The Court of Appeal, however, lifted the stay, finding the attorney general was not obligated to negotiate the rates.
Some lawyers say the decision confirms that judges are restrained in terms of setting compensation and picking amici of their choice. It could also potentially lead to fewer lawyers taking on amicus work, lawyers say.
“It’s not always easy to find lawyers who are prepared to accept legal aid rates, so this doesn’t help that obviously,” says John Polyzogopoulos, a partner with Blaney McMurtry LLP, who was not involved in the case.
Amicus counsel are typically appointed in exceptional criminal cases in which the defendant is unrepresented and the issues at hand are particularly complex.
Family lawyers are waiting to see what will happen in the underlying appeal, which will be heard by Koke and will determine whether the trial judge was within his jurisdiction to appoint amici.
The case could have implications for whether amicus can be appointed in family law matters, lawyers say.
In the trial, the judge appointed lawyer Andrew Thomson, who did not respond to a request for comment, to serve as amicus for the wife. The judge then appointed Bonnie Oldham, who has since been appointed to the Ontario Court of Justice, as amicus for the husband after she asked to be removed from the case because he could not afford to pay her and he did not qualify for legal aid. To “avoid an imbalance” due to the appointment of amicus for the wife, the trial judge decided to appoint Oldham as amicus for the husband.
Audrey Shecter, a family lawyer with Beard Winter LLP, who was not involved in the case, says family law matters often involve self-represented litigants, leading frequently to imbalances between those who are represented and those who are not.
Shecter questions whether the case could mean that amicus will be appointed for a self-represented party when amicus has also been appointed for the other spouse.
“Does that mean the court automatically appoints an amicus?” she says. “I can’t possibly see that happening, because then people would say why should I go and retain counsel? I’ll just say I don’t have a lawyer and the court will appoint one for me and the cost to the justice system will be enormous.”
In the appeal, Koke appointed the same lawyers as amici as they were familiar with the case. The two lawyers, however, rejected legal aid rates to act on the appeal. The attorney general suggested three other lawyers who would accept legal aid rates, but Koke felt it necessary that Thomson and Oldham serve as amici.
Koke then stayed the appeal until the attorney general negotiated the rates with the lawyers, saying the government was obliged to do so according to a 2013 Supreme Court of Canada decision in Ontario v. Criminal Lawyers’ Association of Ontario.
In the appeal of the stay, the appellant Crown argued that the decision does require the attorney to negotiate in good faith and does not allow for a stay of proceedings conditional on such negotiations.
The Court of Appeal agreed with the Crown’s interpretation. The Court of Appeal found that the 5-4 majority decision in the Criminal Lawyers’ Association suggested that the attorney general should meet to discuss rates when amicus is appointed, but it never said there was an obligation to negotiate rates in good faith.
“In this case, although the attorney general did not meet with the counsel who were appointed as amicus, there was correspondence about rates,” Court of Appeal Justice Kathryn Feldman wrote in the decision on behalf of a three-judge panel.
“Amicus counsel and the attorney general were unable to reach an agreement. In my view, the attorney general was not required to negotiate further with the appointed amicus, having fulfilled the expectation of the majority decision in Criminal Lawyers’ Association.”
The Court of Appeal found that a court is not necessarily entitled to amicus of its choice if other appropriate counsel has been made available by the attorney general.
“The primary takeaway from this is that where there are counsel who are willing to be an amicus at legal aid rates, it doesn’t appear there is necessarily a basis to appoint a different counsel at a higher rate,” says Jonathan Richardson, a partner with Augustine Bater Binks LLP, who was not involved in the case.
The court also found that there was no need to have both parties represented each by an amicus on appeal and that a single amicus could appropriately argue the appeal.
Feldman said that while the trial judge required two amici to represent each side and maintain a “proper adversarial process,” that logic did not extend to the appeal of the amicus orders.
She added that this was because the appeal would not concern the merits between the parties at trial but with the constitutional and policy issues around a judge’s jurisdiction to appoint amicus in a family law case at the cost of the attorney general.
The court lifted the stay and remitted the matter back to Koke to consider one of the three counsel proposed by the attorney general. While the attorney general asked that the matter be remitted to a different judge, the court rejected this request saying there was no basis for such an order.
Shecter says the decision means more senior counsel might not be as willing to serve as amicus in such appeals, as they’ll be limited to legal aid rates.
“I certainly think that it will make more senior [and] more experienced people think twice about acting as amicus,” she says.
Polyzogopoulos says judges might not appoint amicus if their chosen lawyer does not want to take on the matter at legal aid rates, and they have to choose a lawyer who is unfamiliar with the case.
“If their choice of counsel is being hindered, they might be less likely to appoint them,” he says.
Emilie Smith, a spokeswoman for the Ministry of the Attorney General, said the appeal of the trial judge’s appointment of the two amici will continue, but she declined to comment further.