![]() On behalf of the Federal Court of Appeal, Justice Stratas held that it could not. For the purposes of the amendment to the notice of appeal, the question was whether the allegation could possibly succeed. As a result, it argued that its trial counsel was conflicted in its representation of Mediatube and failed to sufficiently represent its interests. Mediatube argued that after filing its notice of appeal, it learned that its trial counsel also represented Microsoft (who allegedly had a connection to Bell’s infringing technology) in several trademark filings. ![]() ![]() Bell Canada, 2018 FCA 127, Mediatube sought to amend its notice of appeal to add the ground of “ineffective assistance of counsel.” The basis for the alleged ineffective assistance was an alleged conflict of interest. Courts have held that, in the civil context, a decision can be overturned on the basis of ineffective assistance of counsel in only the rarest of cases - where a party can prove that their lawyer was actually incompetent and that the incompetence resulted in a “miscarriage of justice.” They also focus on what is truly at stake – the relationship between one party and their lawyers – and leave the opposite side out of the subsequent dispute. Unlike an appeal, these processes have the advantage of maintaining the finality of the original decision. Thus, to the extent that a litigant is unsuccessful because of their lawyer, there are a number of avenues available, such as an action in negligence or a complaint to a law society. Typically money, not liberty, is at stake, and Charter rights are rarely implicated. In the context of civil appeals, the considerations are quite different. As the Federal Court of Appeal recognized in this case, if it were otherwise, it would be all too easy for litigants on the losing end, “armed with 20/20 hindsight” and “fueled by disappointment”, to argue that the loss was because of the lawyers and that the trial decision should therefore be set aside. There are obviously good reasons for such a high bar. In order to succeed on this ground of appeal, an accused must overcome the “strong presumption” that their counsel’s conduct fell within the “wide range” of reasonable options. However, even in the criminal context, the bar is high. In that context, it is based on an accused’s right to effective counsel – a right that is set out in the Criminal Code and recognized as a principle of fundamental justice under the Canadian Charter of Rights and Freedoms. Ineffective assistance of counsel has a long history as a ground of appeal in criminal cases. In the latest of a series of unexpected twists (including a mid-trial concession by Mediatube that Bell had not infringed its patent), the appeal has now veered into entirely new territory – raising the question of when “ineffective assistance of counsel” is a valid ground of appeal in civil matters. However, five years into the litigation, with Mediatube’s loss at trial headed to the Federal Court of Appeal, the case has turned out to be more about litigation process than complex issues of patent law. Bell Canada began as a high stakes patent case, with a claim for more than $350 million in damages for infringement of Mediatube’s Internet Protocol Television technology patent.
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