Judges could soon take a more aggressive approach to dipping into lawyers’ pocketbooks for costs in cases where unprepared counsel stall matters at Ontario’s busy family law courts, a legal conference has heard.
Justice Carole Curtis, of the Ontario Court of Justice, said it’s often clear to judges whether it is a client or counsel who has caused a case to grind on, adding she successfully used Rule 24.9 of the Family Law Rules when she practised.
The rule calls for an award to be made against counsel if it is shown that the lawyer has “run up costs without reasonable cause or has wasted costs.”
Curtis, speaking to an audience of family law lawyers at last week’s Ontario Bar Association Institute, said, “Call it instinct, call it whatever you like, we were all lawyers, we all had clients. In a case where it’s very clear that the lawyer is responsible, there’s no doubt that the judge will try and fit that situation into Rule 24.9.”
She added, “It’s not that it should be $50,000; $500 or $1,000 sends quite a scary message to a lawyer.”
The remarks were made during a judge’s panel on family law cost claims at the annual continuing legal education conference, held at the Toronto Conference Centre.
Curtis, who presides in Toronto, was joined on the panel by Superior Court Justice Francine Van Melle, the regional senior judge for the central west region, and Superior Court Justice Craig Perkins, who sits in Newmarket. Cheryl Goldhart, of Goldhart & Associates, moderated the session.
Van Melle said few lawyers are aware of - or utilize - the rule, but courts could become more proactive.
“I think you may see it happening more and more, because I know certainly in Brampton, we as judges, our court is very, very busy,” said Van Melle.
“When I hear eight or nine case conferences in a day, four or five of which are not ready to proceed, at some point, somebody’s going to have to bear the cost of that, and I expect it will be the subject of an upcoming meeting of the judges of my region.”
Added Van Melle: “Lawyers on the other side never ask, never refer to this particular rule and never say, ‘Look, he or she should be paying the costs because they’re the one - it wasn’t their client - who didn’t prepare the brief.’”
The judge said clients at case conferences often point out to their lawyers that required information was offered up months ago.
“Those are the cases where the lawyer should be paying,” said Van Melle. “It was the lawyer that, for whatever reason, didn’t put his or her mind to the file and didn’t make the disclosure.”
The judge noted that while requests for costs from lawyers have so far been rare, they may be overdue with the volume of cases courts now face.
“Our resources are getting more and more stretched. It’s just a complete waste of time when people aren’t prepared to do whatever they’re there to do,” she said.
But Goldhart said she would be hesitant to press for costs against an opposing lawyer.
“As counsel I would be quite reluctant, even if I was frustrated to hell . . . by counsel on the other side, to actually come before the courts and say, ‘I want costs personally,’” she said. “I’d have to be pushed beyond places I’ve been pushed.”
Curtis said she had no problem using the rule.
“I did it as counsel and I got them,” said Curtis, who was appointed to the bench just over a year ago.
Perkins said it’s important for counsel to “use the magic words” when submitting a Rule 24.9 motion. And while he admitted to being reluctant to use the rule, he added, “On the other hand, if you put a document in front of us where you use the magic words, or even if you refer to rule 24.9, that’ll help.”
But Harold Niman, a family practitioner with Niman Zemans Gelgoot LLP, tells Law Times in an interview that sidetracking a client’s case to consider a lawyer’s conduct should be avoided. He adds that doing so could risk “lawyer chill.”
He says that, apart from a few rare exceptions, most lawyers act responsibly for clients.
“The clients are there to have their case heard, and it shouldn’t be sidetracked in any real respect by having the lawyer’s competence or abilities questioned during the course of an argument of a case,” he says.
Niman points to a better way of dealing with unprepared counsel through costs awards. Some judges, he says, after determining that a lawyer is responsible for a delay, will add a postscript to their decision ordering a copy of the reasons sent to the client, who can then take the lawyer’s poor conduct into consideration when settling their account.
“That to me is a better way of dealing with that kind of issue, so that ultimately it becomes an issue between the client and the lawyer,” he says.
Gerald Sadvari, a family law practitioner at McCarthy Tétrault LLP, backs the idea of a more aggressive use of the rule. Only once over his 30-year career has he sought costs against an opposing counsel, and the motion wasn’t granted, he says.
“It’s not the way we’ve played the game traditionally, but where it’s one in 100,000 cases, perhaps it should be one in 10,000 cases.”
“No counsel should waste the court’s time,” he says. “It costs everybody too much money. It doesn’t serve the interests of their clients or justice.”
Judges are loath to use Rule 24.9, says Sadvari, as they’re probably unaware of all of the facts behind a delay. But there are cases where the blame is squarely on a lawyer’s shoulders, he suggests.
“Sometimes it’s so blindingly obvious that they had the time and just couldn’t be bothered, that something should be done about it,” says Sadvari.