![]() ![]() While the Federal Court Rules (the “Rules”) discuss categories of objections (Rule 242(1)), under advisement is not a recognized objection and there is no provision in the Rules permitting its use as a response to a question. The FC cautioned counsel to refrain from using the phrase as a means of objecting. The phrase under advisement has been increasingly misused on examinations for discovery as a tactic to prevent witnesses from answering questions. MediaTube denied Bell’s allegations contending that the questions in dispute were reasonably taken under advisement since they required investigation and inquiry from other sources to ensure accurate answers. Bell alleged that MediaTube was acting improperly, misusing the examination for discovery process and that Bell should consequently be entitled to direct answers from the witness on discovery, without interference by counsel. In seeking this order, Bell alleged that MediaTube and its counsel were attempting to script answers by taking an abundance of questions under advisement. The examination for discovery of MediaTube had over 9,000 questions and the questions in dispute fell into the following categories: infringement, validity, and disclosure. Backgroundīell sought an order requiring MediaTube to attend in person to answer questions which up until that point were refused or taken under advisement during the examinations for discovery. Recently, more steps have been taken that serve to limit the use of refusal motions and disallow counsel from using the phrase under advisement in examinations. Although the FC criticized refusal motions for being unnecessarily time consuming and expensive, the FC granted Bell’s refusal motion. The Federal Court (“FC”) agreed with Bell and recognized the increasing and improper use of the phrase under advisement. MediaTube used the phrase under advisement to answer a significant number of questions during examinations for discovery, which Bell alleged was a tactic used to script and avoid answers. This refusal motion arose in the context of an action by MediaTube Corp and Northvu Inc (“MediaTube”), which claims that the defendants, Bell Canada and Bell Aliant Regional Communications, Limited Partnership (“Bell”) infringed Canadian Patent No. Mediatube vs bell trial#In this case, Justice Stratas held that as long as Mediatube could prove that there was an actual conflict of interest and that the conflict adversely affected its counsel’s performance, the outcome of the trial was irrelevant – the conflict itself provided the “miscarriage of justice” required to overturn the decision.Mediatube Corp v Bell Canada, 2015 FC 391 Canada, 2004 FCA 104, in which the court rejected ineffective assistance of counsel as a ground of appeal in part because they were not convinced the result would have been any different. ![]() In doing so, he departed from the Federal Court of Appeal’s 2004 decision in Hallat v. He also adapted the test to the criminal context – the appellant “must show more than a possibility of conflict of interest while actual prejudice need not be shown, the appellant must demonstrate the conflict of interest and that the conflict adversely affected the lawyer’s performance on behalf of the appellant.” Also, on the basis of criminal cases, Justice Stratas rejected Bell’s argument, being that any alleged conflict was irrelevant because Mediatube would have lost anyways. ![]() Neil, 2002 SCC 70, Justice Stratas held that when counsel’s conflict of interest is only discovered after the trial is over, it can be relied on to support ineffective assistance of counsel as a ground of appeal. In an analysis that borrows heavily from criminal cases, Justice Stratas arguably expanded the circumstances in which ineffective assistance of counsel can be a valid ground of appeal in the civil context. Although he rejected the argument in this case, Justice Stratas sought to develop the law in this area. ![]()
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