Case: Withenshaw v. Withenshaw, 2023 NSCA 59 (CanLII)
Keywords: ineffectiveness of counsel; enduring power of attorney; “double counting”
The Appellant is granted an “enduring power of attorney” by her mother, Doris Withenshaw. As described by the Nova Scotia Court of Appeal, “powers of attorney are a form of agency which expire on the death or incompetency of the grantor of the power, because that person can no longer ratify, as principal, the acts of her attorney.” However, an enduring power of attorney is “a creature of statute, which permits the attorney to act during the incompetency of the grantor of the power.” (See para. 8).
Following Ms. Withenshaw’s death, the Appellant’s siblings make a request for information about their mother’s remaining assets; eventually applying in the Probate Court to require the Appellant to pass her accounts as Executrix of the estate. (See paras. 1-2).
The Appellant’s siblings next bring proceedings in the Nova Scotia Supreme Court seeking an accounting of assets and restitution for assets improperly taken or used. (See para. 3). The Trial Judge (Gabriel J.) finds the Appellant liable to account to her mother’s estate for $337,287.18, with costs of $30,742.10. (See para. 4).
The Appellant appeals, arguing there is a miscarriage of justice owing to the alleged ineffectiveness of her trial counsel. The Court of Appeal (Brison, Farrar, and Van den Eynden, JJ.A.) finds ineffectiveness of counsel is not an available ground of civil appeal. Despite this, the Court of Appeal allows the appeal in part, finding the Trial Judge erred in “double counting” assets. (See para. 48).
The Court of Appeal provided important guidance on the availability of miscarriage of justice caused by ineffectiveness of counsel in civil cases. As outlined by the Court of Appeal, the availability of this ground of appeal in the criminal context flows from:
- section 686(1)(a)(iii) of the Criminal Code, which allows an appeal from conviction where there has been a “miscarriage of justice”;
- the “right to effective representation of counsel” (i.e. a principle of fundamental justice flowing from s. 650(3) of the Criminal Code and ss. 7 and 11(d) of the Charter, as well as the common law); and
- the right to make full answer and defence and to have a fair trial. (See para. 23; v. G.D.B., 2000 SCC 22, at para. 27).
However, by way of contrast, the Court of Appeal observed that – “usually” – there is no “public interest foundation” to advance this ground of appeal in cases involving a private dispute between private litigants. (See para. 23; Caladon (Town) v. Darzi Holdings Ltd., 2022 ONCA 455, at para. 47). All of which indicates that the Court of Appeal is likely to require some degree of “public interest” before considering ineffectiveness of counsel in a civil case.
Indeed, as outlined by the Court of Appeal at paras. 26-28, there are a variety of policy reasons to support limiting the use of this ground to “extraordinary circumstances”:
It is easy to see that allegations of the type advanced by Ms. Withenshaw against her trial lawyer would result in many appeals degenerating into an unseemly contest between the disappointed litigant and their defensive lawyer – a contest in which neither a busy court nor a victorious respondent should have any interest. If Ms. Withenshaw has a claim to make against her former lawyers, the Court of Appeal is not the place to make it. (See para. 28).
In this case, the ineffective representation of counsel ground of appeal was not available to the Appellant. However, the Court of Appeal allowed the Appellant’s appeal in part – determining that the Appellant “demonstrated…a clear and material error in the calculation of money for which she is responsible to account”. (See para. 48). The Court of Appeal emphasized that the Trial Judge’s “double counting” of some of Ms. Withenshaw’s income was a consequence of “struggling to wade through information unsupported by complete affidavit evidence of explanation…partly as a result of the failure of [the Appellant] to provide documents and do a proper accounting in the first place”. (See para. 49). Ultimately, the Court of Appeal determined that it lacked the information needed to correct the calculations and so remitted the matter back to Gabriel J. to “make that assessment”. (See para. 49).
Counsel for the Appellant: Dianna Rievaj (Highlander Law Group, Upper Tantallon)
Counsel for the Respondent: Richard Norman (Cox & Palmer, Halifax)
Counsel for the Intervenor: William Mahody, K.C. (Washington & Mahody Barristers, Halifax)