Court File and Parties

Date: May 16, 2019

Court File No.: D21545/18

Ontario Court of Justice

Between:

Ubah Hussein Aganeh Jane Mukongolo, for the Applicant

Applicant

- and -

Jean-Clair Polonyi Helen Miller, duty counsel assisting the Respondent

Respondent

Legal Aid Ontario and Cheryl B. Mounsey Marie Abrahams, for Legal Aid Ontario

Parties Affected by the Case

Cheryl B. Mounsey, not attending despite being given notice

Heard: May 15, 2019

Justice: S.B. Sherr

Endorsement

Part One – Introduction

[1] Cheryl B. Mounsey is counsel of record for the respondent, Jean-Clair Polonyi (the father).

[2] The applicant (the mother) is seeking costs of an April 9, 2019 appearance personally against Ms. Mounsey in the amount of $750.

[3] The father is also seeking costs of $500 against Ms. Mounsey.

[4] Legal Aid Ontario is funding the father's representation. It seeks an order that Ms. Mounsey not charge it or the father fees or disbursements for work done in this case.

[5] Ms. Mounsey did not attend at court despite being given notice.

Part Two – Background Facts

[6] The parties are the parents of four young children.

[7] The children live with the mother.

[8] On October 15, 2018, the mother issued an application that included claims for custody, child support and a restraining order.

[9] On December 20, 2018, the father filed an Answer/Claim that included claims for custody, access and a resulting or constructive trust in a property.[1]

[10] Ms. Mounsey was named as counsel of record for the father in the Answer/Claim.

[11] Ms. Mounsey swore an affidavit on December 20, 2019 that she had served the mother's counsel, Ms. Mukongolo, with the father's Answer/Claim, Form 35.1 and Financial Statement on December 19, 2018.

[12] The First Appearance Date at court was on December 27, 2018 before the First Appearance Clerk. The parties and Ms. Mukongolo attended at court. Ms. Mounsey did not.

[13] The matter came before the court on March 22, 2019.[2] The parties and Ms. Mukongolo attended. Ms. Mounsey did not. The matter was held down for the parties to attempt to reach Ms. Mounsey. They could not.

[14] The father advised the court that Ms. Mounsey had told him on March 6, 2019 that she will no longer represent him. He said that he had asked for a reason and wasn't provided with one. He indicated that he would apply to Legal Aid Ontario for a change of solicitor.

[15] Ms. Mukongolo advised the court that Ms. Mounsey had been actively representing the father up until the beginning of March, but Ms. Mounsey had then advised her that she would not be acting for him any longer. Ms. Mukongolo told the court that she asked Ms. Mounsey to take the proper legal steps – either move to be removed from the record or have the father complete a Form 4 – Notice of Change of Representation, but she had not done so.

[16] Ms. Mukongolo also advised the court that communication with Ms. Mounsey had been terrible and that Ms. Mounsey had blocked her number on her fax machine, requiring the mother to pay additional courier costs to serve her case conference brief.

[17] The mother sought her costs of $750 personally against Ms. Mounsey. The court was not prepared to make that order without giving Ms. Mounsey a reasonable opportunity to be heard as required by subrule 24(9) of the Family Law Rules (the rules). The court endorsed the following:

Father's counsel not present. She did not have a Form 4 filed or bring a motion to get off the record. Counsel must do that – they cannot simply just not show up to court.

Father's counsel is to attend at court on the next court date to explain her conduct and must take the appropriate steps regarding her representation of the father. Failure to do so may result in a referral to the Law Society.

Counsel for father is put on notice by mother's counsel that mother is seeking personal costs against her for this appearance.

Court staff is to fax a copy of this endorsement to father's counsel.

[18] The matter returned to court on April 9, 2019. The parties and Ms. Mukongolo attended – Ms. Mounsey did not. The matter was held down for the parties to try and reach Ms. Mounsey. They could not.

[19] Ms. Mukongolo confirmed that she had served the court's March 22, 2019 endorsement on Ms. Mounsey. The fax confirmation showing that court staff had also sent the endorsement to Ms. Mounsey was in the court file.

[20] The court made the following endorsement:

Father's counsel did not attend again today.

Father tried to reach her again today as did mother's counsel. Their calls went straight to voice-mail.

Father came all the way from Ottawa today.

Father's counsel remains solicitor of record.

Both court staff and Ms. Mukongolo sent the court's endorsement to father's counsel.

It is both surprising and highly disappointing that father's counsel has not come to court. Once again it is a wasted appearance.

Father says he has applied to Legal Aid Ontario for a change of lawyer and is waiting for a response.

The court requests that Legal Aid Ontario process this request as soon as possible as he needs legal counsel and his counsel is not attending court.

This is an appropriate case for personal costs against Ms. Mounsey pursuant to subrule 24(9) of the rules.

1. She was put on notice that costs would be sought against her personally as contained in the last endorsement.

2. She has wasted costs without reasonable cause.

3. She has ignored the court's direction to attend today in court.

4. Her behaviour is incredibly unfair to the parties and to the administration of justice

Counsel for mother seeks costs of $1,500 for the last appearance and today's appearance.

Today, the court is only prepared to order costs of $750 against Ms. Mounsey.

The mother only gave Ms. Mounsey notice of her intention to seek costs for today against her yesterday.

The court wants to give Ms. Mounsey every reasonable opportunity to explain her behaviour.

Order to go as follows:

1. Cheryl Mounsey is to pay mother's costs of last appearance on March 22, 2019 in the amount of $750, payable forthwith.

2. Ms. Mounsey is put on notice pursuant to subrule 24(9) of the rules of the following:

That on the return date:

a. Court will consider mother's claim for costs of $750 for today personally against her and will consider;

b. Whether Ms. Mounsey should pay any costs to the father, pursuant to subrule 24(9)(c) of the rules and;

c. Whether to make an order that Ms. Mounsey cannot charge the father fees or disbursements for her work on this case and to repay money that has already been paid to her for fees and disbursements.

3. A copy of this endorsement should be sent to Legal Aid Ontario, Legal Department. They may appear at court on the next appearance and make submissions regarding paragraph 2 above.

4. Both court staff and Ms. Mukongolo should fax this endorsement to Ms. Mounsey.

Court will consider a referral of this matter to the Law Society at next court date.

Ms. Mounsey is directed by court to attend the next court date. It is strongly suggested that she retain counsel for herself.

[21] The court staff and Ms. Mukongolo served Ms. Mounsey with the court's endorsement.

[22] The matter returned to court on May 15, 2019. The parties and Ms. Mukongolo attended. Counsel for Legal Aid Ontario also attended. Ms. Mounsey did not attend.

[23] Counsel for Legal Aid Ontario advised the court that Legal Aid Ontario had sent a letter to Ms. Mounsey asking her to explain what was happening, but she has not responded.

[24] The father advised the court that he has had no contact with Ms. Mounsey since before the April 9, 2019 court appearance.

[25] The court was advised that the father has been approved for a new lawyer and he had already consulted a new lawyer that he hopes to retain shortly. The matter was adjourned after the costs submissions to permit the father to straighten out his representation issues.

Part Three – Legal Considerations

[26] The Ontario Court of Appeal in Mattina v. Mattina, 2018 ONCA 867, set out that modern costs rules are designed to foster four fundamental purposes:

(1) to partially indemnify successful litigants;

(2) to encourage settlement;

(3) to discourage and sanction inappropriate behaviour by litigants; and

(4) to ensure that cases are dealt with justly under subrule 2(2) of the Family Law Rules (all references to the rules in this decision are to the Family Law Rules).

[27] Subrule 24(9) of the Family Law Rules permits the court to order a party's lawyer to pay the costs of another party if the lawyer has wasted costs. This subrule reads as follows:

COSTS CAUSED BY FAULT OF LAWYER OR AGENT

(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.

[28] In Hunt v. Worrod, 2018 ONSC 2133, the court at paragraphs 33 and 34, set out the legal test for the court to follow in determining whether to order costs personally against a lawyer as follows:

[33] The courts have endorsed a two-part test for awarding costs against a lawyer personally:

(i) Does the lawyer's conduct fall within the ambit of the rule in the sense that he or she caused costs to be incurred or wasted unnecessarily and without reasonable cause, and

(ii) As a matter for discretion, is an order for costs personally warranted in the circumstances?

[34] With respect to the court's discretion, former Chief Justice McLachlin J. explained in Young v. Young, [1993] 4 S.C.R. 3 at para 263:

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 offer of costs may conflict with these fundamental duties of his or her calling.

[29] In F. (V.) v. F. (J.), 2016 ONCJ 759, the court wrote the following at paragraph 12:

12 To be clear, and contrary to the submission of Mr. Fogelman, misconduct is not a prerequisite for the application of sub-rule 24(9) if counsel has caused the other side to incur wasted or unnecessary costs. As Justice Rene M. Pomerance of the Superior Court of Justice ("SCJ") succinctly put it in D. (M.) v. Windsor-Essex Children's Aid Society: "Compensation may be appropriate even if discipline is not." (my emphasis)

[30] A costs order against a lawyer is not restricted to a situation where the lawyer has acted in bad faith. See: Covriga v. Covriga, 2010 ONSC 3030. However, the court should exercise extreme caution before ordering costs against a solicitor. See: Rand Estate v. Lenton, 2009 ONCA 251; Sambasivam v. Pulendrarajah, 2012 ONCJ 711.

[31] In controlling its own process, it may be necessary to sanction unacceptable conduct through the mechanism of costs, in part as a deterrent to others so as to maintain the integrity of the unspoken underpinnings of the processes that are so commonplace we may sometimes take them for granted. See: Weening v. Weening; Sambasivam v. Pulendrarajah, supra.

[32] In Galganov v. Russell (Township), 2012 CarswellOnt 7400 (Ont. C.A.), the court set out the following factors to consider before making a costs order against a lawyer:

a. The first step is to determine whether the conduct of the lawyer comes within the rule; this is, whether his or her conduct caused costs to be incurred unnecessarily. To do so, the court must consider the facts of the case and the particular conduct attributed to the lawyer.

b. The rule allowing costs against a lawyer is not intended as punishment for professional misconduct. Rather, it is as indemnity for the time wasted and expenses unnecessarily expended as a result of the conduct of a lawyer.

c. Neither negligence nor bad faith is a requirement for imposing costs against a lawyer.

d. Mere negligence or conduct that does not meet the level of negligence may be sufficient to attract costs against a lawyer.

e. The costs rule is intended to apply ". . . 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 . . ."

f. In determining whether the rule applies, the court must examine "the entire course of the litigation that went on before the application judge". This requires a "holistic examination of the lawyer's conduct" in order to provide an "accurate tempered assessment". But a general observation of the lawyer's conduct is not sufficient. Instead, the court must look at the specific incidents of conduct that are subject to complaint.

Part Four – Analysis

[33] Subrule 24(9) of the rules provides an array of remedies when costs are caused by the fault of a lawyer – the court is not restricted to just ordering the lawyer to pay the costs of the opposing party. The court has taken into consideration that it must use extreme caution before exercising these remedies.

[34] However, the court finds that this is an appropriate case for it to exercise these remedies for the following reasons:

a) Ms. Mounsey has now wasted costs for 3 court appearances.

b) Ms. Mounsey has ignored two court directions to attend at court to explain her behaviour.

c) The mother has incurred unnecessary legal costs due to Ms. Mounsey's conduct.

d) The parties have been unable to move forward with their case due to Ms. Mounsey's conduct.

e) The father resides in Ottawa. He has incurred unnecessary accommodation and transportation costs coming to court due to Ms. Mounsey's conduct.

f) Ms. Mounsey has breached her professional obligation to attend court when she is counsel of record. If she no longer wished to represent the father, her choice was to move before the court to be removed from the record, or if he agreed, for the father to serve and file a Form 4 – Notice of Change of Representation. She cannot simply decide not to show up at court.

g) Every reasonable opportunity has been given to Ms. Mounsey to be heard and to explain her conduct to the court.

h) Ms. Mounsey has been put on notice of these potential costs consequences.

i) Ms. Mounsey has brought the administration of justice into disrepute. It is very rare when lawyers conduct themselves in this manner.

[35] The mother's claim for costs is reasonable and proportionate. The court will order Ms. Mounsey to pay a further $750 for the mother's costs.

[36] The father has also incurred wasted costs. His claim for $500 for hotel and accommodation costs for the past three court appearances is reasonable and proportionate.

[37] Clauses (a) and (b) of subrule 24(9) of the rules refer to remedies between a lawyer and client. They do not include a remedy for payment of the client's costs. However, they also do not preclude a remedy for payment of these costs.

[38] Clause (c) of subrule 24(9) of the rules does authorize the court to order the lawyer to personally pay the costs of any party. The father is a party.

[39] The court will take a liberal interpretation of subrule 24(9) of the rules. It finds that the specific reference to a client in clauses (a) and (b) of the subrule does not preclude the court from finding that the father is a party entitled to a costs order from his own lawyer under clause (c). This interpretation is consistent with the primary objective set out in subrule 2(2) of the rules – to deal with cases justly.

[40] It is just in the circumstances of this case to order Ms. Mounsey to pay the father's costs fixed at $500.

[41] This is also an appropriate case to make an order that Ms. Mounsey cannot charge the father or Legal Aid Ontario for fees or disbursements for work in this case. She has caused considerable damage in this case and should not receive compensation for the little work she has done.

Part Five – Order

[42] An order will go on the following terms:

a) Ms. Mounsey shall pay the mother's costs of $750 immediately. This is in addition to the $750 costs ordered against her on April 9, 2019, for a total of $1,500.

b) Ms. Mounsey shall pay the father's costs of $500 immediately.

c) Ms. Mounsey shall not charge the father or Legal Aid Ontario for fees or disbursements for her work in this case.

[43] Court staff are directed to send this endorsement to the Regional Senior Judge for Toronto, to determine if further action should be taken with the Law Society of Ontario.

[44] This court is not familiar with Ms. Mounsey. It is highly unusual that a lawyer would act in this way. The court is left to wonder whether she is acting defiantly or if there are other issues at play. It is hoped that someone will follow up to assist her if it is the latter.

Released: May 16, 2019

Justice S.B. Sherr

Footnotes

[1] The Ontario Court of Justice has no jurisdiction to make orders for resulting or constructive trust in property.

[2] The parties had agreed to a long adjournment at First Appearance Court due to a medical issue for the father.