The Freedom-Site: Canadian Human Rights Commission Lawyers give Undertakings to Tribunal on Medical Certificates to justify an adjournment.

Canadian Human Rights Commission Lawyers give Undertakings to Tribunal on Medical Certificates to justify an adjournment.

Three Months have passed and both CHRC lawyers - Giacomo Vigna and Philippe Dufresne have yet to fulfill their undertakings and comply with Tribunals Request!

What is a Lawyers Undertaking?

An undertaking is a promise made by a solicitor upon which the recipient is entitled to rely and depending on the circumstances, which binds the solicitor or solicitor’s client or both. Undertakings are obligations that lawyers pledge themselves or their clients to honour.

Lawyers must take the fulfillment of undertakings very seriously. Canadian courts have repeatedly demonstrated that they are not sympathetic to lawyers who “choose to practice upon loose undertakings” and who cannot fulfill their obligations ( Ferguson v. Swedish Canadian (1912), 41 N.B.R. 217 at 220 (N.B./C.A.)..

Text from: Undertakings in and out of Court written by Igor Ellyn, Q.C. and Nadine J.L. Barmania

On 11 May 2007, Giacomo Vigna and Philippe Dufresne appeared on behalf of the Canadian Human Rights Commission before the Canadian Human Rights Tribunal in Ottawa , Ontario for a hearing into the matter of Warman v. Lemire. (Tribunal file number: T1073/5405).

After two straight days of hearings (May 9^th and 10^th) and at the start of the third day which was to be the start of testimony by Harvey Goldberg, who is a senior policy advisor for the Canadian Human Rights Commission. (Mr. Goldberg is the most senior CHRC witness subpoenaed by Marc Lemire). As the morning session of 11 May 2007 started, Ian Fine on behalf of the Commission appeared before the Tribunal and announced that Mr. Vigna was unable to continue.

MR. VIGNA: Sorry. Mr. Chair, I don't have the flu but I don't feel in a serene state of mind to proceed with the file today. I don't feel very well. I feel dizzy, I feel anxiety, and I am not in a serene state of mind to proceed with this file today.

[MR. VIGNA] I am not dying, Mr. Chair, I don't have the flu, but I am not mentally capable of proceeding under these circumstances.

MR. VIGNA: The witness is here. It's not the question of the witness. The witness is here. I thought until this morning that I would proceed, but I really don't feel primarily mentally able to proceed, and physically too.

Douglas Christie, counsel for the Canadian Free Speech League, an intervener in the proceeding, expressed concerns over Mr. Vigna’s justification for an adjournment, to which the Tribunal Adjudicator agreed:

[MR. CHRISTIE]I am absolutely amazed that this can be seriously advanced at this point without anything in the nature of information and particulars. It is insulting to counsel; it is insulting to the Tribunal. I don't accept it for a minute as justification for an adjournment.

MR. VIGNA: Mr. Chair, I said that I felt ill because of my mental state and physically I don't feel well also, but I don't have a primarily physical condition.

Douglas Christie , counsel for the Canadian Free Speech League expressed reservations and asked for a medical certificate to be produced by Mr. Vigna and Dufresne.

[MR. CHRISTIE] Many times in history I have been involved in court cases where counsel have been seriously ill, and in order to demonstrate the justification for adjourning proceedings, they produce what is called a medical certificate. This is normally necessary because very few of us are competent to diagnose our own conditions.

I have heard two explanations which are as frivolous as any I have ever heard in justifying an adjournment of a whole proceeding involving one, two, three, four, five, six, seven and more people, even people on behalf of the Crown, plus yourself, sir, plus the whole of the staff of this court.

To say I am not feeling well, but sit here and talk about it, is inconsistent. There is no medical certificate, and I heard very faintly Mr. Vigna say I'm not physically sick, I don't have a serene state of mind. Very few of us in the difficulties we face always have a serene state of mind. I don't know what that means.

This is not a case of a nervous breakdown or a mental state justifying a psychiatric examination. I am certain of that. To say I just don't feel like doing it today is insulting.

In response to Mr. Christie’s request for a medical certificate, Mr. Vigna stated the following:

[MR. VIGNA] Mr. Christie is questioning my integrity by questioning whether I'm sick or not. I have never been sick since I have been before the Tribunal in 15 years of my career. If I have to produce a medical certificate, I will produce it.

The tribunal then requested Mr. Vigna to file a copy of his medical certificate.

THE CHAIRPERSON: I think it might be necessary that you produce it with the Tribunal.

Ms Kulaszka, it's an officer of the Court making representations to me. I realize your concern, sir. I would like some medical certificates to back it up but I won't question their integrity at this point.

Mr. Vigna gave a personal undertaking to the Tribunal to provide the medical certificate.

THE CHAIRPERSON: Please, both of you stop. I am expecting medical certificates. I have that undertaking. Mr. Vigna nodded before when I asked him to provide one. He will. I think that it will complete the record. (Emphasis added)

In further submissions by Douglas Christie, counsel for the Canadian Free Speech League, Mr. Vigna confirmed his personal undertaking to the tribunal, that he will provide medical certificates:

The other thing is this. It's not entirely clear what the cause of Mr. Vigna's mental state is, but when counsel raises issues about their mental state, that's a very serious matter, and I am sure my friend would not do so lightly, but I would like the opportunity, if Mr. Vigna is providing a medical certificate, to see it and to consider what submissions, if any, would be appropriate in response to it. (…)

THE CHAIRPERSON: I hear you, Mr. Christie, but all I am asking is that Mr. Vigna or the Commission provide medical certificates to the Tribunal. That is all I am asking. Sorry, Mr. Christie, I won't be addressing the orders that you're addressing.

On 11 May 2007 , Mr. Vigna clearly understood the request of the Tribunal and gave a clear personal undertaking to the Tribunal to provide medical certificates to justify the delay and adjournment of the hearing.

As a result of the adjournment, the evidence of Mr. Goldberg was not heard until the last week in June, a month and a half later.

On 14 May 2007, Philippe Dufresne, counsel for the Canadian Human Rights Commission attempted to file the medical certificates Ex Parte with the Tribunal. (Meaning he was trying to file the certificates WITHOUT allowing Marc Lemire and the Free Speech interveners the ability to see it)

On 17 May 2007 , the Tribunal wrote to all parties and refused to accept the conditions Mr. Dufresne requested and considered the issue still outstanding. In the letter from the Tribunal, Guy Grégoire, Manager of Registry Operations stated the following:

The Canadian Human Rights Tribunal has a duty to conduct its proceedings in compliance with the principles of natural justice, pursuant to which all parties have a full and ample opportunity to appear, present evidence and make representations

Mr. Dufresne’s request that the Tribunal receive the certificates and take them into consideration on an ex parte basis is incompatible with this duty

Therefore, they are being returned to Mr. Dufresne. Given the foregoing, the Tribunal’s request to Mr. Dufresne and Mr. Vigna remains outstanding.

On 24 May 2007, Philippe Dufresne, counsel for the Canadian Human Rights Commission, wrote a letter to the Tribunal asking the Tribunal to reconsider it’s decision to not accept the Medical certificates ex parte, and then requested a ruling from the Tribunal for ex parte evidence to be submitted.

…the Commission respectfully submits that the Tribunal ought to reconsider its directions dated May 17, 2007 and issue a ruling that the medical certificates from Commission counsel may be provided to the Tribunal on an ex parte basis and will not be shared with the parties.

Marc Lemire’s counsel and several interveners in the case were opposed to any ex parte communications sent to the Tribunal.

The matter is res judicata and the medical certificates should be produced forthwith to the parties.

I would ask you to bring to the attention of the Tribunal member my submissions that the explanation tendered for the adjournment on the last occasion has never been verified and without a medical certificate there is no means to justify the adjournment.

These proceedings were adjourned on May 11, 2007 at the request of Mr. Ian Fine for the Commission on the grounds that neither Commission counsel could act as they were ill.

This case raises the interesting question of whether Commission counsels have privacy rights regarding their medical conditions which respondents do not.

I believe a respondent would have been required to provide a medical certificate to obtain an adjournment. If so, Commission counsel should also be required to do so and it should be public.

On June 1, 2007, the tribunal issued a directive to all parties over the Medical Certificate issue, and put the matter over until the next Tribunal hearing date.

The Tribunal is in receipt of a series of letters from the Commission, the Complainant, the Respondent and two of the interested parties (Canadian Association for Free Expression and the Canadian Free Speech league), regarding the May 11, 2007, adjournment of the hearing.

The Tribunal will deal with the matter at the resumption of the hearing, on June 25, 2007 .

On 13 June 2007 , I received a letter from Margot Blight informing me that “I have been recently retained as counsel to the Canadian Human Rights Commission with respect to the continuation of this matter.” It appears that Mr. Vigna is no longer part of the case.

At the resumption of hearings on 25 June 2007, the issue was raised by Margot Blight, newly retained counsel for the Canadian Human Rights Commission.

[THE CHAIRPERSON] The reason I adjourned it is because legal counsel asked me to -- they told me they could not provide -- on their oath of office, they could not proceed that day. I accepted their word as officers of the court to not proceed that day.

And to go to the next point then, before we waste too much time on this, I did not issue an order or a ruling or anything of that sort that they provide medical certificates. I asked, I requested that they provide them to me. As officers of the court, they gave me their word they would provide them.

[THE CHAIRPERSON] That being said, Commission counsel on their oath of office said they wanted an adjournment, and they also undertook to provide something to me at my request. And they did not provide it.

THE CHAIRPERSON: With conditions I did not accept. So that being said, it remains outstanding. It's not an order, it's not a ruling. It was a request from the Tribunal. And the Tribunal will remember these things the next time a request comes along of that sort and they don't provide it.

This is what was sought from the Tribunal. It wasn't provided the way it was asked for from the Tribunal, but that's the matter.

Due to time constraints, the matter of medical certificates was postponed until the following day, when time was scheduled for argument.

On 26 June 2007 , the Tribunal made it very clear that Mr. Vigna made an undertaking to the Tribunal and the Tribunal will not release him from this undertaking.

MS. BLIGHT: In that case, Mr. Chairman, may I ask the Commission be relieved of its undertaking?

[THE CHAIRPERSON] And, yes, there is a distinction to be drawn between lawyers and non-lawyers. Because when a lawyer says -- I specifically asked him that in my presence, "On your oath of office as an officer of the court, are you telling me you cannot proceed?" And his answer was, "Yes," something to that effect. Mr. Vigna and Mr. Dufresne. And at that point I consented to the adjournment. And it's over with. The adjournment took place.

MS. KULASZKA: That's why they undertook just to file the certificates with the Tribunal, and they know what that means. And those are my submissions.

that I have not issued -- I did not issue a ruling, did not issue an order. I asked, I requested. That's

As a result of the adjournment, the evidence of Mr. Goldberg was not heard until the last week in June, a month and a half later and Marc Lemire was on the hook for travel, legal costs and other costs.

A lawyers undertaking is his personal promise and responsibility. Mr. Vigna clearly gave a personal undertaking to the Tribunal to provide medical certificates.

In numerous letters and oral argument before the Tribunal, counsel for the Commission clearly acknowledges it was undertaking on the part of Mr. Vigna. On numerous occasions the Commission has unsuccessfully tried to be relieved of the undertakings.

As of August 18, 2007, no medical certificates have been provided to justify the adjournment.

Due to the above information. Marc Lemire has filed a complaint with the Law Society of Upper Canada

A lawyer shall strictly and scrupulously carry out an undertaking given to the tribunal or to another lawyer in the course of litigation.

A lawyer shall not give an undertaking that cannot be fulfilled and shall fulfill every undertaking given.

A lawyer must discharge with integrity all duties owed to clients, the public and other members of the profession.

With respect to undertakings, the Rules of Professional Conduct require that :

An undertaking given by a lawyer to the Court or to another lawyer in the course of litigation must be strictly and scrupulously carried out. Unless clearly qualified, the lawyer’s undertaking is a personal promise and responsibility. (Rule 10, comment 8)

The lawyer should give no undertaking that cannot be fulfilled and the lawyer should fulfill every undertaking given. Undertakings should be written or be confirmed in writing and should be absolutely unambiguous in their terms. If the lawyer giving the undertaking does not intend to accept personal responsibility, this should be stated clearly in the undertaking itself. In the absence of such a statement, the person to whom the undertaking is given is entitled to expect that the lawyer giving it will honour it personally. The use of such words as “on behalf of my client” or “ on behalf of the vendor” does not relieve the lawyer giving the undertaking of personal responsibility.

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