“In Rand Estate v. Lenton the Ontario Court of Appeal found that the determination of costs against counsel requires a holistic and contextual approach to the conduct of an entire proceeding in order to “…produce an accurate tempered assessment…”
The parties agree and the case law confirms that the test for determining costs against counsel is a two part one. First, did counsel cause costs to be unnecessarily incurred? Second, should the court exercise its discretion to impose costs against counsel despite the requirement that it use extreme cautionbefore doing so (see Galganov v. Russell (Township))?
Decisions granting costs against lawyers are quite rare. As the Divisional Court stated in Carleton v. Beaverton Hotel,
I agree with the appellant’s submission that the ‘extreme caution’ which courts must exercise in awarding costs against a solicitor personally as stated in Young v. Young, means that these awards must only be made sparingly, with care and discretion, only in clear cases and not simply because the conduct of a solicitor may appear to fall within the circumstances described in rule 57.07(1).
In Galganov, the Ontario Court of Appeal reviewed a number of cases in order to determine the principles that apply to the determination of costs against a lawyer in a proceeding in which he or she has acted. It did so in the context of Rule 57.07(1) of the Rules of Civil Procedurerather than Rule 24(9) of theFamily LawRules. Nonetheless the two provisions are sufficiently similar that the case law from the former applies “by necessary implication” to the latter.
The Ontario Court of Appeal offered the following directions in regard to the first part of the two-part test in Galganov:
a. The first step is to determine whether the conduct of the lawyer comes within the rule; that is, whether his or her conduct caused costs to be incurred unnecessarily. To do so, the court must consider the facts of the case and the particular conduct attributed to the lawyer.
b. The rule allowing costs against a lawyer is not intended as punishment for professional misconduct. Rather, it is as indemnity for the time wasted and expenses unnecessarily expended as a result of the conduct of a lawyer.
c. Neither negligence nor bad faith is a requirement for imposing costs against a lawyer.
d. Mere negligence or conduct that does not meet the level of negligence may be sufficient to attract costs against a lawyer.
e. The costs rule is intended to apply “…only when a lawyer pursues a goal which is clearly unattainable or is clearly derelict in his or her duties as an officer of the court …”
f. In determining whether the rule applies, the court must examine “the entire course of the litigation that went on before the application judge”. This requires a “holistic examination of the lawyer’s conduct” in order to provide an “accurate tempered assessment”. But a general observation of the lawyer’s conduct is not sufficient. Instead, the court must look to the specific incidents of conduct that are subject to complaint.
To be clear, and contrary to the submission of Mr. Fogelman, misconduct is not a prerequisite for the application of sub-rule 24(9) if counsel has caused the other side to incur wasted or unnecessary costs. As Justice Rene M. Pomerance of the Superior Court of Justice (“SCJ”) succinctly put it in D. (M.) v. Windsor-Essex Children’s Aid Society: “Compensation may be appropriate even if discipline is not.”