The importance of a notice of cross-appeal was showcased in the
recent decision of the Ontario Court of Appeal in Hoang v. Vicentini, where counsel for
one of the defendants was removed due to a reasonable apprehension
of conflict of interest. The finding of Justice Laskin, sitting in
chambers, was based on counsel being appointed and paid by the
defendant's insurance company and based on the position taken
by counsel in its notice of cross-appeal. As a result, counsel was
replaced and the insurer was ordered to cover the reasonable costs
of the new counsel. While such an order is not novel, this ruling
highlights the significance of the content of notices of appeal and
In response to a notice of appeal, counsel for the defendant
filed a notice of cross-appeal asking that all particulars of
negligence against their client be set aside, including the one
particular that was covered under the defendant's insurance
policy. Counsel's position in the notice of cross-appeal was
central to the charge that a potential conflict existed between
them and their client:
 The moving parties contend
that by challenging the jury's finding of "unsuitable
choice of unloading area" the insurer has put itself in a
conflict of interest with its insured Can Hoang or, at least, has
created a reasonable apprehension of a conflict. If that challenge
is successful and the other particulars of negligence found by the
jury are not set aside, Can Hoang will lose any chance of being
indemnified by his insurer for the judgment against him.
 Counsel appointed by the
insurer to act for Can Hoang contends that the notice of
cross-appeal filed on Can Hoang's behalf does not create a
reasonable apprehension of a conflict of interest. Instead, counsel
says that he is acting only in the best interest of the insured,
Can Hoang. At trial, counsel for Hoang's mandate was to defend
the action, to attempt to avoid liability, and to minimize damages.
Those objectives have governed the conduct of the defence and will
govern the conduct of the appeal.
Noting the potential for conflict was especially high, Justice
Laskin found that the test for reasonable apprehension of conflict
of interest was met:
 For Can Hoang personally,
an appellate decision overturning the finding of "unsuitable
choice of unloading area", yet leaving in place the findings
of negligent parental supervision, would be disastrous. Can Hoang
would be left without any prospect of indemnification and his son
Christopher Hoang would be left without any hope of recovery. I
thus conclude that the test of reasonable apprehension of conflict
of interest has been made out. The moving parties are entitled to
the three orders I itemized at the beginning of these reasons.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
In Irwin v. Alberta Veterinary Medical Association, 2015 ABCA 396, the Alberta Court of Appeal found that the "ABVMA" failed to afford procedural fairness to a veterinarian undergoing an incapacity assessment.
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).