What is the test for “Misconduct”?

“Misconduct” is not limited to deliberate wrongdoing: Birken v. Barnes (1992), 1992 CanLII 910 (BC CA), 93 D.L.R. (4th) 392, 69 B.C.L.R. (2d) 132 (C.A.).

It is not necessary to find that defendant’s counsel set out to present to the jury an opinion on the plaintiff’s reliability in performing work-relevant tasks with the intention that the jury be improperly influenced in the assessment of the plaintiff’s credibility. I accept that counsel’s intention was to demonstrate that the plaintiff had performed tests similar to those administered by the expert, and that the results differed from those obtained by the expert. The words of Southin J.A. in Birkan v. Barnes, supra, are apt: I agree. I wish only to emphasize that the word "misconduct" in Rule 41(7) is not limited to deliberate wrongdoing. There can be "misconduct" although counsel was behaving, in his own mind, honourably and many other members of the bar might agree with the way he dealt with matters.