Legal Aid

The applicants, charged with drug and firearm offences, sought an order under the Criminal Code and Charter to access $186,269 seized during their arrest to pay for reasonable legal expenses.

The Crown opposed, arguing a third party had an interest in the funds and that the applicants had not been refused Legal Aid.

The court granted the application, finding the applicants established a possessory interest, demonstrated no other person had a valid claim (as the co-accused had absconded), and that applying for Legal Aid would be futile given the circumstances and complexity of the case.

The court also found the proposed legal fees reasonable for senior counsel.

This endorsement addresses the applicant mother's delayed costs submissions for a prior motion where she was largely successful.

The court found the mother was entitled to costs for the previous motion, particularly for a private investigator's disbursement incurred due to the respondent father's misrepresentation of his employment status.

Despite the mother's significant delay (over six months) in filing costs submissions and failing to raise the issue at subsequent court appearances, the court exercised its discretion to award costs for disbursements to ensure justice, but disallowed legal fees due to the delay.

The father was ordered to pay $5,650 for disbursements and HST.

The applicant, charged with aggravated assault, sought a Rowbotham order for state-funded counsel, arguing his right to a fair trial would be compromised without representation.

His legal aid certificate was cancelled after he received an inheritance, which he subsequently spent.

The court found that legal representation was essential given the complexity of the case and the serious charge.

However, the application was deemed premature because the applicant failed to exhaust all legal aid appeals and did not provide sufficient evidence of indigence regarding family loans.

The application was adjourned to allow the applicant to complete the legal aid appeal process and provide further financial evidence.

The applicant, Sharon Cayuga, brought a Rowbotham application seeking a conditional stay of criminal proceedings pending the Attorney General funding defence counsel at legal aid rates.

The court found the application premature because the applicant had not completed the prerequisite steps of formally applying for Legal Aid, being refused, and exhausting all appeals for reconsideration of eligibility.

The application was adjourned, and the conditional stay extended for 30 days, contingent on the applicant taking the appropriate steps with Legal Aid.

This endorsement addresses issues arising from a trial management conference in a criminal proceeding.

Key points included a discussion regarding the appointment of counsel for one accused, Stephen Richard Parr, who has a Legal Aid certificate but is seeking counsel on the LAO panel.

The court also directed the Crown to file its discreditable conduct application and ordered all counsel to file summaries of their intended pre-trial applications by March 29, 2024.

The judge expressed concern about the efficiency of virtual attendances and indicated a consideration for ordering future trial management conferences to be held in person.

The accused, Hassan Hassan, applied for a stay of proceedings pending the appointment of state-funded counsel (a Rowbotham order) for his trial on charges of extortion and aggravated assault.

Legal Aid Ontario had denied funding.

The court dismissed the application, finding that the applicant failed to establish both that he lacked the financial means to employ counsel and that he required counsel to ensure a fair trial.

The court found the applicant's testimony regarding his financial situation not credible due to incomplete disclosure and inconsistent statements about his bank accounts.

The applicant, Menna Nasr, sought an order for state-funded counsel (a Rowbotham order) after being denied legal aid and exhausting all available remedies.

She faced serious criminal charges in two jurisdictions, including dangerous driving, flight from police, and impaired operation, with potential for significant jail time.

The court applied the three-part Rowbotham test, finding that Nasr was financially unable to retain private counsel and that counsel was essential for her to receive a fair trial, given the seriousness and complexity of the charges, the voluminous disclosure, the number of witnesses, and her significant mental health diagnoses affecting her ability to participate meaningfully in her defence.

The application was granted, with a requirement for the applicant to contribute $2000 towards her counsel's funding.

This costs endorsement followed a two-day trial where the applicant mother sought supervised parenting time with her children, and the respondent father sought non-contact orders.

The court at trial denied the mother's request for parenting time and granted the father's non-contact orders, with the mother receiving only limited information about the children.

The father sought $19,045 in costs, while the mother requested nominal costs.

The court found the father to be the successful party and awarded him $8,500 in costs, inclusive of fees, disbursements, and HST.

Payment of these costs was suspended until the earliest of the mother obtaining employment, receiving Ontario Disability Support Payments (ODSP), or being released from CAMH, acknowledging her current detention and limited financial resources.

The accused, facing charges of assault and sexual assault, brought a motion for a Rowbotham order, seeking state-funded counsel.

The court found that Legal Aid had refused his application and that he lacked the financial means to retain counsel, despite earning too much to qualify for Legal Aid.

Crucially, the court determined that representation by counsel was essential for the accused to receive a fair trial, given his limited education, lack of litigation experience, and poor oral communication skills, which would hinder his ability to make full answer and defence in an eight-day jury trial.

The court ordered a stay of proceedings unless the Ministry of the Attorney General arranged for counsel.

Cory Trunks applied under the Criminal Code for access to $167,000 in seized cash to cover his legal expenses for defence against charges including drug trafficking and possession of proceeds of crime.

The Crown opposed the application, arguing that Trunks had other available means.

The court found that while Trunks had an interest in the funds, he failed to demonstrate that he had no other assets or means, specifically noting that he had been granted Legal Aid.

The application was dismissed, as the availability of state-funded legal assistance meant Trunks was not in the narrow category of accused persons needing access to potentially forfeited funds.

This is a costs endorsement following a parenting and grandparent contact trial.

The respondent, Brittney Trovao, was successful at trial and sought costs against the applicants, Nemanja Grujicic and Georgina Grujicic.

The court found Georgina Grujicic to be the driving force behind the litigation and ordered her to pay $50,000.00 in costs to Brittney Trovao, inclusive of HST and disbursements.

The court considered the principles of reasonableness and proportionality, Brittney's success, Georgina's unreasonable conduct (though not bad faith), and Georgina's ability to pay, allowing for installment payments.

No costs were ordered against Nemanja Grujicic.

The accused, Carolyn Burden, brought a Rowbotham application for state-funded counsel after Legal Aid denied her request for a change of solicitor and dismissed her appeal.

The Crown opposed the application.

The court dismissed the application, finding that Burden failed to prove indigence and that her right to a fair trial would not be materially compromised if she proceeded unrepresented, given her education and financial background.

The applicant (mother) sought costs of $15,000 after a successful two-day trial concerning parenting and support arrangements.

The respondent (father) requested no costs or a fixed amount of $2,000.

The court found the mother to be the more successful party, despite some divided success on issues and her failure to make a parenting offer to settle.

The father's conduct was deemed unreasonable due to his failure to provide complete and timely financial disclosure, disregard of court orders, and attempts to intimidate the mother.

The court awarded the mother $11,521 in costs, payable by the father over three years, subject to his ongoing support and costs payments.

The court declined to order costs paid directly to Legal Aid Ontario, affirming that legally aided clients stand in the same position as other litigants regarding costs.

This endorsement addresses the costs arising from Ms. Kabir's successful motion to dismiss Mr. Kalair's two motions to change prior consent orders (2013 and 2019) and his motion to have her found in contempt.

The court allowed Ms. Kabir's motion and dismissed Mr. Kalair's motions.

The parties were unable to agree on costs.

The court applied principles from the Family Law Rules, emphasizing proportionality and reasonableness of conduct.

Mr. Kalair's repeated failure to provide financial disclosure and his unreasonable refusal of Ms. Kabir's settlement offer were key factors.

The court also affirmed that Ms. Kabir's Legal Aid certificate did not limit the costs recoverable to Legal Aid rates.

Ms. Kabir was awarded costs of $28,116.66 on a full recovery basis.

The applicant, Shaun Rootenberg, sought an order for the appointment of counsel under s. 684(1) of the Criminal Code for his appeal, having exhausted legal aid options.

The Crown opposed, arguing the appeal lacked arguable merit and counsel was not necessary.

The court found that while the proposed grounds of appeal were weak, they were arguable for the purpose of the application.

Specifically, the second and third grounds, concerning the legal implications of strip searches during pre-trial custody and sentencing credits, involved significant and novel legal components, making the appointment of counsel necessary for a fair and effective appellate review.

The application for the appointment of counsel to advance all three grounds of appeal was granted.

The applicant, Dexter Griffith, sought an order under s. 684 of the Criminal Code for the appointment of counsel to assist with his conviction appeal, having been denied legal aid due to perceived lack of merit.

The Crown opposed the application.

The court granted the application, finding that the appeal presented arguable grounds, specifically regarding the validity of a search warrant based on the Information to Obtain (ITO) and the permissible amplification of the ITO.

The court also determined that counsel was necessary given the complexity of the legal issues and the applicant's cognitive limitations following a traumatic brain injury.

The applicant, convicted of sexual assault and sentenced to 18 months' custody, sought an order under s. 684 of the Criminal Code for government-funded legal counsel for his appeal, after Legal Aid Ontario refused coverage.

The court found the applicant lacked sufficient means but was not persuaded that it was in the interests of justice to order legal assistance.

The judge reasoned that the appeal issues were relatively straightforward and could be fairly and properly dealt with by the court on an inmate appeal, despite the applicant's learning disability and challenges with reading comprehension and communication.

The application was dismissed.

This decision addresses a costs award following a successful motion for temporary spousal support.

The applicant mother sought partial recovery costs of $12,500, while the respondent father argued for no costs.

The court found the mother to be the successful party, noting her settlement offer was closer to the final order than the father's.

The court dismissed the father's argument that the mother's legal aid funding disentitled her to costs, affirming that legally aided persons stand in the same position as other litigants.

The court also determined that the father's pre-litigation conduct, while unreasonable, did not constitute "bad faith" for the purpose of full costs recovery.

Considering the reasonableness and proportionality of the costs sought, the court awarded the mother $7,000 in costs, inclusive of disbursements and HST, payable monthly.

The Applicant sought costs following the Respondent's successful motion to set aside an ex parte temporary order.

The court found the Applicant guilty of bad faith conduct due to material misrepresentations made to the court and unreasonable behaviour, including false allegations of abuse and non-disclosure.

Despite the Respondent's offer to settle not strictly complying with Rule 18(14), it was considered a bona fide attempt at compromise under Rule 18(16).

The Applicant's financial hardship was not considered a mitigating factor given the finding of bad faith and similar modest means of both parties.

The court awarded the Respondent full recovery costs of $8,300, payable forthwith.

The applicant sought an order under ss. 462.34(1) and 462.34(4) of the Criminal Code for the return of $99,475 in seized Canadian currency to cover reasonable legal expenses.

The primary issue was whether the applicant was required to apply for Legal Aid funding as a prerequisite.

The court, informed by R. v. Rafilovich, found that requiring a Legal Aid application would conflict with the statutory objectives of providing access to counsel and upholding the presumption of innocence, especially given the applicant's desire for counsel of choice.

The court was satisfied that the applicant had an interest in the seized property and no other available assets or means.

The application for the return of funds for legal expenses was granted, with the reasonableness of the expenses to be determined at a subsequent in camera hearing.