Introduction

In MediaTube Corp. 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.

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.[1] Very rarely is ineffective assistance raised in civil appeal. 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,[2] and even then, only on very brief reasons.

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. 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.

At trial, MediaTube sued Bell for patent infringement. When MediaTube lost, it changed lawyers and appealed. Once all of the briefings were filed and the appeal was ready for hearing, MediaTube changed lawyers again. 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.

The alleged conflict of interest was based on Bereskin & Parr, MediaTube’s trial counsel, having acted as Microsoft’s trade-mark agent. Even though Microsoft was not a party to the litigation, it had allegedly offered to indemnify Bell in the patent litigation with MediaTube. Therefore, MediaTube said its trial lawyers had preferred the interests of Microsoft and soft-pedaled MediaTube’s case.

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. When Bereskin & Parr got wind, they sought to intervene in the motion to complete the record before the Court.

The motion was heard in writing by Justice Stratas who dismissed both motions. MediaTube’s motion was dismissed on the merits. Bereskin & Parr’s motion was dismissed as moot.

The Criminal Law Origin of Ineffective Assistance of Counsel

First, Justice Stratas canvassed the origin of ineffective assistance as a ground of appeal in the Criminal Code and the Charter of Rights and Freedoms.[3] 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.[4]

In criminal appeals, the threshold is very difficult to establish. 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”.[5] Accordingly, there is a strong presumption that a lawyer’s conduct fell within the “wide range” of “reasonable professional assistance”.[6] This is important to ensure that ineffective assistance of counsel does not erode the important principle of finality in litigation.[7] As Justice Stratas colourfully explained:

"In trials, turbulence and tumult often reign. Problems and questions often pop up unexpectedly, sometimes several at a time, often in need of quick answer. Some answers require knowledge of fine law and minutiae in the case, with nuances both elusive and tricky. Others draw upon something quite different, an art both mysterious and imprecise: assessing and predicting human behaviour. During trial, while events swirl about, ever present are the clients, sometimes anxious, sometimes emotional, always deeply invested in the case. Days go by to the exhaustion of all. Then the end is reached—except for the judge who is tasked to write the decision. Months can pass. During that time, memories fade while others are distorted by hope and expectation. At last, the decision arrives and with it, clarity and definitiveness. Some have won; some have lost. And some of the losers, looking for any way they can to reverse the decision, and armed with 20/20 hindsight, fuelled by disappointment, conclude that their lawyers were ineffective."[8]

Accordingly, in the criminal context, the bar to set aside a judgment based on ineffective assistance is very high.

Ineffective Assistance of Counsel as a Ground of Appeal in Civil Cases

Justice Stratas held that the two requirements – incompetence and a miscarriage of justice – applied equally to civil appeals. But in civil appeals, the threshold is even higher – “just about the highest threshold imaginable under our law” – for two reasons.[9]

First, in civil litigation, the interests of the parties are often purely financial, and ineffective assistance is purely a matter between the appellant and its trial lawyer. Where a party receives ineffective assistance, that party can protect its financial interests by suing its former lawyers for negligence, breach of fiduciary duty, or both – something the successful party at trial has no interest in. In contrast, criminal liability implicates other interests like an accused’s freedom and criminal record, things that cannot be recovered by suing one’s former lawyer.

Second, in criminal law appeals, ineffective assistance of counsel implicates the prosecuting Crown’s duties, including the duty to guard against miscarriages of justice. In contrast, in a civil case, the successful lawyer’s duty is owed principally its client, and the lawyer is entitled to rely on the lawyer opposite to protect its own client’s interests.[10]

As a result of these key differences, ineffective assistance could only succeed in the rarest of civil appeals, such as where the appellant is a vulnerable person unlikely to pursue financial recourse against his or her former lawyers, or where the party opposite has committed fraud by bribing the appellant’s trial lawyer.[11]

Critically, a conflict of interest is capable of supporting ineffective assistance as a ground of appeal.[12] However, the conflict must be an actual conflict and not merely an apparent conflict.[13] To succeed, an appellant must show an actual conflict of interest that adversely affected its lawyer’s performance. The adverse effect must be proven; a “substantial risk” of adverse effects is not enough.[14] That said, the appellant need not demonstrate that, but for the ineffective assistance, the verdict would have been different to establish a miscarriage of justice. The actual conflict of interest and adverse effects satisfy the miscarriage of justice.[15]

As an evidentiary matter, Justice Stratas held that the Palmer and Sengmueller tests to admit fresh evidence on appeal do not apply to this ground of appeal. Those cases require three things:

  • that the tendered evidence is credible;
  • that it could not have been obtained, by the exercise of reasonable diligence, prior to trial; and
  • that the evidence, if admitted, will likely be conclusive of an issue in the appeal.

Those authorities apply when challenging a finding on the merits made at trial. By contrast, an allegation of ineffective assistance is a challenge to the validity of the trial process itself, something arising after trial. Accordingly, when ineffective assistance is alleged, the court will receive fresh evidence to establish the ground.[16]

The Merits of the Motion

Ultimately, Justice Stratas dismissed MediaTube’s motion as bereft of any possibility of success. MediaTube’s evidence fell short of establishing an actual conflict of interest which adversely affected its trial lawyers’ performance:[17]

  • There was no evidence that the trial lawyers ever knew Microsoft was a trade-mark client of Bereskin & Parr, and therefore no evidence of any incentive to soft-pedal MediaTube’s case;[18]
  • MediaTube’s Chief Executive Officer testified at trial that MediaTube might not have pursued the action if MediaTube knew the facts fully from the start;[19]
  • There was no evidence that Microsoft’s trade-mark filings involved anything more than administrative work;[20] and
  • Every alleged adverse effect raised by MediaTube smacked of hindsight second-guessing of its trial lawyers’ judgment calls, and was fully answered by the fact that its trial lawyers faced budget limitations.[21]

Based on this, Justice Stratas held that there was not even a substantial risk of impaired representation on the part of MediaTube’s trial lawyers, let alone an actual conflict that adversely affected their performance.[22]

Having dismissed MediaTube’s motion, the court also dismissed Bereskin & Parr’s motion to intervene as moot.