Court File and Parties
Ontario Court of Justice
Date: 2017 June 19
Court File No.: TORONTO DFO 15 12828
Between:
Michael Mills Applicant
— And —
Lindsay Hachey Respondent
Before: Justice E.B. Murray
Heard on: June 1, 2017
Reasons for Judgment released on: June 19, 2017
Counsel
Ms. Lisa Baumal — counsel for Michael Mills
Mr. Lenard Kotylo — on his own behalf
Ms. Lindsay Hachey — not attending
Judgment
MURRAY, E.B. J.:
Background
[1] Michael Mills and Lindsay Hachey have a 4 year old son, Elijah. For much of the child's life they have been engaged in acrimonious litigation. On November 24, 2016 I made an order on motion concerning Elijah's schedule. I scheduled a settlement conference for February 15, 2017.
[2] Lindsay was unhappy with the November 24th order. She discharged her lawyer, Mr. Lenard Kotylo, saying that she intended to retain a new lawyer. Mr. Kotylo advised her that her new lawyer should file papers with the court saying that he or she was acting for her.
[3] Lindsay did not get a new lawyer. On February 15, 2017, she appeared at court, asking that the settlement conference scheduled for that day be adjourned to allow her to get new counsel. Michael's lawyer agreed to the adjournment, and said that she would seek the costs of the adjournment from Mr. Kotylo. The settlement conference was adjourned to April 19, 2017. Michael and Lindsay settled the case prior to that date, and submitted a consent to a final order by 14b motion.
The Claim for Costs
[4] Michael's claim for costs against Mr. Kotylo was argued on June 1, 2017. Michael asks that Mr. Kotylo pay him $2,842.10. He says that Mr. Kotylo should have alerted him that he was no longer Lindsay's lawyer, and that he should have either caused Lindsay to file a Notice of Change in Representation or that he should have brought a motion to be removed as solicitor of record. Michael says that had he been aware that Lindsay was not prepared to participate in the settlement conference that he would not have prepared a brief and attended court, but would have had his lawyer arrange an adjournment in advance. He says that Mr. Kotylo's conduct caused him to waste money on legal fees.
[5] Mr. Kotylo replies saying that when Lindsay discharged him, he advised her to have her new lawyer file a Notice of Change. He received correspondence and a settlement conference brief from Michael's lawyer and forwarded them to Lindsay. He did not think it was his place to communicate with Michael's lawyer further, or to ask for an adjournment of the settlement conference scheduled for February 15th.
Legal Framework
[6] Rule 24(9) deals with costs claimed against a lawyer.
(9) If a party's lawyer or agent has run up costs without reasonable cause or has wasted costs, the court may, on motion or on its own initiative, after giving the lawyer or agent an opportunity to be heard,
(a) order that the lawyer or agent shall not charge the client fees or disbursements for work specified in the order, and order the lawyer or agent to repay money that the client has already paid toward costs;
(b) order the lawyer or agent to repay the client any costs that the client has been ordered to pay another party;
(c) order the lawyer or agent personally to pay the costs of any party; and
(d) order that a copy of an order under this subrule be given to the client.
[7] Caselaw has provided guidance as to the application of this Rule and a similar provision in The Rules of Civil Procedure (Rule 57.07). Justice D. M. Brown stated the following in Giglio v. Peters, 2014 ONSC 2, [2014] O.J. 23 (Sup. Ct.):
- The Court of Appeal, in Galganov v. Russell (Township), summarized the principles a court should apply on a motion seeking an award of costs personally against a lawyer under Rule 57.07. Two over-arching principles must inform the analysis:
(i) First, costs are awarded to compensate a successful party, not to punish a barrister. Accordingly, Rule 57.07(1) is designed to protect and compensate a party who has been subjected to costs being incurred without reasonable cause, not to punish a lawyer. Rule 57.07(1) is not concerned with the discipline or punishment of a lawyer, but only with compensation for conduct which has caused unreasonable costs to be incurred.
(ii) Second, as the Supreme Court pointed out in Young v. Young:
[C]ourts 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.
15 Determining a motion brought under Rule 57.07 requires a court to conduct a two-step inquiry. First, the court must examine whether the lawyer's conduct falls within Rule 57.07(1) in the sense that it caused costs to be incurred unnecessarily. Mere negligence can attract costs consequences in addition to actions or omissions which fall short of negligence. Bad faith is not a requirement for imposing the costs consequences of Rule 57.07(1). It is only when a lawyer pursues a goal that is clearly unattainable or is clearly derelict in his or her duties as an officer of the court that resort should be had to Rule 57.07.
16 To that end, Rule 57.07(1) requires an examination not only of the specific incidents of the lawyer's conduct complained of, but also a review of the entire course of litigation that went on before so that the judge can put in proper context the specific actions and conduct of counsel and can ensure that a holistic examination of the lawyer's conduct produces an accurate, tempered assessment as to whether the lawyer's conduct caused unreasonable costs to be incurred.
17 As to the second step in the inquiry, the Court of Appeal in Galganov stated:
The second step is to consider, as a matter of discretion and applying the extreme caution principle enunciated in Young, whether, in the circumstances, the imposition of costs against the lawyer personally is warranted. The "extreme caution" principle, as stated in Young, means that "these awards must only be made sparingly, with care and discretion, only in clear cases, and not simply because the conduct of a lawyer may appear to fall within the circumstances described in [r]ule 57.07(1)".
In Marchand (Litigation Guardian of) v. Public General Hospital Society of Chatham, an oft-cited case on 57.07(1), the court cautioned that an award of costs against a lawyer personally should only be made in "rare" circumstances.
[8] Justice Carolyn Horkins in Covriga v. Covriga, 2010 ONSC 3030, ordered substantial costs against a solicitor for her "breathtaking disregard" of the Family Law Rules and the Rules of Professional Conduct demonstrated throughout a lengthy trial and a hearing on costs, finding that her conduct lengthened proceedings and caused the other party to waste thousands of dollars on legal fees.
Analysis and Decision
[9] The Rules of Professional Conduct require that a lawyer who is discharged by his client should withdraw from the case and should advise his client in writing that she should expect that any scheduled court date will proceed, and that a new lawyer should be retained promptly. Mr. Kotylo should have advised Lindsay of her obligation to participate in the February 15th conference or to request an adjournment well in advance. In withdrawing from the case, he should have taken steps to have himself removed from the record when Lindsay did not file a Notice of Change in Representation. If he had done so, Michael's lawyer may have communicated with Lindsay well prior to February 15th; Lindsay may have requested an adjournment; Michael may have consented to the adjournment. It is, however, speculation to assume that this would have happened.
[10] I cannot find that Mr. Kotylo's actions or omissions caused Michael to waste money on legal fees. This case is similar to Giglio v. Peters, where the court found that counsel's failure to insure that his client complete a proper affidavit of documents was "a serious error in judgment", but did not cause costs to be incurred without reasonable cause. Here, the cause of the adjournment was not Mr. Kotylo's action or lack of action but Lindsay's failure to prepare for the conference or to request an adjournment from Michael's lawyer in a timely manner.
[11] For this reason, I dismiss Michael's motion to have Mr. Kotylo pay costs.
Released: June 19, 2017
Signed: Justice E. B. Murray