The importance of a notice of cross-appeal was showcased in the recent decision of the Ontario Court of Appeal in Hoang v. Vicentini, where counsel for one of the defendants was removed due to a reasonable apprehension of conflict of interest. The finding of Justice Laskin, sitting in chambers, was based on counsel being appointed and paid by the defendant’s insurance company and based on the position taken by counsel in its notice of cross-appeal. As a result, counsel was replaced and the insurer was ordered to cover the reasonable costs of the new counsel. While such an order is not novel, this ruling highlights the significance of the content of notices of appeal and cross-appeal.

In response to a notice of appeal, counsel for the defendant filed a notice of cross-appeal asking that all particulars of negligence against their client be set aside, including the one particular that was covered under the defendant’s insurance policy. Counsel’s position in the notice of cross-appeal was central to the charge that a potential conflict existed between them and their client:

[12]       The moving parties contend that by challenging the jury’s finding of “unsuitable choice of unloading area” the insurer has put itself in a conflict of interest with its insured Can Hoang or, at least, has created a reasonable apprehension of a conflict. If that challenge is successful and the other particulars of negligence found by the jury are not set aside, Can Hoang will lose any chance of being indemnified by his insurer for the judgment against him.

[13]       Counsel appointed by the insurer to act for Can Hoang contends that the notice of cross-appeal filed on Can Hoang’s behalf does not create a reasonable apprehension of a conflict of interest. Instead, counsel says that he is acting only in the best interest of the insured, Can Hoang. At trial, counsel for Hoang’s mandate was to defend the action, to attempt to avoid liability, and to minimize damages. Those objectives have governed the conduct of the defence and will govern the conduct of the appeal.

Noting the potential for conflict was especially high, Justice Laskin found that the test for reasonable apprehension of conflict of interest was met:

[18]       For Can Hoang personally, an appellate decision overturning the finding of “unsuitable choice of unloading area”, yet leaving in place the findings of negligent parental supervision, would be disastrous. Can Hoang would be left without any prospect of indemnification and his son Christopher Hoang would be left without any hope of recovery. I thus conclude that the test of reasonable apprehension of conflict of interest has been made out. The moving parties are entitled to the three orders I itemized at the beginning of these reasons.