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Lawyer on hook for 40% of clients' costs award

|Written By Michael McKiernan

An Ottawa lawyer has been ordered to personally pay $72,000 towards the costs owed by two clients who unsuccessfully challenged a bilingual sign bylaw after a judge found his conduct in the case added to the cost of defending the action.

In a decision released May 30, Ontario Superior Court Justice Monique Métivier awarded the eastern Ontario Township of Russell $180,000 in costs for its successful defence of a local bylaw that required all new commercial signs in the municipality to be in both English and French.

Two men, Russell resident Jean-Serge Brisson and language-rights activist Howard Galganov, launched a constitutional challenge of the bylaw, which they argued was an infringement to their rights to freedom of expression.

Métivier dismissed the challenge in August and has now ordered the lawyer for the two men, Kenneth Bickley, to pay 40 per cent of the costs awards against them. She found Bickley hadn’t acted in bad faith but ruled his conduct had caused unnecessary costs.

“The moving target presented by Mr. Bickley’s conduct of the case meant that positions, documents, and the law had to be constantly examined, re-examined, and reconsidered only to then find a particular position was changed, a motion would not be brought, a stated ground not argued at the hearing, etc. — all over a period of two years,” Métivier wrote.

The prime example, according to Métivier, was the protracted debate over the cross-examination of former Russell mayor Ken Hill, which Bickley said he had no intention of forcing him to attend.

Two months before the hearing, he then served a notice of intent to call Hill as a witness before eventually changing his mind. But that was only after the township had prepared a factum on the issue.

Bickley also attempted to have Galganov appear as an expert witness in Brisson’s case, despite the fact that the court was hearing the matters together. Nevertheless, the township cross-examined Galganov and researched arguments on biased witnesses before Métivier ruled he wasn’t qualified.

According to the ruling, there was little chance of the court ever accepting Galganov as an expert. At the same time, Métivier said the township’s cautious approach was justified because “a careful advocate seldom relies on a certainty as to what a court may rule.”

Another expert proposed by Bickley was “similarly wasteful of time and money,” Métivier said, because he “did not have any credibility on the issue and no expertise.”

In both cases, Bickley prepared and filed affidavits after cross-examination, which forced additional responses from the township.

“This breach of procedure is indicative of negligence, at least,” Métivier wrote. “It also underscores the difficulty faced by the respondent in knowing what case it actually had to meet and explains much of what may appear to be excessive preparation.”

When the hearing began, Bickley attempted to convert the constitutional application into a trial based on an erroneous reading of the Rules of Civil Procedure.

“Eventually, as Mr. Bickley was directed to read the applicable rule, he agreed that his position was contrary to the words of the rule. This showed that he had not seriously prepared for this argument,” said Métivier, who added that much of Bickley’s arguments and submissions on the hearing’s first day were “confusing and occasionally incomprehensible.

At the end of his presentation, I understood little of his client’s cases or, more importantly, his arguments of the law.”

According to the decision, Bickley had at one stage during submissions begun waving the Franco-Ontarian flag. Métivier called it a “mocking gesture showing a lack of civility” but said it had no bearing on her costs decision.

Bickley tells Law Times that solicitor-client privilege prevents him from commenting on the matter, but his lawyer, Allan O’Brien of Nelligan O’Brien Payne LLP, says he has recommended that his client appeal the decision.

O’Brien notes Bickley advised his clients of their risks at every stage and that they haven’t alleged anything improper about their lawyer’s conduct.

Nevertheless, their refusal to waive solicitor-client privilege prevents Bickley from elaborating on the advice he gave them or the specific instructions he received from them, says O’Brien.

“I believe Mr. Bickley was placed in a very precarious position. In a sense, Mr. Bickley is being clothed with the alleged missteps of his clients without being allowed to perhaps explain openly why he took the steps he did.”

The township had asked for more than $300,000 in costs, while Galganov and Brisson had offered to pay $20,000 each. While she found the matter was an important one, Métivier said there was no public interest served by the litigation and that the defendants had an awareness of the potential cost of defeat.

After launching his application, Galganov told a newspaper that the legal proceedings could “easily cost the municipality $250,000.”

Ronald Caza, a partner at the Ottawa office of Heenan Blaikie LLP who represented the township, says the costs decision was an important one for Ontario’s francophone community. “The francophone community, as the linguistic minority in Ontario, is constantly needing to go before the courts in order to defend itself,” he says.

“It’s very expensive and it’s very discouraging to always need to invest time and money, but this sends the message that indeed the preservation of their language and culture is important and that it is worthwhile making the efforts.”

Galganov had launched the original constitutional challenge despite not being a resident of Russell. In August 2010, Métivier found he had no standing to bring the application because the bylaw didn’t affect him.

Brisson had deliberately changed his 30-year-old sign in order to breach the bylaw, but Métivier found the township’s move didn’t violate his constitutional rights.

For his part, Caza says that by giving English and French equal prominence on signs, the bylaw served the purpose of protecting the francophone community in Russell.

“They can see all around as they’re living their lives that in their community, the francophone culture and language is important. When there are bylaws like this, you get less assimilation, which happens when francophones decide they’re no longer going to make any efforts to live in French.”

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