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OCA nixes cost awards against lawyer

Won’t have to personally pay $100,000
|Written By Alex Robinson
OCA nixes cost awards against lawyer
The Ontario Court of Appeal has reversed a lower court decision to award $100,000 in costs personally against a lawyer.

The Ontario Court of Appeal has reversed a judge’s order that a Kitchener-Waterloo lawyer should pay $100,000 in costs personally in a child welfare case.

An appeal judge had ordered lawyer Brigitte Gratl to pay $50,000 in costs to Legal Aid Ontario and $50,000 for her client’s new lawyer in the case, after determining she had provided ineffective assistance in the proceedings.

But the Court of Appeal found that the issue was moot as the original trial judge’s decision, which was overturned by the appeal judge, was actually correct.

“Ineffective assistance of counsel as a ground of appeal has a very narrow application,” Court of Appeal Justice Mary Lou Benotto wrote in Children’s Aid Society of the Regional Municipality of Waterloo v. C.T. 

“It is a ground of appeal. It is not a springboard from which an appellate court engages in retrospective analysis of every aspect of a lawyer’s conduct.”

The case involved a since­debunked Motherisk drug test that Gratl’s client — and the mother in the case — participated in, which resulted in her child being removed from her custody in 2012.

The case languished for years, leaving the parents unable to contact their child, who was in a “legal limbo,” said the appeal judge, Justice Grant Campbell.

In Campbell’s decision, he painted a grim picture of the child welfare system in Canada in which the few lawyers that will take these kinds of legal aid cases are completely overwhelmed.

Campbell took an unusual step of commenting on the system at large in his decision, rather than just simply ruling on the narrow legal issues before him.

Campbell said the “patchwork of child welfare legislation” across Canada is not working and that judges and courts are scrambling to keep up in the underfunded system.

He declared the trial was unfair and said there had been a miscarriage of justice.

He blamed a perfect storm of “errors, incompetence, institutional oversights and mistakes” for how the case had developed.

Campbell ordered that the parents be given access to the child. He found the trial judge’s decision was unreliable, but he declined to issue a new trial as he said it would further harm the child.

He determined that Gratl had “dropped the ball” in how she handled the case and that she failed to register her clients’ objections to delays and procedural unfairness.

The mother terminated her retainer with Gratl in June 2016, after the trial had been completed. She filed a long list of complaints against Gratl, alleging she had ignored instructions, been unprepared and had failed to bring a motion about the mother’s indigenous heritage.

Gratl was not present at the mother’s appeal and filed no evidence in it.

Campbell found that Gratl, who was retained through Legal Aid funds, had provided incompetent counsel.

He also determined that Gratl had breached the Law Society of Ontario’s Rules of Professional Conduct.

After Gratl moved to have these findings reversed, Campbell varied his ruling to set aside the “incompetent counsel” finding, but he determined that Gratl’s involvement as counsel during a specific period of time had still caused a miscarriage of justice.

The Court of Appeal, however, allowed a cross appeal brought by Gratl requesting that the costs order and the conclusion of ineffective assistance be reversed.

The court noted that ineffective counsel is a ground of appeal and not an invitation for the court to analyze every aspect of a lawyer’s conduct.

And as the trial judge had not erred, there was “no ground of appeal left to explore,” Benotto wrote in the decision.

Benotto said that Campbell’s “far-reaching analysis” would be better done in the context of a civil negligence action or a disciplinary investigation by the law society.

Susan Sack, the lawyer representing Gratl in the matter, declined to comment.

Jacquie Mills, a certified specialist in family law, who was not involved in the matter, says the case is shocking in many ways and puts counsel in a ridiculous position. If counsel were ordered to pay costs each time they were unsuccessful, no one would practise family law, she says.

“Counsel is in a difficult position because they cannot waive solicitor-client privilege to provide balanced facts to the judge,” she says.

“Counsel cannot point out to the judge that they warned their client in writing that the argument may not work. Counsel have no way to protect themselves in these circumstances.”

Legal Aid Ontario had intervened in the appeal to ask the court to amend Campbell’s order to provide that any costs payable would be paid to LAO.

It became unnecessary for the Court of Appeal to address this issue after determining the costs award should be reversed.

The Court of Appeal also restored the trial judge’s determination that the parents should not have access to their child, as the appeal judge had found no error by the trial judge when he reversed the order.

The Court of Appeal found that the fresh evidence Campbell considered about access did not support overturning the trial judge’s order.

Julie Kirkpatrick, the lawyer who replaced Gratl in the case and now represents the mother, says she has instructions to seek leave to appeal the decision to the Supreme Court of Canada.

A spokeswoman for the Family and Children’s Services of the Waterloo Region says the organization feels the Court of Appeal correctly interpreted the legislation being considered.

Katherine Hensel, the lawyer representing the father in the matter, did not respond to a request for comment.

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