Court of Appeal for Ontario

Date: September 12, 2017 Docket: C62517 Judges: Feldman, Gillese, Pepall JJ.A.

Parties

Between

Melinda Morwald-Benevides Applicant (Respondent)

and

Jeffrey Mark Benevides Respondent (Respondent)

Counsel

For the appellant non-party Crown: Chantelle Blom

Appearing as amicus curiae: Bonnie C. Oldham

Appearing as amicus curiae: D. Andrew Thomson

Heard: January 30, 2017

On appeal from: The order of Justice Edward J. Koke of the Superior Court of Justice, dated May 30, 2016.

Decision

Feldman J.A.:

INTRODUCTION

[1] In a "fractious", "toxic", and "complex" custody and access trial in the Ontario Court of Justice between two eventually unrepresented parties fighting over their children, the trial judge appointed an amicus on behalf of each party to assist the court.

[2] The Attorney General's challenge to the amicus appointment was rejected by the trial judge. The Attorney General then appealed that ruling to the Superior Court. The appeal judge determined that he required the assistance of amicus to resolve the issues raised on appeal, and appointed the same two lawyers who had served as amicus at trial.

[3] The two lawyers appointed by the appeal judge were not prepared to accept legal aid rates to act as amicus on the appeal. They wanted to negotiate rates with the Attorney General. The Attorney General was not prepared to negotiate, and instead provided the court with a list of three highly qualified counsel who were prepared to assist the court and to accept legal aid rates.

[4] The appeal judge determined that he required the two lawyers who were already fully familiar with the case to assist the court, and ordered a stay of the appeal until the amici and the Attorney General negotiated a mutually acceptable rate of compensation, or pursuant to a further order of the court.

[5] It is the propriety of the appeal judge's appointment of the two amici to assist him, and his decision to stay the appeal, that are the subjects of the appeal before this court.

[6] The responding amici submit that the appeal judge's decision to impose a stay is consistent with Ontario v. Criminal Lawyers' Association of Ontario, 2013 SCC 43, [2013] 3 S.C.R. 3, and that that judgment obliges the Attorney General to negotiate compensation rates in good faith with court-appointed amicus, failing which, courts may be entitled to impose a stay of proceedings. The appellant Crown disagrees, contending that Criminal Lawyers' Association neither requires the Attorney General to negotiate in good faith with court-appointed amicus, nor does it permit a court to impose a stay conditional on such negotiations taking place. A stay, in the Crown's submission, is only appropriate when the appointment of amicus is "truly essential" and a qualified amicus cannot be found.

[7] I agree with the Crown's interpretation of Criminal Lawyers' Association. For the reasons that follow, I would allow the appeal and set aside the appeal judge's order.

FACTUAL BACKGROUND

(a) The underlying custody and access litigation

[8] Melinda Morwald-Benevides (the "wife") and Jeffrey Benevides (the "husband") were involved in fractious and complex litigation, lasting 23 days, before Keast J. of the Ontario Court of Justice, over custody and access of their three children – ages 14, 13, and 8. The husband, a resident and citizen of Bermuda, alleged parental alienation and requested access in Bermuda. The wife alleged domestic violence. Complex child support issues arose. The wife asked the court to explore integrating the courts in Bermuda and Ontario. She did not want to give evidence with her husband in the courtroom. The wife dismissed five lawyers prior to trial, which Keast J. interpreted as an effort to delay proceedings. On April 11, 2014, the first day of trial, the wife was self-represented and her emotional state bordered on hysterical. She collapsed in the courtroom and an ambulance took her to hospital.

(b) The trial judge appointed amicus for the wife

[9] Keast J. found that the wife was incapable of representing herself and sought to stabilize the proceedings in a situation of alleged domestic abuse. He appointed Mr. Andrew Thomson amicus, at legal aid rates, and rejected the wife's request for an adjournment due to her medical situation. The Attorney General was not given notice of Keast J.'s intent to appoint amicus.

(c) The trial judge appointed amicus for the husband

[10] The husband was initially represented at trial by Ms. Bonnie Oldham, a well-respected member of the local Parry Sound bar. On June 11, 2014, Ms. Oldham brought a motion to be removed from the record. Ms. Oldham's accounts were in substantial arrears and there was no reasonable prospect of payment. The court had recently ordered a psychological assessment – which the husband opposed – lengthening the trial and increasing Ms. Oldham's expected fees.

[11] Keast J. found that Ms. Oldham had a sound basis for asking to be removed as counsel of record. However, allowing her off the record would greatly destabilize the trial, particularly because the husband was a foreign resident without the financial resources to retain another lawyer, but whose income was too high to qualify for legal aid. To avoid an imbalance due to his amicus appointment for the wife, Keast J. decided to appoint Ms. Oldham as amicus for the husband. Again, the Attorney General was not given notice of the appointment.

(d) The Attorney General's motion to set aside the amicus orders was denied

[12] The Attorney General brought an intervener motion before Keast J., to set aside the two amicus orders. Keast J. reserved his decision until the completion of trial and then dismissed the Attorney General's motion. Following the trial, Keast J. made two custody and access orders, dated January 29 and May 2, 2016. Those decisions are under appeal by the wife to the Superior Court.

(e) The Attorney General appealed to the Superior Court of Justice

[13] The Attorney General appealed from the dismissal of its intervenor motion to the Superior Court of Justice, on the ground that Keast J. had exceeded his jurisdiction in appointing amici to act as counsel for parties to the proceeding and in requiring the Crown to fund those amici.

(f) The wife indicated her intent to intervene in the Attorney General's appeal

[14] The wife indicated her intent to intervene in the Attorney General's appeal arguing that Mr. Thomson's appointment as amicus breached her rights to procedural fairness and s. 7 of the Charter. The Chair of the Family Lawyers' Association of Ontario also indicated that the organization was considering whether to seek leave to intervene.

(g) The appeal judge appointed Mr. Thomson and Ms. Oldham as amici

[15] The Attorney General's appeal was scheduled to be heard before Koke J. By endorsement dated November 23, 2015, he appointed Mr. Thomson and Ms. Oldham to act as amici on the appeal, and invited the parties to schedule a hearing if they wished to make submissions about the appointments.

[16] In his endorsement, Koke J. provided three reasons for selecting Mr. Thomson and Ms. Oldham as amici on appeal: their experience, their familiarity with the factual matrix underlying the appeal, and their independence from the Attorney General's office. He also noted that the named parties no longer needed to respond to the appeal, and expressed concern that absent an amicus appointment, the court would "not have the benefit of responding submissions" on an appeal raising significant and complex jurisdictional and constitutional questions.

[17] Koke J. then commented on the process for setting remuneration rates for the amici. He emphasized that, according to Criminal Lawyers' Association, the amici and the Attorney General should meet to set rates and modes of payment. While judges could only play a persuasive role in setting the rate of remuneration, they retained authority to impose a stay of proceedings in the event that an amicable resolution was not forthcoming (at para. 20). Koke J. also held that Criminal Lawyers' Association "implied" that "the rate of compensation be reasonable" (at para. 22). He noted a variety of factors relevant to determining reasonableness; the legal aid rate was only a reference point because "the court should not be placed in the same category as an impecunious party" (at paras. 23-24). In complex jurisprudential cases, the rate must not be so low as to prevent the court from selecting the most appropriate candidates (at para. 24). Given that the Attorney General was both the moving party and being called upon to fund amici responding to the motion, Koke J. warned that the failure to set a reasonable rate could undermine public confidence in the administration of justice (at para. 25).

(h) The Attorney General moved to set aside the amicus orders

[18] The Attorney General moved before Koke J. to have the amicus orders for the appeal set aside. In its motion record, the Attorney General identified three senior members of the bar with appellate experience – Sandra Meyrick, Anthony Macri and Charlotte Murray – who were willing to act as amici at legal aid rates.

(i) Written Correspondence between the Attorney General, amici & Koke J.

[19] The Attorney General offered Mr. Thomson and Ms. Oldham compensation at legal aid rates. The amici, however, were only prepared to act at higher, though discounted, rates. Mr. Thomson informed Koke J. of the impasse and requested that the court mediate the issue. Koke J. felt that he could not mediate the issue without the parties' consent. Instead, he advised that he would impose a stay of the appeal unless the fee issue was resolved by April 27, 2016. He also expressed concern that the Attorney General was in a conflict of interest with respect to the fee issue, and indicated that he would "not accept a situation where one party to a dispute seeks to unfairly gain an advantage, or where the quality of the submissions before me in what is a very significant case may be compromised."

[20] The Attorney General asked Koke J. to appoint different amici who would accept rates agreeable to the Attorney General. Koke J. refused, stating in his response that the Attorney General was obliged to "attempt to negotiate a mutually acceptable rate in good faith," and that Fish J., writing for the minority in Criminal Lawyers' Association, foresaw the very circumstances that had now arisen before him, prompting the majority to require negotiation of the fee. The Attorney General then requested an opportunity to make submissions at an oral hearing on why a stay would not be appropriate. The next day, the Attorney General and amici appeared before Koke J. to argue the motion.

THE DECISION TO ORDER A STAY

[21] Koke J. dismissed the motion to set aside the amicus appointments and imposed a stay of the Attorney General's appeal. The stay would endure until such time as the Attorney General and amici had negotiated a mutually acceptable rate of compensation (or until the court otherwise ordered the stay lifted).

[22] Koke J. repeated his initial reasons for selecting the particular counsel as amici. He also acknowledged the amici's further argument that the Attorney General would realize considerable cost savings, despite higher hourly rates, because the amici: (i) were local counsel who would not incur travel expenses; (ii) already had the transcripts, valued at thousands of dollars; and (iii) were already familiar with the facts.

[23] The Attorney General did not argue that the rate amici requested was unreasonable. Rather, it submitted that it had no obligation to negotiate with amici and had a list of suitable alternative counsel who would work for the legal aid rate (at paras. 28-29).

[24] Koke J. rejected the Attorney General's submission and re-iterated his interpretation of Criminal Lawyers' Association. He held that the Attorney General had an obligation to negotiate with amici to set remuneration above the legal aid rate (at para. 39). In so holding, Koke J. interpreted the majority in Criminal Lawyers' Association, at paras. 75-76, to have established a procedure whereby the parties negotiate the rate of compensation. In his view, the crux of the majority's dispute with the minority was that, failing a compromise, the majority would issue a stay until the amicus could be found whereas the minority would set the rate of compensation (at para. 37). In his view, the legal aid rate was not fair and reasonable in all cases (at para. 43), and a judge should not be restricted to those counsel willing to work at legal aid rates (at para. 42).

[25] Koke J. stated that he had no evidence that the Attorney General's suggested lawyers were qualified to act on the appeal (at para. 49) and did not view vetting the list as falling within his role (at para. 51). Koke J. refused to set aside the appointment of the two amici who were familiar with the positions of both parties, and instead appoint one amicus (at para. 56). Finally, he noted that the wife's position on appeal supported the Attorney General, doing little to alleviate the need for amici.

ISSUES

(1) Whether the appeal judge erred in finding that the Attorney General had an obligation to negotiate a fair and reasonable fee agreement with the appointed amici.

(2) Whether the appeal judge erred in staying the Crown's appeal.

(3) Whether the appeal judge erred in holding that two amici, as opposed to a single amicus, were required to provide responding submissions.

ANALYSIS

[26] Although there are three discrete issues before this court arising from the order and reasons of the appeal judge, whether he had the jurisdiction to make the orders that he did turns on the interpretation and application of the Supreme Court's decision in Criminal Lawyers' Association.

[27] The Criminal Lawyers' appeal arose out of three criminal trials, where in each case, the trial judge appointed amicus to assist accused who had discharged their lawyers. The trial judges made the appointments to either maintain the orderly conduct of the proceedings or to avoid significant delay in already complex, lengthy cases. In each case, the amicus refused to accept legal aid rates, and the trial judge fixed a higher rate, ordering the Attorney General to pay.

[28] The Supreme Court split on whether a court could set remuneration rates for amicus and order the Attorney General to pay. While the minority held that superior courts have that power, the majority disagreed. Karakatsanis J. summarized the position of the majority as follows, at para. 15:

The jurisdiction to appoint an amicus does not necessarily imply or require the authority to set a specific rate of compensation. The ability to order the government to make payments out of public funds must be grounded in law and a court's inherent or implied jurisdiction is limited by the separate roles established by our constitutional structure. Absent authority flowing from a constitutional challenge or a statutory provision, exercising such power would not respect the institutional roles and capacities of the legislature, the executive (including the Attorney General), and the judiciary, or the principle that the legislature and the executive are accountable to the public for the spending of public funds.

[29] She then explained the constitutional framework for the roles of the legislature, the superior courts with inherent jurisdiction and the Attorney General in the administration of justice. Within that framework, courts with inherent jurisdiction are not permitted "to enter the field of political matters such as the allocation of public funds, absent a Charter challenge or concern for judicial independence." For that reason, "it is generally accepted that courts of inherent jurisdiction do not have the power to appoint court personnel." (para. 41)

[30] Although courts cannot appoint administrative staff, they possess inherent jurisdiction to appoint amicus in criminal trials. That jurisdiction is "grounded in [a court's] authority to control its own process and function as a court of law." (para. 46) However, there are conditions to that jurisdiction (paras. 47-48):

Thus, orders for the appointment of amici do not cross the prohibited line into the province's responsibility for the administration of justice, provided certain conditions are met. First, the assistance of amici must be essential to the judge discharging her judicial functions in the case at hand. Second, as my colleague Fish J. observes, much as is the case for other elements of inherent jurisdiction, the authority to appoint amici should be used sparingly and with caution, in response to specific and exceptional circumstances (para. 115). Routine appointment of amici because the defendant is without a lawyer would risk crossing the line between meeting the judge's need for assistance and the province's role in the administration of justice … so long as these conditions are respected, the appointment of amici avoids the concern that it improperly trenches on the province's role in the administration of justice.

[31] The majority held that the authority to set rates of compensation for amicus falls outside the inherent jurisdiction of superior courts. Indeed, "the spectre of trial judges fixing and managing the fees of amici imperils the integrity of the judicial process." (para. 64) A court is entitled to specify the general qualifications required by amicus for the particular circumstances, while the Attorney General is obliged to pay "what is constitutionally adequate to serve the needs of the courts." (para. 65) While a court may set rates where its authority is either based on a statute (e.g. s. 694.1(1) of the Criminal Code), or as a constitutional remedy under s. 24(1) of the Charter, it cannot use its inherent jurisdiction to order the expenditure of funds, which would exceed its role within the constitutional framework.

[32] The final issue addressed by the majority was the specific process to be followed after a court's appointment of amicus. The majority stated that where amicus appointed by the court refuses to accept the compensation offered by the Attorney General, the court's inability to have the amicus of its choice "does not deprive the court of its nature as a court of law." (para. 70) Karakatsanis J. noted that in Ontario, the Attorney General typically finds for the judge's consideration a number of other appropriate lawyers willing to assist the court.

[33] The majority then explained, at paras. 75-76, the process to be followed where there is an impasse:

In those exceptional cases where Charter rights are not at stake but the judge must have help to do justice and appoints an amicus, the person appointed and the Attorney General should meet to set rates and mode of payment. The judge may be consulted, but should not make orders regarding payment that the Attorney General would have no choice but to obey.

In the final analysis, if the assistance of an amicus is truly essential and the matter cannot be amicably resolved between the amicus and the Attorney General, the judge's only recourse may be to exercise her inherent jurisdiction to impose a stay until the amicus can be found. If the trial cannot proceed, the court can give reasons for the stay, so that the responsibility for the delay is clear.

[34] In contrast, the minority took the position that a court has the ultimate power to impose a rate of compensation on the Attorney General. It recommended a "consensual approach" where the amicus and the Attorney General would meet and agree on the rate of remuneration and the administration of the budget. Both parties would negotiate in good faith, the Attorney General to promote the administration of justice, and amicus to fulfill the profession's public service role, with negotiations to be completed as quickly as practicable. But if agreement cannot be reached, then the trial judge does not impose a stay, but rather, fixes the rate of remuneration. The Attorney General would then choose to either pay that rate or, as a party to the proceeding, choose to stay the proceedings.

APPLICATION TO THIS APPEAL

[35] Unlike Criminal Lawyers' Association, this appeal involves the appointment of amicus in a civil, family law case. In Criminal Lawyers' Association, the Supreme Court analyzed the role and jurisdiction of the court over amicus appointments and compensation in a criminal law context. Having said that, much of the discussion and analysis of the inherent jurisdiction of the court to appoint amicus – and the limits of that jurisdiction when it comes to fixing remuneration rates – may be equally applicable in the civil context. On the other hand, the ultimate remedy of a stay, whether imposed by the court as held by the majority of the Supreme Court, or by the Attorney General as suggested by the minority, would normally not be appropriate in a civil case where the Attorney General is not a party.

[36] On this appeal, the issue is not the propriety of the amicus appointments at trial, which is the subject of the appeal before Koke J. when it goes ahead. The only issues for this court to resolve are the remuneration of amicus before the Superior Court, what is to happen when remuneration is not agreed, and whether one or two amici were required to provide responding submissions. I agree with both the trial judge and the appeal judge that the decision in Criminal Lawyers' Association governs the approach and decision regarding these issues in the context of this appeal, which involves the Attorney General as a party.

[37] In oral argument before this court, counsel for the Attorney General did not dispute the necessity of the appointment of amicus by the appeal judge to respond to the Attorney General's appeal.[1] However, counsel maintained that one amicus would have been adequate to provide responding submissions, and that the amicus should have been selected from the list offered by the Attorney General. The appeal judge, as outlined above, rejected these submissions and imposed a stay conditional on mutual agreement on remuneration rates. I now turn to considering the merits of that order.

1) Did the appeal judge err in holding that the Attorney General had an obligation to negotiate rates with amicus?

[38] In my view, a careful reading of the majority decision in Criminal Lawyers' Association makes it clear that the court imposed no obligation on the Attorney General to negotiate rates with amicus.

[39] The majority recognized the power of a court to appoint amicus in appropriate circumstances. It acknowledged, however, that the court-appointed amicus may not be prepared to accept the compensation initially offered by the Attorney General, as occurred in this case. The majority judgment provides three guidelines relevant to such a situation – none of which impose an obligation on the Attorney General to negotiate rates with amicus.

[40] First, the majority clearly stated that a court does not have the ability to force agreement between the parties by specifying a rate in order to secure the amicus counsel of its choice.

[41] Second, the majority approved of the practice in Ontario where the Attorney General finds a number of qualified counsel who are willing to act as amicus at the rate offered by the Attorney General. The majority also discussed other programs the Attorney General could institute to either enhance the legal aid plan or to establish a separate regime for amicus.

[42] Third, the majority held that if the amicus and the Attorney General are not able to agree on remuneration, and where the assistance of amicus is truly essential, then the court's only recourse is to impose a stay "until [an appropriate] amicus can be found." (para. 75) – in other words, until another counsel can be found to act as amicus where it is truly essential to have amicus to assist the court.

[43] At no point did the majority impose an obligation on the Attorney General to negotiate remuneration rates with court-appointed amicus. The majority did suggest that when a judge requires help and appoints amicus, the amicus and the Attorney General "should meet to discuss rates and a mode of payment" (para. 75). Unlike the minority, the majority does not state that the Attorney General should negotiate rates with the amicus in good faith. This is a significant, and in my view, clearly a deliberate departure from the approach taken by the minority.

[44] In this case, although the Attorney General did not meet with the counsel who were appointed as amicus, there was correspondence about rates. Amicus counsel and the Attorney General were unable to reach an agreement. In my view, the Attorney General was not required to negotiate further with the appointed amicus, having fulfilled the expectation of the majority decision in Criminal Lawyers' Association.

2) Did the appeal judge err by ordering a stay of proceedings?

[45] Criminal Lawyers' Association makes the remedy of a stay available to a judge in one set of circumstances: where the assistance of amicus is "truly essential", the appointed amicus and the Attorney General cannot agree on a rate of remuneration, and there is no other recourse but to stay the proceedings until another appropriate amicus can be found.

[46] The respondents' submissions suggest that Criminal Lawyers' Association recognized a second set of circumstances where a stay can be imposed: when the Attorney General refuses to negotiate with the court's choice of amicus, even when other appropriate amici are available.

[47] I would reject those submissions. In this case, the circumstances necessary for a stay did not prevail. Although the appeal judge's preferred counsel were not available because they would not work for legal aid rates, the majority decision in Criminal Lawyers makes clear that a court is not necessarily entitled to amicus of its choice where other appropriate counsel have been made available by the Attorney General.

[48] For the purpose of the appeal to the Superior Court, the Attorney General provided three senior counsel with appellate experience from the family law bar in Ontario for the appeal judge's consideration, in accordance with the practice that was acknowledged and approved by the majority in Criminal Lawyers' Association. In these circumstances, there was no basis for the court to order a stay.

3) Did the appeal judge err by requiring two amicus to respond to the appeal?

[49] In the special circumstances of this case, the trial judge required two amici, one on behalf of each unrepresented party, to maintain a proper adversarial process that would challenge the evidence presented by each side and allow the trial judge to decide the issues between them on the merits. However, that logic did not extend to the appeal of the amicus orders by the Attorney General. That appeal would not be concerned with the merits between the parties, but with the constitutional and policy issues surrounding the power to appoint amicus in a civil case at the expense of the Attorney General.

[50] Applying the "truly essential" test, I can see no basis for the decision that two amici were essential to assist the appeal judge with the legal issues to be raised on the appeal. Similarly, while this court appreciates very much the assistance of the two amici who acted as responding counsel before this court, their submissions on the issues to be decided before the Superior Court were not in opposition in any way. Rather, they supported each other.

CONCLUSION

[51] For the reasons given, I would set aside the stay, and remit the matter back to the appeal judge to consider the three amicus counsel proposed by the Attorney General who are prepared to act for legal aid rates, and appoint one to assist the court on the appeal.

[52] The Attorney General requested that the matter be remitted to a different judge of the Superior Court, but did not provide supporting reasons. I see no basis for such an order.

[53] As stated, the court is grateful for the assistance of amicus on this appeal.

Released: September 12, 2017

"K. Feldman J.A."

"I agree. E.E. Gillese J.A."

"I agree. S.E. Pepall J.A."

Footnote

[1] All parties were co-operative in having the same two amicus assist this court on the appeal. For that purpose only, the two amicus counsel agreed to accept legal aid rates.