For Lawyers: What Canadian Judges Say About Research

Lawyers Have a Duty to Conduct Proper Legal Research

Excerpted from Mr. Justice D.S. Ferguson in Gibb v. Jiwan [1996] O.J. No. 1370 (Ont. Gen. Div.):

The duty of counsel to research the law

¶ 34 Counsel cannot fulfil their duties to the client or the court unless they conduct reasonable research on points of law which are known in advance to be contentious. The court must rely on counsel to conduct reasonably complete research on points of law they raise. That is part of counsel’s professional duty. It is desirable that counsel look up difficult or important points on Quicklaw but I can appreciate that this may not be economical in many cases. However, in my view it is not acceptable for any counsel or articling student to come to court intending to argue a contentious point of law without first researching the point at least to the extent of looking up the issue in basic reference books.

¶ 35 In a case like this where counsel know there is a contest as to which cases may be authoritative, I think they also have a duty to cite up cases they rely on to determine whether they are still good law. (I recall that citing up a case was one of the first things I learned in law school and its importance in litigation was emphasized repeatedly during articles.)

¶ 36 The judicial system cannot function effectively unless counsel fulfil this duty because judges cannot possibly know the law on all issues which come before them. Counsel must bear in mind that most justices in the General Division are generalists and hear cases of all kinds.

The consequences of counsel not doing research

¶ 37 Instead of being done by counsel, the research and analysis in this case were done by me and the court’s law clerk. This is particularly annoying in view of the court’s scarce and dwindling resources. The court’s only law clerk in this Region is responsible for assisting over twenty justices who preside in seven widespread centres.

¶ 38 Another result of counsel not fulfilling their duty is that this matter which might have been reserved for two or three weeks has been reserved for an additional three months. This delay may well have caused frustration and hardship to the parties.

¶ 39 In addition, the issue here is one of some importance for conveyancers and if I had accepted the position so vigorously and confidently urged on me by ]Mr. Di Monte I would have inadvertently contradicted a rule of law that has been established in Ontario for over half a century. Counsel must be alert to the fact that a court’s ruling in a case will determine not only the dispute between the parties (which, as here, may involve only a modest sum) but also may create a precedent which could have great impact on all other members of the public.

What is the appropriate penalty for not doing research?

¶ 40 If the lack of preparation and research in this case were unique or unusual I would let it pass; however, unfortunately it is not. In my experience this lack of preparation and research is commonplace on civil motions and at civil trials although this is a particularly egregious example. Indeed, based on the cases I have heard, it is my firm belief that a significant number of civil trials would never reach the courtroom door if counsel had looked up the law on the principal issues in the case. In my view this standard of practice is unacceptable. It appears to me that the practice will not change until counsel appreciate that the court will impose sanctions for such conduct. …”

[Emphasis added.]

Excerpted from Mr. Justice Nathanson in Re Hanna, [1988] N.S.J. No. 435 (N.S. S.C. – T.D.):

“…The application is denied.

I want to add a comment by way of a postscript. During the course of argument, counsel for the applicant, in response to a question, indicated that he had not been aware of [three decisions] cited on behalf of the Department of Justice. Since the three decisions are reported, that may indicate a lack of thorough research. All counsel are expected to prepare properly. The trial courts rely upon the submissions of counsel; they do not normally have the time or resources to conduct their own legal research. If counsel do not do their job properly, the decisions of the courts and the quality of justice that Canadians have a right to expect may be affected adversely.”

Excerpted from Mr. Justice Newbould in 8527504 Canada Inc. v Liquibrands Inc., 2015 ONSC 6853 (CanLII):

¶ 34 … It is unrealistic to expect lawyers to know all law on a subject and legal research is the stuff of all litigation. Courts rely on counsel providing the law on matter in issue and do not expect counsel to just cite legal principles off the top of their head. Clients would be ill served if their lawyers did no legal research in every case and if the work has to be done there is no reason why it should not be charged. The notion that hourly rates covers all legal research would reward those who do little legal research and would inevitably lead to higher hourly rates for those cases in which more legal research was required.