No Harm, No Foul?

Here’s something that made me do a double-take:

[6]          First, the appellant contends that the trial judge erred in relying on evidence given by counsel (Mr. Callahan) during his submissions.

[7]          We do not accept this submission.  Although Mr. Callahan was a named respondent in the application, the appellant consented to his appearance as counsel.  Moreover, on our review of the record, to the extent that Mr. Callahan’s submissions went beyond the record on factual issues, they were not relied on by the application judge.

[12] This is not a case for costs. Although we appreciate that the respondent did not object to Mr. Callahan appearing as counsel either here or below, the reality is that he was a named respondent and that his conduct was central to the factual circumstances giving rise to both the application and this appeal. He should not have appeared as counsel in either forum.

Huh? Did I read that excerpt correctly?

The respondent, a lawyer, appearing as counsel below and before the appeal panel does not constitute a palpable and overriding error?

The reason?

The appellant’s consent?

What about procedural fairness and the court’s inherent jurisdiction in controlling its own process and avoiding bringing the administration of justice into disrepute?

How about the fact that the lawyer is an officer of the court and under the Rules of Professional Conduct owes a duty to uphold the integrity of the legal profession and the public administration of justice by avoiding real or apprehended conflicts of interest?

What about the prohibition against appearing as counsel in one’s own cause?

Ricciuto v. Somers2013 ONCA 153 (Ont. C.A.) per curiam: Doherty, MacPherson and Watt JJ.A.

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