.”