The Commentaries are intended to call the attention of lawyers to promising or threatening developments in the law, in civil procedure, in developing their skills, or simply to describe something curious, funny or intriguing.
Justice Côté recently retired from the Court of Appeal of Alberta and currently acts as an arbitrator, mediator, or referee under Rules 6.44 and 6.45 of the Alberta Rules of Court.
He may be contacted through Juriliber at email: firstname.lastname@example.org or phone 780-424-5345.
Personal Costs Against Solicitors
When can the court make a solicitor pay costs personally? The case law was strict, almost prohibitive. But in May 2017, the Supreme Court of Canada issued a new judgment on the subject: Director of Criminal and Penal Prosecutions v. Jodoin2017 SCC 26.
If one looked only at the statement in Jodoin of the test for such an order, (or its routine statement that this will not come up often), one might think that the change made by Jodoin was small. But if one looks at the facts of the case, and the description of the basic underlying principles, there are considerable indications that from now on, it will be easier for courts to award costs personally against solicitors. The Supreme Court makes it clear that all courts have that power, including statutory courts such as Provincial Court or the Federal Courts.
What is new, is that such costs can now be awarded against defence counsel in a criminal prosecution of any kind. This is a big development. Costs have been intended since 1875 to be the big regulator of procedural conduct. But the Canadian legal profession have assumed that costs were virtually impossible in a criminal prosecution (even where the Code allows them in summary-conviction or certiorari proceedings).
Whether the court will award costs personally against a solicitor merely for bringing and prosecuting for a client a far-fetched civil suit with poor chances, is probably still doubtful. However, far-fetched or repetitive individual motions or procedures could attract personal costs, as this case itself illustrates. An important part of the test seems to be what was the intention of the solicitor, and what he or she knew. Similar fact evidence can be led against the lawyer, but only on those two comparatively narrow topics. Maybe a lawyer is entitled only to one free bite?
The Supreme Court affirms the rules of natural justice about adequate notice to the solicitor that he or she is in danger of having to pay costs personally, and what are the facts and grounds alleged. And enough time to reply and call contrary evidence. The decision does not discuss whether a fresh solicitor is needed, but does suggest that ordinarily the substantive proceeding should be finished before there is a motion for personal costs by a solicitor.
The evidentiary rules may have changed somewhat. Even though the facts and allegations against the solicitor may overlap with what would be contempt of court or even criminal or professional punishment, the rules of evidence are civil. The standard of proof is a balance of probabilities, and ss. 7 and 11 of the Charter about someone accused of an offence, do not apply. The court is not obliged to follow the contempt route, and may follow the personal-costs route instead. Indeed, two or three of the possible penalties may be imposed on the same solicitor for the same misconduct: contempt, personal costs, and Law Society discipline.
The Supreme Court bases all this personal-costs liability on the power of every court to control its own process and to restrain any conduct which is vexatious. That includes serious unfairness to the opposing party, and bringing the administration of justice into disrepute.
Counsel should now be especially cautious about accepting instructions from a client, or encouraging the client, to make unfounded allegations of bias or misconduct against a judge, master, or opposing party or counsel. Especially repetitively, or before adequate grounds to do so could possibly be known.
Nor is all this confined to bringing proceedings. The lawyer properly punished here was criminal defence counsel who had been raising objections to stall the proceedings. Since the Supreme Court is now keen to punish delay in criminal proceedings, and the Ontario Court of Appeal and the Alberta Court of Appeal have demonstrated a new philosophical approach to delay in civil proceedings, any lawyer instructed by a defendant to delay and stall should exercise great thought and care. Especially if the defendant does not have a lot of readily-exigible assets in Alberta.