As improbable as this may seem, it is possible for a lawyer to go into an unopposed hearing … and lose. We should not be embarrassed if this happens to us for it has happened to many (the writer included). You move past it. But you should delve into what happened and a recent decision of our Court of Appeal in Walker v. Walker, 2025 NSCA 16 has some important takeaways for everyone.
First takeaway. Simply because there is no responding party to defend what the court below did does not mean that an appellate court will reverse that decision.
But the second takeaway in Paragraph 60 of the decision is more important:
[60] Before concluding my reasons, I observe that the appellant’s submissions before the judge and this Court did not discharge an important requirement, especially in circumstances where there is no meaningful adversary. There must be a complete, accurate, and balanced briefing presented to the Court – anything less will be contrary to the interests of justice and may well run afoul of other important duties and obligations.
The lesson from Walker is simple. Never assume anything. Never think that you can cut corners if you have no opponent. In fact the contrary is true – always prepare as if you have an opponent. If you are looking for a default judgement be prepared to prove the breach and an amount owing.
And there is commentary in the NSBS Code of Professional Conduct on this very issue. Commentary 6 of provision 5.1-1 states:
When opposing interests are not represented, for example, in without notice or uncontested matters or in other situations in which the full proof and argument inherent in the adversarial system cannot be achieved, the lawyer must take particular care to be accurate, candid and comprehensive in presenting the client’s case so as to ensure that the tribunal is not misled.
There is no suggestion here that counsel in Walker misled the Court. But what the Court is getting at in this decision is that in an unopposed proceeding, the Court may look to you to answer some questions it might have otherwise had for an opposing counsel.
The lesson I learned some thirty years ago is to never assume you have a slam dunk, always prepare as if there will be an opponent, know what you are asking for and the law and, if you are there unopposed, be prepared for the Court to ask you questions based upon what it thinks an opponent would be arguing.