File Number: CC2013
CAPITAL SUPREME COURT
(ON APPEAL FROM THE ONTARIO COURT OF APPEAL)
BETWEEN:
THE CORPORATION OF THE TOWNSHIP OF RUSSELL
APPELLANT
AND
KENNETH JOHN BICKLEY
RESPONDENT
Appellant’s Factum
The Corporation of the Township of Russell
Capital Supreme Court
2 TABLE OF CONTENTS
Page
PART I - OVERVIEW
3
A. Statutory Standards Governing the Award of Costs Against Counsel
3
and the Use of Client Instructions and Approval as a Shield Against Costs
PART II - STATEMENT OF FACTS
3
A. The Parties
3
B. The Findings of Negligence and Wasted Costs
4
C. The Decision of the Ontario Court of Appeal
5
PART III - POINTS IN ISSUE
6
PART IV – STATEMENT OF ARGUMENT
7
Issue 1: What are the statutory standards governing the award of costs
against counsel under Rule 57.07(1) of the Rules of Civil Procedure,
RRO 1990, Reg. 194 and similar provincial legislation?
7
A. Statutory Standards of Solicitor Conduct Attracting Costs Personally
7
B. Common Law Standard of Conduct
8
C. Clarification of the Two Standards is a Question of Public and
National Importance
10
Issue 2: Can client instructions and approval provide a shield against costs 13
caused by counsel?
A. Overview
13
B. The Impact of Solicitor-Client Privilege on R. 57.07(1) is a Question of 14
Public and National Importance
C. The Solicitor-Client Defence
16
D. Mr. Bickley Is Solely Responsible for his Conduct
21
E. Young v. Young Revisited
28
PART V - NATURE OF ORDER SOUGHT
29
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3 PART I - OVERVIEW
A. Statutory Standards Governing the Award of Costs Against Counsel and the Use of
Client Instructions and Approval as a Shield Against Costs
1.
A barrister whose conduct results in costs being wasted, or incurred unreasonably, may be
deprived of his or her own costs or required to pay the costs of other parties. The jurisdiction to
make such an award exists under the common law and under provincial rules of court and
procedure.
2.
This appeal is about the statutory standards governing the award of costs against counsel,
and whether client instructions and approval can provide a shield against costs caused by the
negligent conduct of counsel.
3.
The Court of Appeal erred in law in applying the incorrect standard for when costs can be
awarded against counsel under Rule 57.07(1) of the Rules of Civil Procedure, RRO 1990, Reg.
194, thereby finding that instructions received by counsel to act negligently provide a shield
against liability for legal costs ordered against a client. 4.
In the alternative, the Court of Appeal failed to consider whether the cumulative negligent
and wasteful conduct of counsel, as found by the Application Judge and accepted on appeal,
amounted to reprehensible conduct, assuming that the common law standard enunciated in Young
v. Young, [1993] 4 S.C.R. 3 applies in the statutory context.
5.
The decision of the Court of Appeal represents an erroneous application of judicial
discretion, running contrary to the express language of Rule 57.07(1) of the Rules of Civil
Procedure, RRO 1990, Reg. 194. The Court of Appeal’s error has implications well beyond the
present dispute given that the language of Rule 57.07(1) is mirrored in the rules of court or civil
procedure found in four other Canadian common law provinces. The statutory standards for when
liability for client costs attaches to lawyers for negligent conduct are of crucial public and
national importance to the bars of Ontario and elsewhere, and the proper administration of
justice.
PART II - STATEMENT OF FACTS
A. The Parties
6.
The Respondent, Kenneth John Bickley, was the lawyer of record for both Messrs.
Howard Galganov and Jean-Serge Brisson in their respective Applications to quash a by-law
enacted by the Township of Russell (“Township”). The by-law requires that new exterior
commercial sign be in French and in English.1
7.
The Application Judge Métivier J. dismissed both Applications with costs. The Township
brought a motion for costs against the solicitor personally. This appeal flows from this motion for
costs and does not regard the underlying constitutional Applications.2
1 Galganov v. Russell (Township), 2011 ONSC 3065 at para. 2. (“Decision on Costs”) 2
Decision on Costs, at para. 2.
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4 B. The Findings of Negligence and Wasted Costs
8.
In preparation for and during the hearing of both Applications, the Application Judge
found that Mr. Bickley’s conduct was often highly inappropriate, negligent and the direct cause
of unnecessary costs incurred by the Township.3
9.
Mr. Bickley submitted that solicitor-client privilege prevented him from “making any
response” with respect to a number of issues raised by the Township. He further denied that he
“acted at any step in the proceeding without the instructions and authority of [his] clients.”4
10.
The application judge acknowledged Mr. Bickley’s duty towards his clients, but
nevertheless made findings of fact that Mr. Bickley’s actions caused costs to be incurred by the
Township and that his actions were attributable to Mr. Bickley personally, not his clients.5
11.
When a lawyer claims that he/she was following client instructions, a review of the record
and first hand evidence are necessary to determine the validity of the allegation. Justice Métivier
stated: “Courtroom litigation has its own mood and atmosphere, which cannot always be
accurately reflected”. However, Justice Métivier specifically attributed six (6) of the fifteen (15)
issues raised by the Township to Mr. Bickley, concluding that he was solely responsible for the
wasted costs, making several general findings with regards to his conduct:
i.
“Mr. Bickley directly and negligently caused additional costs to be incurred”;
ii.
“Much of the arguments and submissions of Mr. Bickley were confusing and
occasionally incomprehensible”;
iii.
“It was evident that there had been little if any serious preparation”;
iv.
Mr. Bickley’s “breach of procedure was indicative of negligence, at least”;
v.
Mr. Bickley wrongly invoked Rule 39 to attempt to transfer the Application into a
trial;
vi.
Mr. Bickley breached the Rules by preparing and filing affidavits after his client
affiants had been cross-examined;
vii.
Mr. Bickley wrongly changed his position numerous times regarding the
examination of a third party, the Mayor of Russell;
viii.
Mr. Bickley circumvented the rules of evidence and surreptitiously attempted to
enter new evidence on the eve of the hearing; and
ix.
Mr. Bickley wrongfully proposed his own client as an “expert” witness.6
3
Decision on Costs, at para. 90.
Affidavit of Kenneth Bickley, sworn November 23, 2010 at paras. 11-13.
5
Decision on Costs, at paras. 69-70 & 90. 6
Decision on Costs, at paras. 84-85 & 93.
4
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5 12.
Justice Métivier was clear and unequivocal in stating that overall “time was wasted during
the hearing, but very significant costs were incurred by the respondent as a result of various
positions taken by Mr. Bickley, by his lack of preparation, which in some cases amounted to
negligence.”7
13.
Having observed Mr. Bickley’s conduct first hand during four days of hearing, and
having read all the materials submitted by the parties for the motion, the application judge
exercised her discretion to order costs payable personally by Mr. Bickley as she found that “Mr.
Bickley directly and negligently caused additional costs to be incurred.”8 14.
The application judge ordered $180,000 in costs against Mr. Galganov and Mr. Brisson
with 40 per cent payable by Mr. Bickley.9
C. The Decision of the Ontario Court of Appeal
15.
On appeal, Mr. Bickley claimed that he had been acting upon client instructions and that
he could not fully defend himself as he was bound by solicitor-client privilege.10 16.
The Court of Appeal overturned the costs award on the basis that the Application Judge
erred in principle by not attempting to distinguish the Applicants’ conduct from Mr. Bickley’s
conduct. The Court of Appeal held that counsel’s conduct must be assessed separately as he
should not be responsible for advancing a weak case if instructed to do so by his clients.11 17.
The Court of Appeal further discounted the Application Judge’s consideration of the
cumulative effect of what she found to be Mr. Bickley’s negligent conduct resulting in
unnecessary costs to the Township. As a result, though the Court of Appeal found that Mr.
Bickley’s conduct fell below the standard of care expected of a reasonably competent lawyer in
Mr. Bickley’s position, Mr. Bickley’s clients had approved of his actions. The Court of Appeal
below held that even if Mr. Bickley were negligent, his conduct would not merit an award of
costs against him personally given the dictate of the Supreme Court of Canada in Young v.
Young, [1993] 4 S.C.R. 3.12
18.
In so doing, the Court of Appeal revisited four specific incidents of Mr. Bickley’s conduct
that the Application Judge found to have incurred costs:
i.
The ongoing debate of whether the mayor of the Township would be called as a
witness – the Court of Appeal confirmed that "[Mr.] Bickley eventually changed
his mind" regarding his position to call the mayor as a witness. Despite the fact
that they attributed this action to Mr. Bickley, the Court of Appeal determined that
7
Decision on Costs, at para. 90.
Affidavit of Marc Sauvé, sworn October 26, 2010; Decision on Costs, at para. 93.
9
Decision on Costs, at para. 95.
10
Galganov v. Russell (Township), 2012 ONCA 410 at para. 5. (“Court of Appeal Decision”)
11
Court of Appeal Decision, at paras. 29 & 42.
12
Court of Appeal Decision, at paras. 42-43. 8
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6 the application judge had made no attempt to distinguish Mr. Galganov and Mr.
Brisson’s conduct from Mr. Bickley’s conduct;13
ii.
The decision to propose Winn and Galganov as expert witnesses – the Court of
Appeal acknowledged that it was Mr. Bickley’s idea to propose his own client,
Mr. Galganov, as an expert witness in the affiliated case. The Court of Appeal
determined that this conduct would fall below the standard of care accepted of a
reasonably competent lawyer but that he was not responsible for the additional
costs seeing as "his clients approved of it". As for Dr. Winn, the Court of Appeal
determined that the application judge had used hindsight to evaluate "[Mr.]
Bickley’s decision" with no further clarification;14 iii.
The attempted introduction of an article which had not been put to the Township’s
expert – the Court of Appeal confirmed that "[Mr.] Bickley sought to introduce an
article" which led to additional affidavit being prepared by an expert;15 and iv.
The request to turn the application into a trial relying on an erroneous reference to
rule 39.5 (which does not exist in the Rules of Civil Procedure) – The Court of
Appeal confirmed that Mr. Bickley conceded that his position was contrary to the
words of the Rule and that "[Mr.] Bickley agreed his position was not tenable."16 19.
Despite all of these findings against Mr. Bickley being confirmed by the Court of Appeal
as noted above, the Court of Appeal determined that the application judge:
i.
"erred in principle in respect of the Mayor Hill incident by not separating the
conduct from that of his clients"; and
ii.
"erred in using hindsight with respect to costs related to proposing Dr. Winn as an
expert."17
20.
These two errors were deemed sufficient to reverse the entire costs award against Mr.
Bickley personally.18 PART III - POINTS IN ISSUE
21.
The Corporation of the Township of Russell was granted leave to appeal by this
Honourable Court on the following issues:
i.
What are the statutory standards governing the award of costs against counsel
under Rule 57.07(1) of the Rules of Civil Procedure, RRO 1990, Reg. 194 and
similar provincial legislation; and
13
Court of Appeal Decision, at paras. 27-29.
Court of Appeal Decision, at para. 32.
15
Court of Appeal Decision, at para. 34.
16
Court of Appeal Decision, at para. 35.
17
Court of Appeal Decision, at para. 42. 18
Court of Appeal Decision, at para. 42.
14
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ii.
7 Can client instructions and approval provide a shield against costs caused by
counsel?
PART IV – STATEMENT OF ARGUMENT
Issue 1:
What are the statutory standards governing the award of costs against
counsel under Rule 57.07(1) of the Rules of Civil Procedure, RRO 1990, Reg.
194 and similar provincial legislation?
22.
Confusion has arisen in the jurisprudence between the common law and statutory
standards for when courts are to award costs against counsel in Ontario, British Columbia,
Alberta, Manitoba, Saskatchewan and New Brunswick. 23.
The higher standard of reprehensible conduct required by the common law as reviewed by
this Honourable Court in Young v. Young, [1993] 4 S.C.R. 3, such as gross neglect or bad faith, is
not reflected in the statutory language. The preconditions to a cost award against counsel are, for
example, inter alia, negligence, neglect or default. 24.
Some courts have applied the higher common law standard without consideration to the
specific language of the applicable legislation. Other courts have not, thereby creating
inconsistency in the standard of conduct attracting a cost award against counsel. 25.
This case offers the opportunity for this Honourable Court to sculpt a meaningful decision
clarifying the true interpretation and plain meaning of Rule 57.07(1) of the Ontario Rules of Civil
Procedure, a Rule whose language is mirrored in the provinces of New Brunswick, Manitoba,
British Columbia and arguably Alberta.19 A. Statutory Standards of Solicitor Conduct Attracting Costs Personally
26.
Rule 57.05(1)(c) of the Ontario Rules of Civil Procedure grants the court the jurisdiction
to award costs “where a lawyer for a party has caused costs to be incurred without reasonable
cause or to be wasted by undue delay, negligence or other default.”20 27.
New Brunswick’s legislation imposes a higher standard, awarding costs against a lawyer
under Rule 59.13 of the Rules of Court “[w]here a solicitor for a party has acted in disregard of
the interests of justice and, without cause, has caused costs to be wasted or incurred improperly
by delay, negligence or other default.”21 28.
Section 57.07(1) of the Manitoba Court of Queen’s Bench Rules sets a lower standard
permitting the court to award costs where the lawyer’s conduct “caused costs to be incurred
without reasonable cause or to be waste by undue delay, or other default.”22 19
Rules of Civil Procedure, RRO 1990, Reg. 194, R. 57.07(1); Court of Queen's Bench Rules, Man Reg 553/88,
Rules 57.07(1-3); Rules of Court, NB Reg 82-73, Règles de procédure, R. 59.13; Supreme Court Rules, BC Reg
221/90, R. 57; and Alberta Rules of Court, Alta Reg 124/2010, R. 10.49(1).
20
Rules of Civil Procedure, RRO 1990, Reg 194, 57.07(1)(c).
21
Rules of Court, NB Reg 82-73, Règles de procédure, R. 59.13.
22
Court of Queen's Bench Rules, Man Reg 553/88, Rules 57.07(1).
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8 29.
British Columbia similarly provides that, under Rule 57(37) of the Court Rules Act, the
court may award costs against a lawyer where he or she “has caused costs to be incurred without
reasonable cause, or has caused costs to be wasted through delay, neglect or some other fault.”23 30.
Such provincial legislation has been held to not constitute simply a reaffirmation of the
court’s jurisdiction over solicitors, but an alteration of the common law, expressly providing for
costs consequences in the situations articulated in the legislation, including negligence.24
31.
It is of note that the amendments in the Ontario and British Columbia Rules, for example,
came after the decision of this Honourable Court in Young, supra rendered in 1993, and clearly
represent an attempt by the various legislatures to lower the standard for when courts may award
costs against the solicitor acting negligently. Clearly, the legislatures, mindful of the efficiencies
or lack thereof in the administration of justice, intended to visit counsel whose improper or
negligent conduct causes additional waste to the administration of justice with costs
consequences payable by counsel personally.
B. Common Law Standard of Conduct
32.
The common law standard for solicitor conduct warranting costs, by contrast, is high as it
stems from the court’s inherent jurisdiction to control and discipline its officers. Its function is
both punitive and compensatory. Lord Wright articulated it thus in Myers v. Elman, [1939] 4 All
E.R. 484 (H.L.), at pp. 508 - 509:
... The underlying principle is that the court has a right and a duty to supervise the conduct
of its solicitors, and visit with penalties any conduct of a solicitor which is of such a
nature as to tend to defeat justice in the very cause in which he is engaged professionally.
... The matter complained of need not be criminal. It need not involve peculation or
dishonesty. A mere mistake or error of judgment is not generally sufficient, but a gross
neglect or inaccuracy in a matter which it is a solicitor's duty to ascertain with accuracy
may suffice. ... It is impossible to enumerate the various contingencies which may call
into operation the exercise of this jurisdiction. It need not involve personal obliquity. The
term “professional misconduct” has often been used to describe the ground on which the
court acts. It would perhaps be more accurate to describe it as conduct which involves a
failure on the part of a solicitor to fulfill his duty to the court and to realise his duty to aid
in promoting, in his own sphere, the cause of justice. [Emphasis added].25
33.
Referring to Myers, supra, the test was treated by Sachs J. in Edwards v. Edwards, [1958]
2 All. E.R. 179 at p. 186 as requiring a “‘serious dereliction of duty,’ something which justifies
… the use of the word gross.”26 34.
This Honourable Court dealt with the common law jurisdiction to award costs against a
lawyer personally in Young v. Young, [1993] 4 S.C.R. 3. In writing the Court’s decision on costs
23
Court Rules Act, R.S.B.C. 1996, c. 80, Rule 57(37).
Worsley v. Lichong (1994) 17 OR (3d) 615 at para. 10; Marchand (Litigation Guardian of) v. Public General
Hospital of Chatham (1998), 16 C.P.C. (4th) 201 (Ont. Ct. (Gen. Div.); McGrade Estate (Re) (2003), 65 O.R. (3d)
829 (Ont. S.C.J.); and Nazmdeh v. Ursel, 2010 BCCA 131 at para. 101.
25
Myers v. Elman, [1939] 4 All E.R. 484 (H.L.), per Lord Wright, pp. 508-509.
26
Edwards v. Edwards, [1958] 2 All. E.R. 179, p. 186.
24
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9 (with L’Heureux-Dube J. dissenting) McLachlin J., as she then was, emphasized the
compensatory nature of the award:
The Court of Appeal held that no order for costs should have been made against Mr. How.
There is no need to repeat that entirely satisfactory analysis. The basic principle on which
costs are awarded is as compensation for the successful party, not in order to punish a
barrister. Any member of the legal profession might be subject to a compensatory order
for costs if it is shown that repetitive and irrelevant material, and excessive motions and
applications, characterized the proceedings in which they were involved, and that the
lawyer acted in bad faith in encouraging this abuse and delay. It is clear that the courts
possess jurisdiction to make such an award, often under statute and, in any event, as part
of their inherent jurisdiction to control abuse of process and contempt of court. …
Moreover, courts must be extremely cautious in awarding costs personally against a
lawyer, given the duties upon a lawyer to guard confidentiality of instructions and to
bring forward with courage even unpopular causes. A lawyer should not be placed in a
situation where his or her fear of an adverse order of costs may conflict with these
fundamental duties of his or her calling.27
35.
The analysis was in the context of a cost award at the solicitor-client costs tariff which, in
and of itself, has a deterrent function. This salient fact informs the authority of Justice
Cumming’s analysis which was referentially incorporated by the now Chief Justice. 36.
Cummings J.A. reviewed many of the authorities in attempting to discern the standard of
conduct required to support an order for costs against a lawyer. Noting its compensatory function
at page 104, he emphasized that benchers are better positioned to determine what constitutes
professional misconduct at page 108. The courts are to avoid such analysis.28 37.
Cummings J.A. then reviewed the court’s general powers to make orders for costs on a
solicitor/client basis at pp. 104-105, quoting from McEvoy v. Ford Motor Co., (1990), 45
B.C.L.R. (2d) 363 (S.C.), where Mr. Justice Hinds cites Stiles v. B.C. (W.C.B.) (1989), 38
B.C.L.R. (2d) 307 (C.A.), at p.5 as authority for the following proposition:
Solicitor and client costs should not be awarded unless there is some form of
reprehensible conduct, either in the circumstances giving rise to the cause of action, or in
the proceedings, which makes such costs desirable as a form of chastisement. The words
"scandalous" and "outrageous" have also been used.29
38.
Cumming J.A. states that if solicitor-client costs require “scandalous” and “outrageous”
conduct, “[i]t would seem to follow that an award of solicitor-and-client costs against a solicitor
personally must necessarily be an award which does more than merely compensate. It carries, as
well, some punitive or deterrent element.”30 39.
Recently in Nazmdeh, supra, the British Columbia Court of Appeal explained Cummings
J.A.’s reasoning in Young at paras. 61-62:
27
Young v. Young, [1993] 4 S.C.R. 3, p. 154.
Young v. Young, (1990), 75 D.L.R. (4th) 46 (B.C.C.A.), aff’d, [1993] 4 S.C.R. 3, pp.104, 105, & 108. 29
Young, supra, (B.C.C.A.), pp. 104, 105, and 108; Stiles v. B.C. (W.C.B.) (1989), 38 B.C.L.R. (2d) 307 (C.A.), p. 5.
30
Young, supra, (B.C.C.A.), p. 108.
28
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10 this reasoning [by Cummings J.] implies that because there must be “reprehensible”
behaviour for an order of special costs against a party, there must also be “reprehensible”
conduct by a lawyer if he is to be responsible for those special costs….“Special costs” are
meant to chastise reprehensible conduct… However the statement does not support a
conclusion that all cost awards against a lawyer require ‘reprehensible conduct’, or that
Rule 57(30) bears such a meaning. The court was not considering the conduct necessary
to support an order that the lawyer pay party and party costs personally. [Emphasis
added].31
40.
Indeed, the BC Court of Appeal notes in Nazmdeh, supra at para. 63 that there is little in
Cumming J.A.’s reasons on the true interpretation of the statutory jurisdiction of the courts to
award costs against a lawyer:
The Rule, which is set out above, is also quoted in Young and some examples (including
World Wide Treasure Adventures Inc. v. Trivia Games Inc.) are cited as to the application
of the Rule. However, apart from saying that the Rule should be interpreted in a way
consistent with barristers’ immunity, there is virtually no analysis of the Rule’s plain and
proper meaning. [Nor is there] discussion in the Supreme Court of Canada reasons of
Rule 57(30) or of its correct interpretation, other than the references to the reasons given
in this Court.32
C. Clarification of the Two Standards is a Question of Public and National Importance
41.
The BC Court of Appeal opines in Nazmdeh that it is this lack of discussion in Young,
supra as to the statutory standard that has led to confusion in the case law:
That some confusion has arisen in the case law is not the result of the language of the
Rule. The confusion has rather, with respect, been caused by failing to examine the
language of the Rule, to interpret it in accordance with accepted principles, by failing to
regard the Rule as an expansion of the powers of the court from those that existed under
its inherent jurisdiction, and by mistakenly incorporating into the test for all cost orders
against lawyers the test for an award of special costs.33
42.
The Applicants respectfully submit that, indeed, this Honourable Court’s decision in
Young was limited to and decided under the court’s inherent jurisdiction to award costs, and not
the applicable British Columbia Rules of Court. McLachlin J., as she then was, did not examine
the language of Rule 57(3) in Young, supra. No clarification was provided as to whether
provincial legislation and rules of court expand the powers of the court from those that existed
under its inherent jurisdiction. What is more, the Court did not examine the second precise issue
arising in this case, namely whether counsel can shield behind the client’s instructions even if his
conduct is characterized as negligent.
31
Nazmdeh, supra, paras. 61-62.
Nazmdeh, supra, para. 63. 33
Nazmdeh, supra, paras. 65, 100.
32
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11 43.
The consequence is that two lines of interpretive authority have developed about the role
of r. 57.07(1) in regulating the conduct of lawyers. In some jurisdictions, Young has been read as
incorporating policy considerations requiring extreme caution and the need for a finding of
reprehensible conduct into the test for all cost orders against lawyers, regardless of the applicable
statutory language. This has resulted in bald claims of solicitor-client privilege being used to
shield counsel from the legal consequences of negligently executing their duties as officers of the
court.
44.
The plain meaning of r. 57.07(1) and its mirror provincial legislation suggest a lower
standard. The grammatical and ordinary sense of the words suggest that the only necessary
preconditions are that costs have been incurred without reasonable cause or that costs have been
wasted as a result of either delay, negligence or other default on the part of the lawyer.
45.
Some courts across Canada have found that the scheme and object of the rules allowing
for such costs is consistent with this lower threshold. Mere negligence has been found to attract
costs consequences in addition to actions or omissions which fall short of negligence.34
46.
In Worsley v. Lichong, (1994), 17 O.R. (3d) 615 (Gen Div.), Haines J. found that r. 57.07
should be given its ordinary meaning and that the rule permits courts to make a cost order against
a solicitor where it is fairly determined that the proper responsibility for the payment of such
costs rests with the solicitor.35
47.
In yet other cases, negligence or professional incompetence is found to be sufficient for
an award against the solicitor personally. In Nazmdeh, supra at para. 102, the Court of Appeal
held that “[u]nder Rule 57(37), mere delay and mere neglect may, in some circumstances, be
sufficient for such an order against a lawyer”. The Court of Appeal continued, finding that there
was no requirement under the Rule “for “serious misconduct”, the standard required under the
court’s inherent jurisdiction… “[R]eprehensible” conduct applies only in cases of orders against a
lawyer for special costs”. Similarly in 640612 Ontario Inc. v. 253547 Ontario Ltd., [1987] O.J.
No. 1186 (QL), 26 C.P.C. (2d) 93, the defendant’s lawyer was ordered to pay costs for bringing a
motion to increase an order for security for costs when the order granting the security was under
appeal.36
48.
The Ontario Court of Appeal in the instant case adopted a higher standard finding that,
though bad faith is not required, “…[i]t is 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 that resort should
be had to [r]. 57.07.” Applying this standard, the court found that the Applicant Judge’s finding
of general and specific negligence resulting in unnecessary costs did not fall under r. 57.07. In
other words, the fact that “time was wasted during the hearing, but very significant costs were
incurred by the respondent as a result of various positions taken by Mr. Bickley, by his lack of
34
Marchand (litigation Guardian of), supra; and McGrade Estate (Re), supra.
Worsley v. Lichong, (1994), 17 O.R. (3d) 615 (Gen Div.). 36
Nazmdeh, supra, paras. 65, 100; Torchia v. Royal Insurance Co., [2001] O.J. No. 346 (QL), 102 A.C.W.S. (3d)
1044; Lico v. Griffiths (1996), 7 C.P.C. (4th) 131, 38 C.C.L.I (2d) 240 (Ont. Ct. (Gen. Div.)); Bank of Nova Scotia v.
George Hill Cartage Ltd., [2001] O.J. No. 1776 (QL), 105 A.C.W.S. (3d) 244 (S.C.J.); and 640612 Ontario Inc. v.
253547 Ontario Ltd., [1987] O.J. No. 1186 (QL), 26 C.P.C. (2d) 93.
35
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12 preparation, which in some cases amounted to negligence,” a finding of fact by Justice Métivier,
was not enough.37 49.
This finding of the Ontario Court of Appeal is contrary to decisions rendered in other
jurisdictions. In the Nova Scotia Supreme Court decision in Rowe v. Lee, 2007 NSSC 31 costs
were awarded against a lawyer personally for failing to file a memorandum of law, thereby
resulting in adjourned hearings. In Loates v. Loates (2000), 185 D.L.R. (4th) 525 (Alta.Q.B.)
costs were awarded against a lawyer who consistently put forward irrelevant material and
argument, and engaged in personal debate with the court and opposing counsel with no legal
benefit to the client. The Alberta Court of Appeal similarly awarded costs in circumstances of
delay in Hunter v. Preston (2001), 10 C.P.C. (5th) 13 (Alta. C.A.) and Trang v. Alberta, 2007
ABCA 267. Both cases saw costs orders against counsel who failed to appear to speak to a
matter. In Trang, supra at para. 14, the Court of Appeal held that “when counsel does not show
up, or accept conflicting duties, their opponents and the court are not only the ones who waste
work, time and travel expenses. Other unrelated litigants also wait months for a court date though
they could have used the one later cavalierly discarded by this counsel.”38
50.
Other courts have employed a much higher standard still, finding that such an order
requires serious misconduct; bad faith; deceit; dishonesty; outrageous conduct; incompetence
amounting to outrageous conduct; or where counsel has been clearly derelict in his or her duties
as an officer of the court.
51.
In Grewal v. Khela (1999), 85 A.C.W.S. (3d) 1018 (B.C.S.C.), for example, such an order
was said to require serious misconduct. In Waters v. DaimlerChrysler Financial Services Canada
Inc., 2011 SKCA 53, the Saskatchewan Court of Appeal found that an award for costs against a
solicitor should only be made in limited circumstances. The court found that there must be more
than mere negligence. There must be a “serious” dereliction of duty. Repetitive and irrelevant
material, excessive motions and applications need to characterize the proceedings, and the lawyer
must have acted in bad faith in encouraging abuse and delay.39
52.
The holding in Marcine v. Marcine (2002), 219 D.L.R. (4th) 22 (Man. C.A.) contradicts
that in Hunter and Tran, supras. Costs against counsel were set aside on appeal for a counsel
who failed to appear in response to a motion. In Billows v. Canarc Forest Products Ltd. (2005),
139 A.C.W.S. (3d) 234 (B.C.S.C.), the court declined to award costs against a lawyer personally
where there was no evidence of bad faith, deceit or dishonest.40
53.
Leading scholars have noted this tug of war in the competing standards of conduct
triggering an award of costs against a solicitor personally. Mark Orkin on costs states,
37
Decision on Costs, at para. 18; and Court of Appeal Decision, at para. 90.
Rowe v. Lee, 2007 NSSC 31; Loates v. Loates (2000), 185 D.L.R. (4th) 525 (Alta.Q.B.); Hunter v. Preston
(2001), 10 C.P.C. (5th) 13 (Alta. C.A.); and Trang v. Alberta, 2007 ABCA 267 at para. 14.
39
Grewal v. Khela (1999), 85 A.C.W.S. (3d) 1018 (B.C.S.C.); Waters v. DaimlerChrysler Financial Services
Canada Inc., 2011 SKCA 53; Marshall Estate (Re) (1998), 17 C.P.C. (4th) 46, 22 E.R.T. (2d) 266 (Ont. Ct. (Gen.
Div.); Somulian v. Attrell Auto Holdings Ltd. (1994), 26 C.P.C. (3d) 75 (B.C.S.C.) (1994), 17 O.R. (3d) 615 (Gen.
Div.); and Perley v. Sypher, (1990), 109 N.B.R. (2d) 427 (C.A.).
40
Marcine v. Marcine (2002), 219 D.L.R. (4th) 22 (Man. C.A.); and Billows v. Canarc Forest Products Ltd. (2005),
139 A.C.W.S. (3d) 234 (B.C.S.C.).
38
Capital Supreme Court
13 Courts have not always been in agreement as to the kind or degree of conduct that will
trigger an award of costs against a solicitor personally. Ontario rule 57.07 speaks of
“negligence or some other default” which would indicate that the categories for making
an award under the rule are within the discretion of the court. The rule, it has been held,
“is not a codification of the common law, but rather an alternation of the common law and
as such, the test for making a compensatory type order for costs pursuant to [the rule]
would not require a finding of ‘bad faith’ [citing Marchand, supra and McGrade Estate
(Re), supra].
Further, the rule speaks of costs incurred without reasonable cause or by reason of undue
delay or negligence, which led the same court to state that mere negligence can attract
costs consequences as well as actions or omissions which fall short of negligence [citing
Marchand, supra at p. 273].41
54.
Paul Perell in “Ordering a Solicitor Personally to Pay Costs” writes, “[t]he current
situation in Ontario is unclear”. More generally,
[t]he main problem concerns the interpretation of the statutory jurisdiction to order a
solicitor personally to pay costs. More particularly, the issue is whether rule 57.07 (or
similar rules in other provinces) can be given plain or literal meaning or whether it must
be read as if it contained a requirement that the solicitor be shown to have been acting in
bad faith or in some reprehensible way deserving the court’s discipline.42
55.
In Ontario, the judicial response has been to create a two-part test. The court first inquires
into whether the lawyer’s conduct falls within Rule 57.07(1) and then considers, as a matter of
discretion and applying extreme caution whether, in the circumstances, the imposition of costs
against the lawyer personally is warranted.43
56.
In the submissions of the Appellant, this test conflates the Young common law test
(applicable according to the B.C. Court of Appeal only when special costs are being awarded)
and the statutory standard. With respect, in blurring the two standards, the Court of Appeal
neutered the clear statutory language permitting courts to award costs against a lawyer for
negligently causing costs to be incurred without reasonable cause.
57.
In the submissions of the Appellant, this Honourable Court’s decision in Young v. Young,
supra, is causing confusion in the jurisprudence and it would be appropriate for this Honourable
Court to clarify the situations when costs may be awarded against a negligent solicitor whose
conduct causes substantial incremental costs to the administration of justice.
Issue 2:
Can client instructions and approval provide a shield against costs caused by
counsel?
A. Overview
41
Mark M. Orkin, The Law of Costs, 2nd ed., Aurora, Ont. Canada Lawbook, Looseleaf, 1987-, p. 2-298.2-2-299.
Paul Perell, “Ordering a Solicitor Personally to Pay Costs” in 25 Advoc.Q 103 2001-2002, pp. 103 and 112.
43
Carleton v. Beaverton Hotel (2009), 314 D. L.R. (4th) 566 (Ont. S.C.J. (Div. Ct.)), at paras. 21 and 25, approved
by the Ontario Court of Appeal in the instant case, Galganov v. Russell, et al., 2012 ONCA 10.
42
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14 58.
It is trite law that an adversarial system obligates counsel to loyally, vigorously and
sometime courageously represent her client. This is captured in the classic passage from the Trial
of Queen Caroline, quoted by Binnie J. in R. v. Neil, [2002] 3 S.C.R. 631 at para. 12:
[A]n advocate, in the discharge of his duty, knows but one person in all the world, and
that person is his client. To save that client by all means and expedients, and at all hazards
and costs to other persons, and, among them, to himself, is his first and only duty; and in
performing this duty he must not regard the alarm, the torments, the destruction which he
may bring upon others. Separating the duty of a patriot from that of an advocate, he must
go on reckless of consequences, though it should be his unhappy fate to involve his
country in confusion.
(Trial of Queen Caroline (1821), by J. Nightingale, vol. II, The Defence, Part 1, at p. 8)44
59.
The duty of loyalty remains today and its necessity undoubtedly prompted this Court in
Young to introduce the extreme caution principle. However, it is not without its limits.
60.
“Fearless” representation requires barristers to take on unpopular causes and not be
dissuaded from pursuing them vigorously due to public opinion. It does not mean that barristers
are entitled to act negligently in this pursuit and take action, regardless of client instructions, that
frustrate the proper administration of justice.
61.
This obligation in reflected in the rules of professional conduct of each province, They are
designed to regulate and guide a lawyers’ interaction with clients and the justice system, while
maintaining their integrity and that of the legal profession.
62.
This tension between the competing public policy directives of solicitor-client privilege,
integrity and the proper administration of justice rests at the fore in the instant case. Mr. Bickley
was found to have acted negligently resulting in specific unnecessary costs. And yet he made a
blanket assertion that he was acting pursuant to client instructions. The Court of Appeal accepted
this argument overturning the lower court decision.
63.
This holding raises a very simple and yet crucial question: if a client instructs his lawyer
to act negligently, can the lawyer do so without fear of personal legal consequence? The answer
to this question goes to the heart of the administration of justice given counsels’ independent
obligations as officers of the court.
B. The Impact of Solicitor-Client Privilege on R. 57.07(1) is a Question of Public and
National Importance
64.
There is a lack of clarity in Canadian jurisprudence with respect to whether client
instructions and approval can shield negligent counsel from a cost award given the “extreme
caution” principle articulated in Young, supra.
65.
Two lines of authority exist. Like in the instant case and the Ontario Court of Appeal
decision in Attis v. Ontario, 2011 ONCA 675, one line holds that the court has no right to inquire
44
R. v. Neil, [2002] 3 S.C.R. 631 at para. 12.
Capital Supreme Court
15 into the legal advice given to the client – that it is purely a matter between solicitor and client.
When a claim of privilege is made the court is to ascertain whether the negligence is attributable
to the solicitor or the client. In other words, the court is to determine whether the client has
instructed counsel to act negligently.45 66.
The other line of authority asserts that a lawyer cannot rely on client instructions as a
defence if the lawyer has acted in a manner inconsistent with the goals of the judicial system. In
such situations, he or she must decline to follow instructions that would constitute misconduct.46
67.
The BC Court of Appeal provided an elegant articulation of the principle in Henriques v.
Spraggs, 2008 BCCA 282. Applications under Rule 57(37) need not necessarily involve an
exploration of solicitor/client privilege if it is possible to determine the matter on the record. The
court writes:
If the client were instructing the lawyer to take a position that contravened the lawyer’s
obligations in the preparation of the client’s list of documents, the lawyer should resign,
not proceed to expose the client to costs by frustrating the litigation process (see Boxer v.
Reesor [citation omitted]).47
68.
Taking a different approach then the Court of Appeal in the instant case where it was
seemingly accepted that a client can instruct his or her counsel to act negligently, the BC Court of
Appeal commented on the impact of solicitor-client privilege in Nazmdeh, supra at para. 100,
“[p]olicy considerations are not necessary in construing the plain language of Rule 57(37). It is
not suggested that the Rule is ambiguous”. Instead, the court is to assess whether counsel
complied with his independent obligations as counsel. One such duty, for example, is to refrain
from admitting clearly irrelevant or inadmissible evidence, such as the Mayor of Russell’s
interview or seeking to call Mr. Galganov as an expert in Mr. Brisson’s Application. The BC
Court of Appeal held that if, at the trial at first instance, the chambers judge determines that the
lawyer failed to take positive steps to meet his obligations then a claim of solicitor-client
privilege will not suffice as a shield against costs.48
69.
The record in the instant case presents a ripe opportunity to this Honourable Court to
clarify the impact of client instructions and approval on lawyer conduct under Rule 57.07(1).
There is a pressing and unfortunate need for a reaffirmation of the shared standard of what it
means to practice law effectively, ethically and honourably. The proper administration of justice
is a matter of collective responsibility. Civility, the expedient and efficient administration of
justice and the goal of trial fairness are firmly related. 45
Attis v. Ontario, 2011 ONCA 675; Court of Appeal Decision, at para. 18; and Ford v. Hoffman La-Roche Ltd.
(2003), 126 A.C.W.S. (3d) 573 (Ont. Div. Ct.).
46
Schreiber v. Mulroney (2007), 160 A.C.W.S. (3d) 53 (Ont. S.C.J.), leave to appeal refused 161 A.C.W.S. (3d) 698
(Ont. S.C.J. (Div. Ct.), para. 30; See also Rules 2.09(7) and 4.01(1) of the Rules of Conduct of the Law Society of
Upper Canada; Guy v. Tulloch (2002), 123 A.C.W.S. (3d) 1069 (Ont. Fam. Ct.); Al-Mutter v. Al-Ekabi (2003), 41
R.F.L. (5th) 16 (Ont. S.C.J. (Fam Ct.)); Penney v. Penney (2006), 153 A.C.W.S. (3d) 305 (Ont. S.C.J.); and William
H. Simon, “Ethical Discretion in Lawyering” (1988), 101 Harv. L. Rev. 1083 at pp. 1085-1086, 1086.
47
Henriques v. Spraggs, 2008 BCCA 282 at para. 14.
48
Nazmdeh, supra at para. 100 and 110.
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16 70.
It is submitted that Rule 57.07(1) seeks to address, in part, the current crisis in
professionalism. It is crucial that such legislation be given meaningful content, for as James R.
Olchowy wrote, “the loss of professionalism among lawyers occurs when lawyers forget
society’s expectations of an efficient and effective justice system, and when layers fail to
remember that they are, first and foremost, public servants rather than warriors or hired guns.”49
71.
The issues raised in this appeal lie at the heart of this debate. They are true issues of
public and national importance. The public must have confidence in the expeditious and efficient
administration of justice and lawyers must know when their conduct will attract statutory
personal responsibility for legal costs ordered against a client. C. The Solicitor-Client Defence
i.
Rules of Professional Conduct: Justified or Permitted Disclosure
72.
Although it is true that a lawyer shall hold in strict confidence all information concerning
the business and affairs of his client acquired in the course of the professional relationship,
disclosure of information is permitted and sometimes necessary in the circumstances.
73.
Information gathered within the ambit of the professional relationship can be both
confidential and privileged. Confidentially and privilege are two distinct concepts, and the
lawyer’s obligation of confidentiality is probably wider than the rule of privilege.50
74.
Nonetheless, the disclosure of confidential information is sometimes justified, permitted
and even necessary.51
75.
Justified or permitted disclosure has been expressly addressed within the Law Society of
Upper Canada’s Rules of Professional Conduct:
Rule 2.03(4) Where it is alleged that a lawyer or a lawyer’s associates or employees are:
(a) guilty of a criminal offence involving a client’s affairs,
(b) civilly liable with respect to a matter involving the client’s affairs, or
(c) guilty of malpractice or misconduct,
a lawyer may disclose confidential information in order to defend against the
allegations, but the lawyer shall not disclose more information than is required.
[Emphasis added]
76.
This same notion of justified or permitted disclosure can also be found in other
jurisdictions.52
49
James R. Olchowy, “On the loss of civility and the need for a reinvigorated professionalism: objectionable counsel
conduct and its impact on trial fairness” 26 Advoc. Q. 322.
50
Weary v. Ramos (2005). 55 Alta. L.R. (4th) 195 (Q.B.) at para. 10.
51
Weary v. Ramos, supra at paras. 9-10.
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17 77.
The American Law Institutes Restatement of the Law Governing Lawyers (A.L.I
Publishers, 2000)53 sets out the lawyer’s duty to protect confidentiality, and provides the
following exceptions:
s. 64 Using or Disclosing Information in a Lawyer’s Self-Defence
A lawyer may use or disclose confidential client information when and to the extent that
the lawyer reasonably believes necessary to defend the lawyer or the lawyer’s associate or
agent against a charge or threatened charge by any person that the lawyer or such
associate or agent acted wrongfully in the course of representing a client.
78.
The comments on this paragraph give the following example:
Lawyer is discharged by Law Firm and files suit against it, alleging damages for wrongful
discharge. Law Firm defends on the ground that Lawyer’s work was incompetent. Law
firm may, to the extent reasonably necessary, employ confidential client information to
support its defence of incompetence in defending against Lawyer’s claim. Lawyer may, to
the extent reasonably necessary, also employ confidential client information to respond to
Law Firm’s charges of incompetence.
79.
Justified or permitted disclosure was discussed in R. v. Li (1993), 36 B.C.A.C. 181, where
the British Columbia Court of Appeal considered a situation in which a lawyer had acted for
multiple accused persons, and was then alleged to have been in a conflict of interest. The court
acknowledged the sanctity of solicitor-client privilege but noted that there are necessary limits:
The law, however, permits Mr. Brooks to defend himself against attacks upon his
character and integrity. This right extends to disclosing confidential communications from
his client if it is necessary to answer the allegations made against him.54
80.
While it is apparent that the solicitor-client relationship is of utmost importance, the spirit
and intent of the governing rules of professional conduct are useful guides in determining the
question between the competing rights of the perception of fairness and Mr. Bickley’s right to
defend himself.
81.
Lawyers are allowed and expected to disclose confidential and privileged information
when faced with civil liability situations, such as a rule 57.07 motion.55
82.
Solicitor-client privilege is fundamentally important to the administration of justice. As
no right is absolute, the privilege is not without limitations.
ii.
Abuse of Privilege
52
Law Society of Manitoba, Code of Professional Conduct, Rule 2.03(6); Canadian Bar Association, Code of
Professional Conduct, Chapter IV at para. 4.
53
Cited in Weary v. Ramos, supra at paras. 9-10. 54
R. v. Li (1993), 36 B.C.A.C. 181 at para. 50.
55
Weary v. Ramos, supra at para. 11.
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18 83.
Solicitor-client privilege allows a client to obtain legal advice from counsel without fear
that any communications and advice will be subject to disclosure to any third party, other than
with the consent of the client or as permitted by law.56
84.
The privilege belongs to the client, not the lawyer. But if we allow lawyers to shield their
negligence by raising a bald privilege defence, it endangers the very nature of the solicitor-client
relationship and the due administration of justice.
85.
Solicitor-client privilege and the duty of confidentiality are of significant importance to
the administration of justice. However, they exist to further the cause of justice, not to impede it:
They do not exist to be spouted by counsel as a cover-up for his failure to take those
simple, reasonable and common sense steps which the court is entitled to expect of
counsel in fulfilling his professional obligations to his client and his role as an officer of
the court.57
iii.
The End of Rule 57.07 Motions
86.
If a negligent lawyer raises the solicitor-client defence in the context of a Rule 57.07
motion, how may the moving party ask any questions surrounding that relationship or the alleged
instructions he received?
87.
The lawyer’s evidence cannot be tested in any meaningful fashion and should not be
considered as being unchallenged.
88.
In the present case, the Township “could not cross-examine about the instructions that
were or were not received by counsel. Nor could the court look behind the assertion that
instructions were given. To do so would jeopardize the sanctity of solicitor-client privilege.”58
89.
The defence of solicitor-client privilege or client instructions is so extensive and virtually
impermeable that should this Honourable Court accept Mr. Bickley’s argument, despite the clear
and obvious negligence on the record, it would for all intents and purposes bring an end to all
Rule 57.07 costs motions brought by opposing litigants against solicitors personally.
90.
Practically speaking, cost motions would become meaningless as soon as any solicitor
raised a bald allegation that he/she was acting upon his client’s instructions or that solicitor-client
privilege prevents him/her from fully defending himself, even if it was obvious from the record
that he/she was negligent.
91.
This was not the legislator’s intention and thus the reason why Rule 57.07 motions are
governed by Rule 2.03(4) of the Rules of Professional Conduct.
92.
Mr. Bickley’s proposed defence would protect even the most egregious conduct by a
solicitor. While the solicitor should in some instances be given the benefit of the doubt, the doubt
56
R. v. Smith (1999), 133 Man R. (2d) 89 at para. 28.
R. v. Smith, supra at paras. 53-54. 58
M. D. v. Windsor Essex, [2010] O.J. 2270 (S.C.J) at para. 81.
57
Capital Supreme Court
19 must be logical and such that a court would condone a lawyer for following the client’s
instructions.59
93.
There are various ways to confirm that a lawyer was negligent without scrutinizing the
privileged or confidential information. Further, there must be some semblance of logic and reality
to the whole situation if a solicitor is to raise such an argument.
iv.
The Authorities on the Solicitor-Client Defence
94.
The British Columbia Court of Appeal recently dealt with the solicitor-client defence in
the context of a costs order against a lawyer personally in Nazmdeh v. Ursel (2010), 3 B.C.L.R.
(5th) 277 (C.A.).
95.
Similarly to the case at bar:
i.
counsel for the lawyer contended that the lawyer could not adduce evidence
without breaching the solicitor-client privilege;60 and
ii.
counsel raised various policy-based reasons to support its defence.
96.
In Nazmdeh, Chief Justice Finch, writing for a unanimous five-member panel,
commenced his analysis by noting that Ontario’s Rule 57.07 closely parallels the equivalent
British Columbia Rule.61
97.
The Court then went on to conclude that policy decisions, such as the ones raised by Mr.
Bickley before this Honourable Court, are not necessary in construing the plain language of Rule
57.62
98.
As the rule need not necessarily involve an exploration of solicitor-client privilege, the
Court of Appeal agreed that the trial judge’s conclusions were based on the lawyer’s failure to
comply with his independent obligations as counsel in response to the interrogatories and demand
for particulars.63
99.
The Court of Appeal upheld the trial judge’s decision to award costs against the solicitor
personally, despite the existence of the solicitor-client defence.
v.
The Limits of the Client Instructions Defence
100. The Rules of Professional Conduct of each province are designed to regulate and guide a
lawyers’ interaction with clients and the justice system, while maintaining their integrity and that
of the legal profession. As stated by Lord Birkett:
59
Belanger v. McGrade Estate, supra at para. 25. 60 Nazmdeh
61
v. Ursel, supra at para. 23. Nazmdeh v. Ursel, supra at para. 81; The Manitoba Queen’s Bench made a similar comment regarding the
equivalent Manitoba Rule. See R. v. Smith, supra at para. 42.
62
Nazmdeh v. Ursel, supra at para. 100.
63
Nazmdeh v. Ursel, supra at para. 110.
Capital Supreme Court
20 The advocate has a duty to his client, a duty to the Court, and a duty to the State; but he
has above all a duty to himself and he shall be, as far as lies in his power, a man of
integrity. No profession calls for higher standards of honour and uprightness, and no
profession, perhaps, offers greater temptation to forsake them…64
101. If asked to frustrate or abuse the litigation process, a lawyer should resign before
following such instructions.65
102. For arguments sake, if we were to assume that the Applicants had effectively instructed
Mr. Bickley to cause extra costs to be incurred by the Township by behaving in a negligent
fashion, it was Mr. Bickley’s responsibility to act as a gatekeeper to the proper administration of
justice and refuse to follow such instructions or, if necessary, resign.
103. Mr. Bickley’s failure to exercise independent judgment should not permit him to avoid a
costs order. In the end, Mr. Bickley’s conduct disrupted the orderly course of justice and the
procedure throughout the entire litigation. He alone is responsible for such conduct.
vi. What Information Was Actually Confidential or Privileged?
104. Whether solicitor-client privilege exists is essentially fact driven.66 All information
received on behalf of a client in a professional capacity is prima facie confidential.
105. In the present case, the crucial question is whether or not there are procedural steps that
can and should only be attributable to the lawyer?
106. A review of the specific incidents of Mr. Bickley’s conduct upon which Justice Métivier
awarded costs against him personally confirms that the incidents of negligence are, and must be,
solely his responsibility. More specifically, Mr. Bickley could not have received, and if so
actually accepted, instructions:
i.
to be disorganized and unprepared at the hearing;
ii.
to twice omit to bring his application materials to court;
iii.
to make basic and fundamental mistakes in interpreting Rules 39 and 53 of the
Rules of Civil Procedure;
iv.
to present confusing and incomprehensible arguments at the hearing; and
v.
to raise objections without completing the research required to justify his
objection.
64
Taken from Lord Birkett’s Presidential Address to the Holdsworth Club in Birmingham. Cited in, David
Hawreluk, “The Lawyer’s Duty to Himself and the Code of Professional Conduct” (1993) 27 LSUC Gazette 119 at
121.
65
Shreiber v. Mulroney, 2007 CanLii 34441 (ON SC) at para. 30; See also Rules 2.09(7) and 4.01(1) of the Rules of
Conduct of the Law Society of Upper Canada, supra. 66
R. v. Smith, supra at para. 30.
Capital Supreme Court
21 107. The incidents of Mr. Bickley’s conduct raised by Justice Métivier are uniquely within the
purview of a lawyer’s control and decision-making authority.
108. The lawyer may consult with his/her client on such issues, but it is for counsel to
determine when and how to bring forward the litigation:
Lawyers are not to mindlessly follow the directions of those they represent. The rules of
professional conduct set down by provincial law societies, the rules of court, and more
broadly, the case law make clear that a lawyer has important duties above and beyond
those owed to a client. The representation of a client or a cause is to occur within legal
and ethical boundaries.67
D. Mr. Bickley Is Solely Responsible for his Conduct
i.
Mr. Bickley’s Conduct Meets the Threshold for a Rule 57.07(1) Order
109. Invoking the specific language of Rule 57.07, Justice Métivier acted in accordance with
the court’s statutory jurisdiction to require lawyers to pay costs personally where they have
“caused costs to be incurred without reasonable cause or to be wasted by undue delay, negligence
or other default.”68
110. Justice Métivier then proceeded to properly acknowledge and apply the two part analysis
set out in Carleton et al. v. Beaverton Hotel et al. (2009), 96 O.R. (3rd) 391 (Div. Ct.):
1.
The court must determine whether the lawyer’s conduct falls within subrule
57.07(1), in the sense of causing costs to be incurred unnecessarily; and
2.
The court must determine whether it should exercise its discretion to award
costs.69
111. Where a solicitor claims ignorance of a fundamental aspect of the Rules of Civil
Procedure, the court has exercised its discretion to order costs personally against the solicitor.70
112. In Dunford v. Hudder, the plaintiffs’ solicitor was ordered to personally pay the
defendant’s costs where “it was obvious there was little, if any, serious trial preparation done.”71
113. In the Court of Appeal’s recent substantive decision on Rule 57.07, Rand Estate, the
solicitor was “unprepared,” had numerous non-appearances and generally disregarded court
orders. This Ontario Court of Appeal confirmed that the order to pay costs was warranted.72
M.D. v. Windsor-Essex, supra at para. 82. Rule 57.07(1), Rules of Civil Procedure.
69
Carleton v. Beaverton Hotel, [2009] O.J. No. 2409 (Div. Ct.) at para. 21.
70
Worsley Estate v. Lichong (1994), 17 O.R. (3d) 615 (Gen. Div.) at pp. 620-621.
71
Dunford v. Hudder, [1997] O.J. No. 4832 (Gen. Div.) at paras 38-41.
72
Rand Estate v. Lenton, 2009 ONCA 251 at para. 6.
67
68
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22 114. In summary, Mr. Bickley’s repeated misconstruing of the applicable rules and his lack of
any serious court preparation resulted in an unnecessary waste of time and undue delays for both
parties and the Court, thereby leading to costs being incurred unreasonably.73
ii.
Justice Métivier’s Findings of Fact
115. When a lawyer claims that he/she was following client instructions, a review of the record
and first hand evidence are necessary to determine the validity of that allegation.
116. It was obvious to all that Mr. Bickley was ill-prepared and consequently negligent before
and during the hearing of the applications. During four (4) days of hearing, Justice Métivier was a
witness to Mr. Bickley’s negligence.
117. Justice Métivier was clear and unequivocal in stating that overall “time was wasted during
the hearing, but very significant costs were incurred by the respondent as a result of various
positions taken by Mr. Bickley, by his lack of preparation, which in some cases amounted to
negligence.”74
118. All of the findings against Mr. Bickley that led to the costs order are solely attributable to
Mr. Bickley, being uniquely within the purview of a lawyer’s decision-making authority in a
litigation matter and for which he should be held personally liable.
1. Mr. Bickley wrongly invoked Rule 39 to attempt to convert the applications into a
trial
119. During the hearing, Mr. Bickley informed Justice Métivier that he wanted to move to
have the applications converted into a trial as he was contesting the facts in the affidavits of Dr.
Castonguay and Dr. Breton.
120. Mr. Bickley referred to “Rule 39.5,” which does not exist, and failed to refer to any case
law or authority to support this unsuccessful attempt to convert the applications into a trial.75
121. When asked by Justice Métivier which facts he was contesting in light of Rule 39, Mr.
Bickley simply stated that the totality of the facts was being contested.76
122. Justice Métivier found as a fact that Mr. Bickley’s “erroneous interpretation of Rule 39
wasted some time during the hearing as that was debated, but more importantly, time and money
had been wasted by the Township in preparing for argument.”77
123. A question of law is definitely within the lawyer’s decision-making authority and Mr.
Bickley is solely responsible for his negligent interpretation of the Rules of Civil Procedure.
124. In these circumstances, Justice Métivier’s finding of fact was not plainly wrong.
73
Decision on Costs, supra at paras. 85 & 90. 74
Decision on Costs, supra at para. 90.
Sauvé Affidavit.
76
Sauvé Affidavit.
77
Decision on Costs, supra at para. 84(6).
75
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23 2. Mr. Bickley breached the Rules by preparing and filing affidavits after his client
affiants had been cross-examined
125. On March 5th, 2010, the Applicants’ proposed expert witnesses, Galganov and Conrad
Winn, were cross-examined by the Township’s counsel.
126. On March 9th, 2010, Mr. Bickley served the Township with supplementary affidavits from
both witnesses dated March 5th, 2010, without seeking leave to do so, thus acting contrary to the
Rules of Civil Procedure.78
127. Justice Métivier found as a fact that Mr. Bickley had prepared and filed “the affidavits
after his clients affiants had been cross-examined [which] resulted in a breach of procedure that
was indicative of negligence, at least.”79
128.
This breach of the Rules of Civil Procedure must rest with counsel, not the clients.
129.
In these circumstances, Justice Métivier’s finding of fact was not plainly wrong.
3. Mr. Bickley wrongly changed his position numerous times regarding the
examination of a third party
130. On March 23rd, 2009, Mr. Bickley alleged that the Township had failed to disclose a
considerable amount of documentation and that the Township ought to produce the totality of its
documentation through an affidavit from Mayor Ken Hill [“Mayor Hill”].80
131. The Township proposed to produce the documents through and affidavit from the
Municipal Clerk. This proposal was refused by Mr. Bickley, who insisted that Mayor Hill swear
the affidavit.81 Mr. Hill did not swear an affidavit in the proceedings and was thus considered to
be a third party.
132. On March 9th, 2010, Mr. Bickley served the Township with a Notice of Intention to call
Ken Hill as a witness [“summons to witness”] to allegedly examine Mayor Hill during the actual
hearing of the Applications.82
133. The Township informed Mr. Bickley that Mayor Hill was available to be cross-examined
“out-of-court” before the hearing.83
134. Mr. Bickley did not accept the Township’s offer to have Mayor Hill cross-examined outof-court. After repeated attempts to force Mayor Hill to testify over the course of a year, Mr.
78
Sauvé Affidavit. 79
Decision on Costs, supra at para. 84(4).
Sauvé Affidavit.
81
Sauvé Affidavit.
82
Sauvé Affidavit.
83
Sauvé Affidavit.
80
Capital Supreme Court
24 Bickley notified the Township in a letter dated March 19th, 2010, that he “had changed his
mind”84 and would not be insisting on cross-examining Mayor Hill at the hearing.
135. The Township had already undertaken research and prepared a draft factum and affidavit
in order to object to the cross-examination of Mayor Hill at the actual hearing.85
136. Incredibly, only a few days later, Mr. Bickley sent another letter to the Township in which
he contradicted this revocation of the summons and claimed no knowledge of his March 19th
letter.86
137. On April 22nd, 2010, Mr. Bickley finally agreed to drop the summons of Mayor Hill once
and for all. Showing his lack of regard for causing undue delay, Mr. Bickley admitted outright
that he was “not overly concerned with saving the Court’s time.”87
138. Justice Métivier found as a fact that the “to-ing and fro-ing over the cross-examination of
Mayor Hill” was a prime example of how Mr. Bickley “directly and negligently caused
additional costs to be incurred.”88
139. Justice Métivier reviewed the evidence on the record, including the various letters drafted
by Mr. Bickley himself, without having to breach the solicitor-client privilege. The record
showed very clearly that the procedural steps were undertaken by Mr. Bickley and those steps
were completely within the ambit of his discretion.
140. In these circumstances, Justices Métivier’s finding of fact was not plainly wrong nor did
she err in principle by not separating the conduct of Mr. Bickley from that of his clients.
4. Mr. Bickley circumvented the rules of evidence and surreptitiously attempted to
enter new evidence on the eve of the hearing
141. Justice Métivier found that “additional preparation” was required when Mr. Bickley
wrongly attempted to introduce an article after cross-examinations were completed in an attempt
to discredit Dr. Castonguay, one of the Township’s experts.89
142. In light of this belated attempt to enter evidence, it was necessary for the Township to
retain their expert, Dr. Castonguay, to review the document and advise the Township of its
potential relevance. The Township was also forced to incur additional costs in legal research and
preparing supplementary expert affidavits to respond to the arguments put forward by Mr.
Bickley based on this article.90
84
Decision on Costs, supra at para. 46(7).
Sauvé Affidavit.
86
Sauvé Affidavit. 87
Sauvé Affidavit.
88
Decision on Costs, supra at para. 93.
89
Decision on Costs, supra at para. 84(5).
90
Sauvé Affidavit.
85
Capital Supreme Court
25 143. Similarly, Mr. Bickley improperly tried to file a “Book of Articles” which contained
materials that should have been entered through an affidavit, thereby permitting the Township to
file responding materials and possibly proceeded to cross-examine a witness on the issue.91
144. The service and filing of materials forms part of the various procedural responsibilities of
a solicitor. Consequently, Mr. Bickley was found to be wholly responsible for the costs that were
wasted by his improper service and filing of such documents.
145.
In these circumstances, Justice Métivier’s finding of fact was not plainly wrong.
5. Mr. Bickley wrongfully proposed his own client as an “expert” witness
146. The parties agreed that the Applications were to be “heard together” and that the
Application Judge, when hearing the applications, could take evidence from one application as
evidence in the other application.92 Both applications were, for all intents and purposes, identical,
almost word for word, as each raised the exact same issues.
147. Mr. Bickley subsequently submitted affidavit evidence from Galganov, the Applicant, in
which he alleged that his own client was an “expert” in socio-linguistic rights.93
148. Mr. Galganov was not an expert and was obviously biased. Mr. Bickley nevertheless
made light of the litigation process by proceeding to file the so-called expert evidence in the
parallel Brisson application, thus wasting the Township and the Courts time.94
149. Justice Métivier found as a fact that “the decision to propose on applicant, Mr. Galganov,
as an expert witness in the application of Mr. Brisson caused extra costs to be incurred for crossexamination, etc.”95
150. In his affidavit, Mr. Bickley states that he chose to file Galganov’s affidavit as an expert:
“I proceeded to have Mr. Galganov provide expert evidence for use in Mr. Brisson’s
application.”96
151. Mr. Bickley cannot claim in this appeal that he was following his clients’ instructions
when his own evidence is to the contrary.
152.
In these circumstances, Justice Métivier’s finding of fact was not plainly wrong.
6. Mr. Bickley’s lack of preparation
153. Justice Métivier determined as a fact that “much of the arguments and submissions of Mr.
Bickley were confusing and occasionally incomprehensible” and cited specific instances from the
91
Sauvé Affidavit. 92
Sauvé Affidavit.
Sauvé Affidavit.
94
Bickley Affidavit.
95
Decision on Costs, supra at para. 84(3).
96
Bickley Affidavit.
93
Capital Supreme Court
26 transcripts to illustrate her point.97 She concluded by saying that “at the end of his presentation
[she] understood little of his client’s cases or more importantly, his arguments of the law.”98
154. Justice Métivier determined that “it was evident that there had been little if any serious
preparation.”99 Of note, Mr. Bickley had difficulty referring to the precise excerpts of case law he
wanted to rely upon in furtherance of his argument. It was evident that, before making his
submissions at the hearing, he had never even looked at what he claimed was a jointly prepared
book of authorities.100
155. His confusion continued during the hearing as he criticized the Township’s legal counsel
for having only included within the Township’s compendium the portions of the evidence and
case law that the Township intended to rely on in their argument.101
156. Also, on two separate occasions, Mr. Bickley omitted to bring copies of some of his
application materials with him to court102 and outright admitted that he had not “done the
research” before objecting to a non-contentious affidavit.103
157. Although Justice Métivier found that Mr. Bickley’s “disorganized manner of presenting
his argument, together with his inability to find materials, did not add costs,”104 she did find that
his overall “lack of preparation” and “various positions” did cause extra costs to be incurred by
the Township.105
iii.
The Cost Award Was Discretionary
158. Having determined that Mr. Bickley’s conduct fell within the purview of Rule 57.07106,
Justice Métivier exercised her discretion to award costs against Mr. Bickley personally.107
159. By the very nature of the two-pronged test, which explicitly requires the exercise of
discretion, Justice Métivier’s award of costs against Mr. Bickley attracts a high deferential
standard of review.108
160. In all the circumstances, it was therefore appropriate – and clearly not “plainly wrong” –
for Justice Métivier to award costs against Mr. Bickley.
iv.
The Quantum of the Award Was Appropriate
97
Decision on Costs, supra at paras. 85-87.
Decision on Costs, supra at para. 85.
99
Decision on Costs, supra at para. 85.
100
Sauvé Affidavit.
101
Sauvé Affidavit.
102
Sauvé Affidavit.
103
Decision on Costs, supra at para. 88.
104
Decision on Costs, supra at para. 84.
105
Decision on Costs, supra at para. 90.
106
Decision on Costs, supra at para. 84-90.
107
Decision on Costs, supra at para. 90.
108
Boucher v. Public Accountants Council for the Province of Ontario (2004), 71 O.R. (3d) 291 (C.A.) at para. 19. 98
Capital Supreme Court
27 161. Justice Métivier did not make an award on an elevated scale as against the Applicants,
contrary to what is alleged by Mr. Bickley.
162. Justice Métivier awarded less than partial indemnity costs to the Township in the amount
of $180,000 against the applicants, being 51% of the actual costs incurred. The actual partial
indemnity costs claimed by the Township were $230,492.27.109
163. Justice Métivier’s cost order as against Mr. Bickley is especially reasonable when one
considers that previous courts have awarded partial indemnity costs110 or even substantial
indemnity costs111 to be paid by the solicitor personally, for negligence that could rightfully be
considered less wide ranging and egregious than the present case.
164. By forcing the Township to incur costs in preparing additional factums and affidavits,
attending cross-examinations, conducting electronic research and hiring experts to respond to Mr.
Bickley’s unfounded objections and late filings, the Township did have to incur additional
disbursements as a result of Mr. Bickley’s negligence.112
165. As Mr. Bickley’s conduct amounted to a “moving target,” a precise accounting was not
possible and Justice Métivier was correct in awarding a percentage of the costs against him.113
v.
There Is No Confusion: Mr. Bickley Was Responsible for his Conduct
166. The Township raised a number of issues against Mr. Bickley and the Applicants.
However, Justice Métivier based her decision to award costs against Mr. Bickley personally
further to specific incidents where she found that Mr. Bickley was the sole cause for the
additional costs.114
167. In Rand Estate, the appellant took aim at the findings of fact made by the application
judge. The Ontario Court of Appeal confirmed that the trial judge’s decision to award costs
against the solicitor personally should not be overturned unless the findings were clearly in error
and clearly material to the ultimate determination.115
168. The Court was of the view that even if those specific findings were reversed, it would
only make a small adjustment of the factual backdrop and should not change the result of the
application judge’s decision.
169. Similar to the Rand Estate case, Mr. Bickley is taking aim at various findings of fact
made by Justice Métivier in her analysis for the cost order against him. Although certain issues
were brought up in both cost analysis, a careful review of Justice Métivier’s decision against Mr.
109
Decision on Costs, supra at para. 9.
Worsley Estate v. Lichong, supra.
111
Rand Estate, supra at para. 19; Standard Life Assurance Co. v. Elliot (2007), 86 O.R. (3d) 221 (S.C.J.) at para. 33.
112
Decision on Costs, supra at paras. 68 & 84.
113
Decision on Costs, supra at para. 93; See also Schreiber v. Mulroney, [2007] O.J. No. 3191 (S.C.J.), at para. 43,
where the court awarded 25% of the costs to be payable by the solicitor; See also Baryluk (c.o.b. Wyrd Sisters) v.
Campbelle, [2009] O.J. No. 2773 (S.C.J.), at para. 18, where the court awarded 50% of the costs to be payable by the
solicitor.
114
Carleton et al. v. Beaverton Hotel et al., supra at para. 18.
115
Rand Estate, supra at para. 2. 110
Capital Supreme Court
28 Bickley confirms only four incidents were actually discussed and considered by Justice Métivier
in bother her analysis against Mr. Bickley and the Applicants:
i.
The qualifying of Galganov and Winn as experts;
ii.
Wrongly alleging that expert witnesses had not complied with Rule 53;
iii.
The various positions regarding the Mayor Hill cross-examination; and
iv.
Objecting to the Township’s compendium.
170. Qualifying experts, interpreting the Rules of Civil Procedure and objecting to materials
are clearly within the purview of the lawyer’s authority. As for the incident with Mayor Hill, for
the reasons above, and based on the clear language used by Justice Métivier as well as the
evidence on the record, it is quite obvious that she attributed this incident to Mr. Bickley.
171. Justice Métivier’s decision to award costs against the solicitor personally should not be
overturned unless her findings were clearly in error and clearly material to the ultimate
determination. The issues listed above are but some of the reasons that compelled Justice
Métivier to award costs against the solicitor personally and her decision should be upheld.
E. Young v. Young Revisited
172. In the Appellant’s respectful submissions, Young v. Young was decided by this Court
some 20 years ago. The Canadian legal landscape has changed, giving rise to what has been
described as a crisis in professionalism and increasing barriers to access to justice. The Chief
Justice of Canada noted in her remarks presented at the Empire Club of Canada, Toronto, March
8, 2007, that, “[u]nfortunately, many Canadian men and women find themselves unable, mainly
for financial reasons, to access the Canadian justice system.” They simply do not have the funds
necessary to seek legal representation: “[t]he result may be injustice.”116
173. Litigants and the administration of justice are under increasing cost pressures. Access to
justice is threatened if the system is to bear the incremental costs caused unnecessarily by the
negligent or improper conduct of counsel. It would be appropriate and in the national and public
interest to consider whether the cumulative negligent conduct of counsel in this case merits
compensation by way of a cost award, for recall of the Application Judge’s findings:
i)
“Mr. Bickley directly and negligently caused additional costs to be incurred”;
ii)
“Much of the arguments and submissions of Mr. Bickley were confusing and
occasionally incomprehensible”;
iii)
“It was evident that there had been little if any serious preparation”;
iv)
Mr. Bickley’s “breach of procedure was indicative of negligence, at least”; and
116
Remarks of the Right Honourable Beverley McLachlin, P.C., Presented at the Empire Club of Canada, Toronto,
March 8, 2007.
Capital Supreme Court
v)
29 Overall, “time was wasted during the hearing, but very significant costs were
incurred by the respondent as a result of various positions taken by Mr. Bickley,
by his lack of preparation, which in some cases amounted to negligence.”117
174. In the respectful submission of the Appellant, the Applicant Judge should have been given
the authority to award costs against the solicitor in such circumstances. For as Justice Métivier
rightly noted, “Courtroom litigation has its own mood and atmosphere, which cannot always be
accurately reflected.”
175. If the Court of Appeal is found to have articulated and applied the standard correctly, a
mixed question of fact and law, the Appellant submits that the Court of Appeal failed to consider
whether the cumulative negligent and wasteful conduct of counsel, as found by the Application
Judge and accepted on appeal, amounted to reprehensible conduct, assuming the common law
standard enunciated in Young v. Young, [1993] 4 S.C.R. applies in the statutory context.
PART V - NATURE OF ORDER SOUGHT
176.
It is respectfully submitted that this Honourable Court makes an order:
i)
Allowing the appeal therein restoring the Application Judge’s decision on costs;
ii)
Awarding costs of this appeal to the Township; and
iii)
Such further and other Order as this Honourable Court deems just.
ALL OF WHICH IS RESPECTFULLY SUBMITTED THIS 20TH DAY OF OCTOBER, 2013
117
Decision on Costs, paras. 84-85, 90 & 93.