WARNING
The court hearing this matter directs that the following notice be attached to the file:
This is a case under Part III of the Child and Family Services Act and is subject to one or more of subsections 45(7), 45(8) and 45(9) of the Act. These subsections and subsection 85(3) of the Child and Family Services Act, which deals with the consequences of failure to comply, read as follows:
45.—(7) Order excluding media representatives or prohibiting publication.— The court may make an order,
(c) prohibiting the publication of a report of the hearing or a specified part of the hearing,
where the court is of the opinion that . . . publication of the report, . . ., would cause emotional harm to a child who is a witness at or a participant in the hearing or is the subject of the proceeding.
(8) Prohibition: identifying child.— No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding, or the child's parent or foster parent or a member of the child's family.
(9) Idem: order re adult.— The court may make an order prohibiting the publication of information that has the effect of identifying a person charged with an offence under this Part.
85.—(3) Idem.— A person who contravenes subsection 45(8) or 76(11) (publication of identifying information) or an order prohibiting publication made under clause 45(7)(c) or subsection 45(9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both.
CITATION: C.A.S. of the R.M. of W. v. C.T. and J.B., 2017 ONSC 3188
COURT FILE NO.: FS-1017-15
DATE: 2017-05-30
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: The Children’s Aid Society of the Regional Municipality of Waterloo
AND:
C.T. and J.B.
BEFORE: The Honourable Mr. Justice G.A. Campbell
COUNSEL: Jeffrey W. Boich, Counsel for The Children’s Aid Society of the Regional Municipality of Waterloo
Catherine Bellinger, Counsel for the Ontario Children’s Lawyer
Julie Kirkpatrick, Counsel for C.T.
Katherine Hensel, Counsel for J.B.
Susan Sack / Kelly Eckert, Counsel for Brigitte Gratl
Jamie Bennett, Counsel for Jane McKenzie
HEARD: May 10, 11, 12, 15 and 16, 2017
REASONS ON MOTION
A. Process
[1] I have two motions before me:
(a) a motion by Ms. Gratl to “set aside” the findings as they relate her made in my oral Reasons of February 9, 2017 and the “declaratory relief made against her”; and
(b) a motion by Ms. T. for an order pursuant to Rule 24(9) of the Family Law Rules for costs “wasted” or “run up without reasonable cause” payable by Ms. Gratl.
[2] The first Motion raised two bases upon which counsel for Ms. Gratl challenged the findings and the declaratory relief made in February. The first issue was regarding the manner in which notice of the allegation was effected on Ms. Gratl of an intent to raise upon appeal the ground of ineffectiveness of counsel and to impugn Ms. Gratl’s professionalism. It was argued that counsel for Ms. T. “did not strictly follow” Rule 6 regarding “proper” service upon Ms. Gratl. Hence the allegations, consideration and findings were improperly before the court. Secondly, in the alternative, if the service of Ms. T.’s notice to Ms. Gratl of her intent to argue ineffective, inadequate or incompetent counsel by Ms. Gratl was found to be adequate and “approved” by the court (though “irregular”) then on the merits, the allegation was, on the new/additional evidence produced by Ms. Gratl, unfounded or unproven. Hence, the findings and declaratory relief made on February 9, 2017 should be “set aside”.
B. Notice of Intent to Argue Ineffective/Incompetent Counsel on Appeal
[3] After submissions from counsel, I made an oral ruling that even though Ms. Gratl was not personally served, she received ample and adequate notice of her former client’s intention to plead incompetence, inadequate and ineffective counsel at the Appeal.
[4] Pursuant to Rule 6(18) I approved the “irregular” service on Ms. Gratl, since it is clear that Ms. Gratl had received repeated notice that the allegation was a live issue that called for/invited some response from her.
[5] The evidence presented to the court, most of which was uncontroverted, established that numerous contacts were made, including by regular letter-mail, e-mail, electronic drop box and actual courier service on Ms. Gratl’s law office.
[6] I accept Ms. T.’s evidence and her counsel’s submissions (buttressed by the Form 33D Statement of Agreed Facts, service of which upon Ms. Gratl’s counsel on April 9, 2017 was accepted) that Ms. Gratl was contacted as follows:
(a) a letter from Ms. Kirkpatrick of July 22, 2016 wherein she raised the issue of ineffective counsel and gave notice that she was “considering” raising ineffectiveness of counsel as a ground of an (amended) appeal notice; and
(b) an e-mail of August 10, 2016 to Ms. Gratl with a drop box link that was available until August 15, 2016 that contained the actual amended Notice of Appeal (that does include the ineffectiveness of counsel allegation) as well as two supporting affidavits of Ms. T. (dated July 11 and 25, 2016).
[7] Ms. Gratl did not attempt to open the August 10, 2016 e-mail until August 16, 2016, one day after the drop box expired.
[8] Ms. Gratl left on vacation on August 13, 2016, three days after the August 10, 2016 documents were electronically made available to her. On August 16, 2016, while on vacation, Ms. Gratl (after obviously checking her e-mails) e-mailed Ms. Kirkpatrick that she “… use(s) emails only in exceptional circumstances with parties by prior arrangements.”
[9] The evidence from both Ms. T. and Ms. Gratl establishes that Ms. Gratl did not open the electronic copies of the trial transcripts or appeal assignment-court attendances until after the oral Appeal decision was rendered on February 9, 2017. This fact is conceded despite that on February 8, 2017 Ms. Kirkpatrick sent Ms. Gratl both an e-mail copy of a letter dated February 7, 2017 and further affidavit evidence regarding the incompetence/ineffectiveness of counsel argument, as well as giving Ms. Gratl notice that the matter was returning the next day at 11:00 a.m. for a decision on the Appeal.
[10] Rather than attending that day, Ms. Gratl responded early on the morning of February 9, 2017 to Ms. Kirkpatrick to ask to be advised of the decision, after it had been rendered.
[11] Ms. Gratl chose not to attend court on February 9, 2017, nor at any time over the prior eight months after July 22, 2016 when she first was given notice that the allegation of her ineffectiveness and/or incompetence was being made. Ms. Gratl effectively ignored all efforts to engage her regarding the quality and extent of her representation of Ms. T. over the four year period between April 2012 and June 23, 2016.
[12] On Ms. Gratl’s behalf, Ms. Sack argued that:
(a) Ms. Kirkpatrick didn’t “properly serve” Ms. Gratl;
(b) Ms. Gratl had no “duty” to respond to the various attempts to involve her;
(c) even if there may have been some level of expectation on Ms. T.’s and the court’s part that Ms. Gratl would/should respond to any of the allegations of inappropriate/ineffective/unprofessional conduct, such notice was defective because Ms. Kirkpatrick didn’t offer the actual dates and times that the future appeal attendances were scheduled and did not include a copy of the appeal Factum with the other documentation that was served;
(d) when considering any action (or inaction) by Ms. Gratl, the court may only consider the period during the actual trial hearing; not from the date of her retainer to the end of her legal services; that is to say that the only time that could be available within which the court could decide if Ms. Gratl’s professional services were lacking at all is from July 21, 2014 until March 17, 2015 (not from April 27, 2012 to June 23, 2016); and
(e) before Ms. Gratl could be held responsible in any way for ineffective/inadequate/incompetent counsel, her actions (or inaction) must be proven to be the direct (and only) causal connection to a/the miscarriage of justice (i.e.: the Hardman decision) and that without direct evidence of that connection, Ms. Gratl had no duty to her former client (nor to the court) to do anything whatsoever until after the appeal decision was rendered.
[13] I am unpersuaded and respectfully disagree with all of those submissions.
[14] Both counsel referred to and relied upon the seminal case of R. v. Archer, 2005 36444 (ON CA), [2005] 202 CCC (3d) 60; OJ No. 4348 in order to support or reject the notion that a solicitor has a duty to respond to allegations against him/her, and has/or does not have a duty to ensure an expedient and efficient court process. Of course, this begs the question of whether Ms. Gratl offered her client “ineffective assistance of counsel”. The test for ineffective assistance of counsel is set out at para 119 of Archer:
[119] An appellant seeking to quash a conviction on the basis of ineffective assistance of counsel must demonstrate three things. First, where the claim is based on contested facts, the appellant must establish the material facts on the balance of probabilities. Second, the appellant must demonstrate that counsel’s acts or omissions amounted to incompetence. Incompetence is measured against a reasonableness standard. That assessment is made having regard to the circumstances as they existed when the impugned acts or omissions occurred. Hindsight plays no role in the assessment. Allegations of incompetent representation must be closely scrutinized. Many decisions made by counsel at trial will come to be seen as erroneous in the cold light of a conviction. The reasonableness analysis must proceed upon a “strong presumption that counsel’s conduct fell within the wide range of reasonable professional assistance”: R. v. G.D.B. (2000), 2000 SCC 22, 143 C.C.C. (3d) 289 at 298 (S.C.C.). As this court said in R. v. White (1997), 1997 2426 (ON CA), 114 C.C.C. (3d) 225 at 247:
An appellate court’s review of trial counsel’s performance should be deferential. … deference is called for because of the broad spectrum of professional judgment that might be considered reasonable. In most cases, even among the most skilled counsel, no two lawyers will defend an accused in the same way. Different defence counsel will use different trial strategies and tactics, different approaches to the examination and cross-examination of witnesses, different styles in opening and closing argument, all of them reasonable. The art of advocacy yields few, if any, absolute rules. It is a highly individualized art. What proves effective for one counsel may be ineffective for another. Most cases, therefore, offer defence counsel a wide scope for the exercise of reasonable skill and judgment. Appellate judges, many of them advocates in their own practices, should not be too quick to conclude that a trial lawyer’s performance was deficient because they would have conducted the defence differently.
[120] Third, the appellant must demonstrate that counsel’s ineffective representation caused a miscarriage of justice. A miscarriage of justice occurs if the appellate court is satisfied that counsel’s ineffective representation undermined the appearance of the fairness of the trial, or the reliability of the verdict. A verdict is rendered unreliable where the appellant demonstrates that had counsel performed in a competent fashion, there is a reasonable possibility that the verdict could have been different: G.D.B., supra, at pp. 298-99; Joanisse, supra, at pp. 62-64. The allegations of ineffective representation on this appeal do not go to the fairness of the trial process, but to the reliability of the result. The appellant says he was convicted because of the serious shortcomings in counsel’s representation of him. (my emphasis)
[15] Counsel also both referred to para. 159 of Archer to support their opposing arguments:
[159] Trial counsel was entitled, if not duty bound, to respond to the appellant’s allegations against him. Not only was he entitled to respond so as to vindicate his own personal and professional reputation, there was a real danger that this court would be misled if only the appellant’s version of the relevant events was before it. Counsel’s duty to the proper administration of justice required that he cooperate in placing before the court the full picture of the relevant events. Nothing in counsel’s affidavit goes beyond responding to the allegations of wrongdoing made against him. (my emphasis)
[16] Before I address what I conclude is the obvious and clear intent of the highlighted portion of that paragraph, I will give submissions (c) and (d) above the shrift to which they deserve. I ruled on argument (a) on May 10, 2017.
[17] Although submission (c) is connected to submission (b) (no “duty” to respond), once Ms. Gratl had notice that her own professional conduct was a ground in the Appeal (which she herself commenced in December 2015) as an officer of the court and a responsible participant in the provision of the public’s access to justice (see Rule 2(4)) any reasonable person would conclude that it became incumbent upon Ms. Gratl to perform some due diligence and to inform herself of the details of the appeal process and of the steps that remained to be completed. Her wilful blindness or at least her unwillingness to inform herself is unacceptable, irresponsible at best and reprehensible at worst.
[18] Ms. Gratl is “entitled” to notice that her professionalism is being challenged/called into question. Once notified of that/those allegations, Rule 2 requires Ms. Gratl to take some steps to discharge her responsibility to the administration of justice to ensure that adequate/all relevant evidence is placed before the presiding justice with diligence and all due dispatch. Ms. Gratl made no attempt whatsoever, nor did she address in any respect the very serious allegations raised against her by her former client.
[19] Inter alia, Ms. T. complained of inattention by Ms. Gratl to her cause and of unnecessary delays caused by Ms. Gratl’s lack of focus on the case. Ms. Gratl’s behaviour after July 2016 appears to confirm that complaint.
[20] Ms. Gratl’s inattention and intentional and persistent refusal to respond in any manner whatsoever to Ms. T.’s appeal, then, after the decision, to plead that Ms. Kirkpatrick owed Ms. Gratl some obligation to “spoon-feed” her every detail regarding scheduling and every document, factum, books of authorities, transcripts of trial and assignment court attendances (of which there were four) is an entirely unreasonable demand/expectation. I find that Ms. Sack’s argument in (c) above is without any basis in law or in reality.
[21] Secondly, submission (d) above makes no sense whatsoever. Ms. Sack’s thesis is that the court may consider Ms. Gratl’s efforts for her then-client only from the first day of trial to the last day of trial. I ask how an appeal-court justice could not consider pre-trial efforts of counsel including strategies, plans, witnesses to call, development of a theory of the client’s case or, as well in this case, post-hearing efforts pending the trial decision (here almost nine months later) including placement of and access to the child, instructions to appeal, efforts to obtain financial authority to appeal, (including obtaining transcripts of the trial) and especially serving an immediate motion for continued access to the child pending the appeal hearing, which access was terminated entirely by the Hardman decision.
[22] The (d) argument above is specious, entirely without merit and is rejected.
[23] Regarding argument (b) above, Ms. Sack’s submission that a proper reading of the first sentence of para. 159 of the Archer decision … “Trial counsel was entitled, if not duty bound, to respond …” would imply that Ms. Gratl had no duty to respond at all. That interpretation of the paragraph entirely ignores and subverts the obvious intention when one considers the context of the full paragraph. The Court of Appeal in this paragraph highlights a real concern (as happened in this case due directly and only as a result of Ms. Gratl’s tactics and strategy) that a court “would be misled if only the appellant’s version of the relevant events was before it.” Only Ms. T.’s version of events was made available to the court because Ms. Gratl again avoided her legal responsibility. The court made its findings of incompetence, inadequacy and ineffectiveness of counsel, upon Ms. T.’s evidence alone because of Ms. Gratl’s inattentiveness and avoidant behaviour.
[24] When read in conjunction with Rule 2 of the Family Law Rules, I find that the first sentence of para. 159 of Archer should be interpreted as the Court of Appeal imposing at least an obligation to the court (if not as much as “a duty”) upon trial counsel to “respond” to the allegations, so that an appeal court would not be misled, then later be expected (pursuant to a liberal interpretation of Rule 25 (19)(e) - “an affected party/person …) to re-open the issue of effectiveness and allow trial counsel to then offer his/her “version of the relevant events”. In my view, any other interpretation of the Court of Appeal’s interest is spurious and misleading. To interpret that paragraph as Ms. Sack argues, would allow every trial counsel to “sit in the weeds” (as Ms. Kirkpatrick termed it) and wait to see if the appeal justice was sufficiently offended by trial counsel’s behaviour to (despite the Carleton v. Beaverton Hotel (2009) admonition) decide that, “extreme caution” notwithstanding, the allegation was well founded and sanctions or consequences should result. Ms. Gratl’s tactic and strategy has caused an unnecessary duplication of effort of counsel, unnecessary extra court attendances and a significant consumption of court and counsel’s resources and taxpayer funding.
[25] Further, after the Archer decision, Provincial Judge F.J. LeDressay (2004) and C. Hill J. (on appeal) provided a survey of the law regarding ineffective assistance of counsel in the R. v. Furtado decision, [2006] O.J. No. 3866, at para. 74): (albeit within a criminal context):
74 On account of the process by which this appeal was perfected by the appellant, and in light of some of Mr. Mignardi's submissions claiming ineffective assistance of counsel at trial, and the increasing number of ineffective assistance of counsel claims in this jurisdiction, a comprehensive summary of relevant first principles is necessary.
The right to effective assistance of counsel
[1] While regulatory solicitor licencing regimes seek to protect the public (i.e. Law Society of Upper Canada Rules of Professional Conduct, Rule 2.01(1) defining a "competent lawyer" and Rule 2.01(2) stating: "A lawyer shall perform any legal services undertaken on a client's behalf to the standard of a competent lawyer"), the right to effective assistance of counsel extends to all accused persons as a constitutionally protected principle of fundamental justice (R. v. B. (G.D.) (2000), 2000 SCC 22, 143 C.C.C. (3d) 289(S.C.C.) at p.297; R. v. Silvini (1991), 1991 2703 (ON CA), 68 C.C.C. (3d) 251 (Ont. C.A.) at p.257; R. v. Garofoli (1988), 1988 3270 (ON CA), 41 C.C.C. (3d) 97 (Ont. C.A.), at pp. 150-2 (reversed without reference to this issue (1990), 1990 52 (SCC), 60 C.C.C. (3d) 161 (S.C.C.)); R. c. Delisle (1999), 1999 13578 (QC CA), 133 C.C.C. (3d) 541 (Que. C.A.) at p. 546).
[2] We place our trust in the adversarial process to determine the truth of criminal allegations (R. v. Joanisse (1995), 1995 3507 (ON CA), 102 C.C.C. (3d) 35 (Ont. C.A.) at p. 57 per Doherty J.A. (leave to appeal refused (1997) (S.C.C.)). The adversarial system not only generates the search for truth but also strives to treat criminal defendants fairly and to protect the innocent from wrongful conviction (R. Ekins, "Defence Counsel Incompetence and Post-Conviction Relief: An Analysis of How Adversarial Systems of Justice Assess Claims of Ineffective Assistance of Counsel" (2003), 9 Auckland U.L. Rev. 529 at p. 529). Where the accused is not self-represented, provincially licenced counsel appear for the prosecution and the defence. In these instances, there exists a "strong presumption that [defence] counsel's conduct fell within the wide range of reasonable professional assistance" (R. v. B. (G.D.), supra, at p. 298; R. v. Archer (2005), 2005 36444 (ON CA), 202 C.C.C. (3d) 60 (Ont. C.A.), at pp. 97, 102; R. v. Joanisse, supra, at p. 61; R. v. DiPalma, 2002 53217 (ON CA), [2002] O.J. No. 2684 (Ont. C.A.) at para 37; R. v. W. (R.) (2006), 2006 6195 (ON CA), 207 C.C.C. (3d) 137(Ont. C.A.) at para. 71; R. v. P. (T.) (2002), 2002 49360 (ON CA), 165 C.C.C. (3d) 281 (Ont. C.A.) at p. 289; R. v. Collier(1992), 1992 12761 (ON CA), 77 C.C.C. (3d) 570 (Ont. C.A.) at p. 573 (leave to appeal refused [1994] 3 S.C.R. vi (S.C.C.)); R. c. Delisle, supra, at p. 548; Nudd v. R., [2006] H.C.A. 9 (Australia H.C.) at para. 40 per Kirby J.).
[3] When significantly incompetent advocacy occurs, the adversarial system is threatened with collapse as the appearance of fairness is compromised and the reliability of the verdict is called into question (R. v. W. (W.) (1995), 1995 3505 (ON CA), 100 C.C.C. (3d) 225 (Ont. C.A.), at pp. 234-5). In effect, the logic of the perceived benefits of the adversary system "comes unstuck where counsel is ineffective" or "deficient" (Ekins, "Defence Counsel Incompetence and Post-Conviction Relief...", supra, at p. 531). Incompetence of defence counsel can result in unjust convictions. Accordingly, ineffective assistance assistance of counsel may, on the facts of a particular case, result in a miscarriage of justice necessitating the quashing of the conviction on appeal (R. v. Archer, supra, at p.96). (my emphasis)
[26] As a guiding theme, this court must also keep in mind the reasoning of Major J. in R v B (G.D.) (2002), SCC 22 (2000) 2000 SCC 22, 1 SCR 520, (para 28), when the Supreme Court addressed the issue of ineffective assistance of counsel:
28 Miscarriages of justice may take many forms in this context. In some instances, counsel's performance may have resulted in procedural unfairness. In others, the reliability of the trial's result may have been compromised.
29 In those cases where it is apparent that no prejudice has occurred, it will usually be undesirable for appellate courts to consider the performance component of the analysis. The object of an ineffectiveness claim is not to grade counsel's performance or professional conduct. The latter is left to the profession's self-governing body. If it is appropriate to dispose of an ineffectiveness claim on the ground of no prejudice having occurred, that is the course to follow (Strickland, supra, at p. 697). (my emphasis)
[27] Ineffective representation can therefore occur, but if no prejudice has resulted, it will not automatically lead to finding of a miscarriage of justice. Counsel’s level of advocacy is only one of many factors that can ultimately lead to a miscarriage of justice ruling, or as in this case to an appearance of unfairness that brings the administration of justice into disrepute.
C. Motion to Set Aside Findings and Declarations of Incompetence, Ineffectiveness of Trial Counsel per Rule 25(19)(c)
[28] Ms. Sack brought her motion to vary (change) or to “set aside” my findings and the declaratory relief pronounced orally on February 9, 2017. Rule 25 (19)(e) allows a “change” to an Order “that,
(e) was made without notice, if an affected party was not present when the order was made because the notice was inadequate …”.
[29] Given the explicit wording of that sub-rule, it is understandable then why Ms. Sack vigorously challenged the manner “notice” was effected upon Ms. Gratl. Besides having to persuade the court that the Rule allowed relief to a non-party (i.e. counsel), if the court ruled that the notice effected was adequate, Ms. Gratl would to all intents and purposes be estopped from the relief she sought by way of the operation of this Rule. It is also clear then why Ms. Sack argued that Rule 25(19)(e) did not cover the matter adequately, and (by way of Rule 1(7) of the Family Law Rules) the court was allowed to refer to Rule 37.14 (1) of the Rules of Civil Procedure, which expands the “affected” population covered by the Rule to … “a party or other person who is affected …”.
[30] I acceded to Ms. Sack’s argument to allow reference to Rule 37.14 (1) of the Rules of Civil Procedure on the issue of party/person inclusion/exclusion.
[31] My view is that without allowing that broad interpretation of party/person, Rule 25(19) prevents Ms. Gratl from seeking any relief from the very serious, adverse findings made against her since she did get notice of the intention to seek such an Order (several times in fact). A strict reading of the Rule, would leave Ms. Gratl without any opportunity to respond to the serious allegations levelled against her regarding her professional competence, adequacy and effectiveness.
[32] Given that Ms. Gratl could very well be subject to a motion for costs against her personally (per Rule 24(9)), based upon the adverse negative allegations and possible findings of unprofessionalism, principles of fairness and access to justice for Ms. Gratl arise. I allowed the motion to proceed after consulting Rule 2(3). In order that the motion could be dealt with “justly”, I find that Rule 25(19)(e) is unduly restrictive and “does not cover adequately” the circumstances presented in this case. Hence, Rule (1) allowed a conduit to Rule 37.14(1) of the Rules of Civil Procedure.
[33] On the other hand, once the court rules that the notice given to Ms. Gratl of the allegations of inadequate, ineffective and incompetent counsel had indeed been effected (as it was in this case), it would follow that neither Rule 25(19)(e) nor Rule 37.14(1) could apply.
[34] When asked by the court if Ms. Gratl’s unwillingness to respond (or put another way, her stonewalling the process (her strategy of avoidance and to wait-and-see-what-happens-then-to-bring-a-motion-for-a-“re-do”) both counsel declined to argue that by her inaction Ms. Gratl had waived her “entitlement” (R. v. Archer) or her right to have an opportunity to present her evidence (“to respond”) in order to challenge the, until then, uncontroverted evidence supporting Ms. T.’s allegations.
[35] I also acceded to allow the motion to proceed on its merits, despite my ruling that there was indeed adequate notice served upon Ms. Gratl and despite her initial passive inaction.
[36] Once engaged, Ms. Gratl alleged that her former client was not credible nor reliable. This after-the-decision approach of disclosing confidential solicitor-client conversations in her affidavits, as well as including inappropriate, hyperbolic statements regarding her “deep feelings” for her client(s) and their case(s) raised the further issues of whether Ms. Gratl continued to be bound by a Duty of Loyalty to Ms. T., even after her retainer was terminated.
[37] In any event, despite the delay, the duplication of effort and expense and the consumption of court time and resources, (all directly caused by Ms. Gratl’s tactics), the motion proceeded to be argued on its merits over most of five full days in May 2017.
[38] On the merits, I concede that it can be (and was) argued that my finding of “incompetence”, based upon the definition of same found in Chapter 3 of the Law Society of Upper Canada “Rules of Professional Conduct” and the Advocates’ Society’s “Principles”, may have been an over-reaction to the shocking non-feasance of Ms. Gratl, as it applies to this former client.
[39] I accede to the request to set aside/change my finding of “incompetence” and I do so order. I leave that issue to the Law Society of Upper Canada to consider. (see Major J.’s comment in R. v. B. (G.D.), supra para. [26]). I am (now) of the view, that the LSUC (not this court) is a more appropriate forum within which that issue may be determined.
[40] However, regarding the issue of the adequacy and effectiveness of Ms. Gratl’s advocacy (or lack thereof as alleged) on behalf of her client, I find that the court is indeed the proper forum to address that question.
[41] Since Ms. T.’s credibility and reliability has been challenged by Ms. Gratl, after reading all of the various affidavits and transcripts of phone calls (including between Ms. Gratl and Ms. T. and between Ontario Legal Aid Plan and Ms. T. - and the timing of those many phone calls) when the evidence proffered by Ms. Gratl and Ms. T. conflict, I accept Ms. T.’s version of events, efforts and statements over Ms. Gratl’s self-serving assertions. Despite Ms. Gratl’s denigration of Ms. T.’s memory, … “during a very sad and emotional time in her life” … since Ms. T.’s sworn testimony is corroborated to a significant extent by her telephone recordings of Ms. Gratl; the telephone recordings of Ms. T. and O.L.A.P.; and the timing of those conversations as they apply to Ms. T. seeking to have access to K. and to obtain the transcripts of the trial for the appeal; and Ms. T. being improperly co-opted to advocate for Ms. Gratl to get O.L.A.P. to pay Ms. Gratl for her efforts at the trial before Hardman J. before she would write an opinion letter for her client, I accept Ms. T.’s evidence as more accurate than Ms. Gratl’s now-recovered and recently-constructed memory of events.
[42] I have come to that view because part of Ms. T.’s assertions of what Ms. Gratl said to her during solicitor-client appointments (as she avers, found below at paras. 16-19 of her affidavit of April27, 2017) are corroborated by parts of the telephone transcripts filed as an exhibit to that same affidavit, as follows:
During the few times that I met with Ms. Gratl she spent most of the time talking to me about her other cases, and boasting about her skill in court in front of the judges. She said that she was best [sic] appeal lawyer for child protections cases in southern Ontario.
Brigitte Gratl believed that the judges in Kitchener were afraid of her and that is why she had to keep appealing their decisions to the Ontario Court of Appeal.
Brigitte Gratl told me that Justice Hardman was biased against everybody and hated drugs and alcohol for her own personal reasons. Brigitte Gratl said that Justice Hardman’s decisions were appealed more than any other judge in the country.
Brigitte Gratl also told me that she believed that Legal Aid Ontario was against her and didn’t want to pay her for any of the work that she did.
[43] Ms. Gratl does not directly deny those statements other than offering, at para. 3 of her reply affidavit of May 4, 2017, the following:
“I do not intend to reply to those matters (“that impugn my honesty and integrity”) which are not relevant and which in my view constitute nothing short of a full scale character assassination.”
[44] I would have preferred that Ms. Gratl had directly responded to these specefic allegations, as they do indeed impugn her integrity, her honesty and her trustworthiness as a member of an honourable profession upon which the public rely as representing an integral part of the administration of justice and the rule of law. The allegations levelled by Ms. T. of those statements having come from Ms. Gratl herself are seemingly corroborated at pages 23 and 24 of the transcript of telephone conversations between them, wherein, even though she is an officer of the very court system that she denigrates (e.g.: “we know full well” that Ms. T.’s appeal “will not be successful and will need to be appealed further to the Ontario Court of Appeal … “because that’s where they start hearing you …” and “this is in the same court house right? the judges sit next to each other … and chances of having a successful appeal in this court are not that great, right? …”). Ms. Gratl’s alleged statements disclose a strong attitude of disdain, cynicism and contempt for the administration of justice.
[45] Despite her strong negative opinion of the court process and its structure (and the local judges before whom she regularly appears and for whom she has a very negative opinion) Ms. Gratl’s actions for her then-client must be considered on the actual facts as they unfolded, not on her unprofessional attitude or her scurrilous opinions.
[46] The various other cases that Ms. Kirkpatrick included at para. 27 of Ms. T.’s affidavit of April 27, 2017 that involved Ms. Gratl and which address whether she discharged her obligations as counsel on those other cases are entirely irrelevant to this motion and to the evidence in this case, involving this client. I have declined to read or consider those cases. Whatever might be contained in those other cases apply to those other circumstances; those other clients; that other evidence; and those other results. I have restricted my consideration of whether Ms. Gratl’s advocacy for Mr. T. to the circumstances of this case only.
[47] In this case, two aspects of the evidence cause me great concern.
[48] First, as she predicted she would, Ms. Gratl immediately commenced an appeal of Hardman, Prov. J.’s decision in December 2015, as authorized by an O.L.A.P. certificate. That certificate also allowed Ms. Gratl to order the transcripts of the trial. Ms. Gratl never did order those transcripts as she should have.
[49] Secondly, despite Hardman, Prov. J. terminating Ms. T.’s access to her daughter K. on December 15, 2015, Ms. Gratl started the appeal but declined, refused or otherwise ignored Ms. T.’s pleas that an immediate motion be brought to reinstate her access pending the appeal being heard. Such a motion (which I would have thought would be standard procedure) to seek an order to maintain the previous access regime status quo, needed to have been brought by Mr. Gratl simultaneously with the Notice of Appeal. I cannot fathom any reason that would justify not bringing such an obvious motion. Ms. Gratl did not start that motion until some months later. Despite finally bringing the motion, no motion for access was ever argued by Ms. Gratl and the transcripts of the trial were never actually ordered by Ms. Gratl. As a direct result of Ms. Gratl’s ineffective and inadequate representation of Ms. T.’s interests on the appeal, the parent-child relationship was allowed to remain severed for over 14 months. The appeal hearing was also significantly delayed due to Ms. Gratl’s intransigence to not ever properly apply for the deposit for the transcripts, because after “extensive experience, acting in numerous child protection matters for some 15 years …” she neglected to fill out the usual O.L.A.P. request-for-deposit form. She also refused to write an “opinion letter” to O.L.A.P. to bring the access motion until she successfully faced Ms. T. to try to persuade O.L.A.P. to pay Ms. Gratl more for her previous trial work.
[50] Ms. Gratl’s conflict with O.L.A.P. has been a recurring theme for her. She importuned Ms. T. on many occasions to persuade O.L.A.P. to pay all of her old account. She even included details of that dispute in her responding affidavit to this motion. Payment for services rendered was not ever Ms. T.’s responsibility. That was an issue between Ms. Gratl and O.L.A.P. and further corroborates Ms. T.’s evidence in para. 19 of her affidavit. (See para. 41 above.
[51] Ms. Gratl had a certificate to proceed with the Appeal with transcripts. She obstinately refused to obtain them and held Ms. T. hostage to her own fees dispute with O.L.A.P. I have no evidence that Ms. Gratl ever spoke directly to O.L.A.P. to ascertain the details of the problem why the deposit for transcripts was not forthcoming. Her inattentiveness to Ms. T.’s dilemma (i.e.: no contact with her child after December 15, 2015 and the lengthy delay of the appeal due to not perfecting the appeal despite four attendances at court to explain why the transcripts were not yet ordered) is both inexcusable and reprehensible. Without question, I find that that pattern of inaction establishes Ms. Gratl’s inadequate and ineffective representation of Ms. T. during the Appeal process.
[52] Therefore I find that Ms. Gratl’s stubborn refusal to act in her client’s interest after December 15, 2015 clearly establishes the basis for a finding of inadequate and ineffective counsel that has brought the administration of justice into disrepute. Her inaction directly caused Ms. T. and Mr. B. being faced with the reality that after 14 months of no contact with their daughter K. – Mr. B. had not seen her for even longer – their chance of overturning the Crown wardship order had become moot. On the first day of the appeal hearing, on the advice of counsel, they withdrew their appeal of the Crown wardship part of the Hardman, Prov. J. Order.
[53] Having conceded that the “incompetent counsel” finding should be set aside for the reasons set out earlier, I have concluded that even though I cannot find that Mr. Gratl’s level of advocacy preceding and during the trial hearing itself (including the period after March 17, 2015 until December 15, 2015) was of such a scandalous quality as to solely cause a miscarriage of justice, Ms. Gratl’s continuing involvement as Ms. T.’s counsel after December 15, 2015 until June 23, 2016 did indeed cause a miscarriage of justice and undermined any appearance of fairness or of justice. Had Ms. Gratl been attentive to her then-client’s interests, there is no doubt in my mind that a motion for access pending appeal would have succeeded and the parent-child relationship would have been continued (such as it had pre- December 15, 2015). It is solely and directly as a result of Ms. Gratl that that relationship may never be successfully re-established.
[54] It is self-evident that the longer a child languishes in care and child welfare appeals string out, the stronger becomes the argument that can be made that continuity of care and consistency of routine should militate against re-introducing a child to her parents. I fear that the status quo (except for my court-imposed-one-time- supervised visit) may now have effectively decided the final issue, not in Ms. T.’s favour. I ascribe that now very possible result directly to Ms. Gratl’s inadequate and ineffective advocacy.
D. Rule 24(9) Costs Caused by Fault of Lawyer
[55] Cost awards against a lawyer personally in the family law context are governed by Rule 24(9) of the Family Law Rules 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. O.Reg. 114/99, r.24(9).
[56] A decision to require a lawyer to pay costs personally is not predicated upon a finding of ineffective or inadequate counsel or upon that counsel’s negligent conduct. Although such a finding may be relevant, the test set by the Rules is whether the lawyer “has run up costs without reasonable cause or has wasted costs”.
[57] On all of the evidence before me, I cannot conclusively decide that the manner in which Ms. Gratl discharged her obligation to Ms. T. before, during or awaiting the trial decision meets either test. However, that same evidence as it applies to Ms. Gratl’s efforts after December 15, 2015, leads me inevitably to the opposite conclusion.
[58] Ms. Gratl’s failure to order and obtain trial transcripts created delay, duplication of effort, unnecessary multiple attendances at Assignment courts (at least three extra attendances), two motions to delay the appeal-hearing (until the transcripts finally became available) and several attendances to manage the appeal process which arose directly as a result of Ms. Gratl’s ineffectiveness and inattentiveness.
[59] There have been several helpful cases relating to a consideration of this Rule. Some of the cases are criminal cases, but despite that difference, some guiding principles can be gleaned from those cases. I will refer to those cases and principles later.
[60] However, one of the first issues, if/after the threshold of “wasted/run up costs” has been established, is whether costs should be based upon Ms. Kirkpatrick’s private-client rate or whether, having agreed to represent Ms. T. on a Legal Aid certificate, the costs order should be determined at that much lower O.L.A.P. hourly rate (i.e.: $450 per hour vs. $127 per hour).
[61] Ms. Kirkpatrick’s account for services rendered on the appeal since late June 2016 until/including February 9, 2017 at her private client rate (including over $15,600 for trial transcripts) is over $142,600.
[62] When pressed, her estimate of her total account until/including May 16, 2017 was somewhere between $175,000 to $200,000 (including all preparation and her attendances for five days in court in Kitchener in May at $3,500 per day).
[63] The Legal Aid rate, until February 9, 2017, would total in the vicinity of 232 hours x $127 = $29,464, plus disbursements of $15,740 = $45,204. Subsequent to that date (to the end of submissions for five days in May at 7.7 hours per day) additional O.L.A.P. rate fees for say 150 hours would be $19,050, for a total of almost $65,000 (about $50,000 for fees alone). Of course, the cost of the transcripts of the trial before Hardman, Prov. J. would have to have been expended regardless of Ms. Gratl’s involvement. Accordingly, that $15,600.00 will not be included in any “costs wasted” consideration.
(1) Whether a Lawyer Can Charge a Private Rate Despite Being Retained as “a Legal Aid Lawyer” On the Case
[64] There is limited legal analysis on whether a cost decision within the family law context should take into consideration that an individual is on legal aid. However, there is much case law on this question in both a criminal and civil law context. By analogy between the Family Law Rules, the civil costs regime, and through the use of Rule 1(7) of the Family Law Rules, those remarks by the Ontario Court of Appeal on this matter are certainly relevant to this case.
[65] Section 46 of the Ontario Legal Aid Services Act (SO 1998 c.26) has legislated that costs awards can be made as though an individual with an O.L.A.P. certificate were not on legal aid. It reads as follows:
Costs orders by court unaffected by legal aid services
- (1) The costs awarded in any order made in favour of an individual who has received legal aid services are recoverable in the same manner and to the same extent as though awarded to an individual who has not received legal aid services.
Same
(2) Subsection (1) applies even if no part of the costs of the legal aid services received by the individual in whose favour the order is made has been contributed or is or will be contributed to the Corporation by the individual or by a person responsible for him or her.
Same
(3) Subsection (1) applies even if the costs so ordered are in excess of the total amount contributed or to be contributed to the Corporation by the individual, or by a person responsible for him or her, for the costs of the legal aid services received by the individual.
[66] Counsel did not argue that this legislation did not apply to Rule 24(9) considerations.
[67] Although it is a criminal case, Justice Skarica, in R v Singh (2014 ONSC 2848) commented on the civil regime for a costs award when one of the litigants is on legal aid. Skarica J.’s extensive survey of the case law on the issue is as follows:
32 In R. (S.) v. R. (M.), 2002 53246 (ON SC), [2002] O.J. No. 4238, 62 O.R. (3d) 107 (S.C.J.), Justice Wein followed well established authority that when assessing costs, the court must function as if it is totally ignorant of the fact the litigant may be legally aided and that accordingly, an award of costs is not affected by the fact that the person's legal fees are funded by Legal Aid. Justice Wein held at paragraphs 23-25:
[23] Neither Basdeo (supra) nor the LPIC case (supra) decided by Justice Nordheimer were referred to in either of these decisions, but the argument advanced by Counsel for the defendants has not convinced me that the amendments to Rule 57 have altered the previous interpretation of s. 46 of the Legal Aid Act. While indemnification is in general the guiding principle with respect to the award of costs on either a substantial indemnity or partial indemnity scale, an award of costs which reflects normal indemnification amounts rather than the Legal Aid tariff simply reflects an intention to augment the principle in Legal Aid cases by requiring that the normal amount of costs still be paid.
[24] It might have been preferable if the interpretation based on Fothergill and Cropper had been set out in the amendment, or stated as in other parallel legislation. See for example s. 17(11) of The Legal Aid Services Society of Manitoba Act, R.S.M. 1987, c. L105, which provides that "the amount of the costs awarded may exceed the actual amount of the expenditure incurred in respect of the matter."
[25] Nonetheless in accord with the existing authority I find that s. 46 of the Act was and is specifically intended to obviate the indemnity principle in Legal Aid. There is nothing unfair about this interpretation. There is no punitive aspect in such an award of costs; the party paying the costs simply pays the same amount as they would if the client were not legally aided. In fact, to hold otherwise would grant an inadvertent windfall to the party fortunate enough to only have to pay costs to an opposing party on Legal Aid, since the rates would be accordingly reduced. (my emphasis)
33 The Ontario Court of Appeal in El Feky v. Tohamy, [2010] O.J. No. 6002 (Ont. C.A.) adopted Justice Wein's reasons in Ramcharitar holding at paragraph 1:
THE COURT: — The respondent raises two issues with respect to costs of the appeal and the motion. First, he argues that because the appellant’s case is funded by Legal Aid Ontario, costs should be fixed at the Legal Aid rate. We do not agree. This issue is determined by s. 46 of the Legal Services Act, 1998, S.O. 1998, c. 26. See reasons of Wein J. in Ramcharitar v. Ramcharitar (2002), 2002 53246 (ON SC), 62 O.R. (3d) 107 (S.C.J.). Accordingly, the costs of the appeal are fixed at $11,000 inclusive of disbursements and applicable taxes payable by the respondent to the appellant forthwith.
34 In a recent family law case, Abdiwahab v. Mohamuud, 2013 ONSC 6194, [2013] O.J. No. 4482 (Ont. S.C.J.), at para. 44, Justice Croll, in following the cases outlined above, held that the Legal Aid rates were not determinative of the costs award and that costs should be awarded as they would have been had there been no Legal Aid certificate.
35 In Ontario v. Rothmans Inc., 2013 ONCA 353 (Ont. C.A.), the Ontario government made a claim for costs for work done by its salaried lawyers at rates that were approximately one half of those being claimed by the appellants with comparable years of experience but refused to provide proof of its actual costs — the salaries of Crown counsel. The Court of Appeal held at paras. 134-138:
134 There is no issue that actual rates charged may be a relevant consideration in determining costs: see Stellarbridge Management Inc. v. Magna International (Canada) Inc. (2004), 2004 9852 (ON CA), 71 O.R. (3d) 263 (C.A.), at paras. 94-99. However, hourly rates and the notion of indemnification, while clearly important, are not the only relevant considerations: see 1465778 Ontario Inc. v. 1122077 Ontario Ltd. (2006), 2006 35819 (ON CA), 82 O.R. (3d) 757 (C.A.); and Chiefs of Ontario v. Ontario, [2007] O.J. No. 4068 (S.C.), paras. 12-14 and 17. The courT.’s authority under rule 57.01(1) remains discretionary, and it is significant that under rule 57.01(1)(0.a), information regarding "rates charged and hours spent" is called for in applying the principle of indemnity only "where applicable". Rates and hours spent are not particularly "applicable" in situations where counsel are salaried employees of their employer litigant. In those circumstances, the salaried lawyer does not generally send a bill to his or her employer for services rendered, with or without hourly rates.
135 Section 131(2) of the Courts of Justice Act, R.S.O. 1990, c. C.43, and s. 36 of the Solicitors Act, R.S.O. 1990, c. S.15 both affirm the Crown's right to recover its partial indemnity costs in proceedings in which it has been successful, even though it is represented by salaried counsel. They provide:
131(2) In a proceeding to which Her Majesty is a party, costs awarded to Her Majesty shall not be disallowed or reduced on assessment merely because they relate to a lawyer who is a salaried officer of the Crown ...
- Costs awarded to a party in a proceeding shall not be disallowed or reduced on assessment merely because they relate to a solicitor or counsel who is a salaried employee of the party.
136 As Ontario acknowledges, these provisions do not deprive the court of its discretion in fixing costs. However, the courts in many jurisdictions have adopted the principle that, where a successful party is represented by a salaried lawyer, the proper method of fixing costs is to deal with them as though they were the costs of an independent outside counsel. The theory behind this approach is that it will roughly and fairly approximate the actual amount of expenses incurred: see Re Eastwood (deceased), [1974] 3 All E.R. 603, at p. 608 (where the "English Rule" appears to have been first articulated); City of Edmonton and Public Utilities Board (1985), 1985 ABCA 6, 16 D.L.R. (4th) 459 (Alta. C.A.), at p. 464; 872245 N.W.T. Ltd. v. Dowdall, [1989] N.W.T.J. No. 114 (S.C.); Grand & Toy Ltd. v. Aviva Canada Inc., 2010 ONSC 372, at paras. 3-5. (my emphasis)
137 The motion judge followed this approach. She was entitled to do so.
138 In the end, the motion judge simply followed the test signalled by Armstrong J.A. in Boucher v. Public Accountants Council for the Province of Ontario (2004), 2004 14579 (ON CA), 71 O.R. (3d) 291 (C.A.), at para. 26: "the objective is to fix an amount that is fair and reasonable for the unsuccessful party to pay in the particular proceeding, rather than an amount fixed by the actual costs incurred by the successful litigant"
(my emphasis added).
36 The authorities make it clear that, in cases where the retainer is Legal Aid or where the lawyer is a salaried employee, costs awards may be made that are in excess of what has actually been paid.
37 Further, it appears that costs awards in excess of actual amounts paid are part of an evolving process where costs awards serve a purpose beyond mere indemnification. A number of examples are set out by the Ontario Court of Appeal in 1465778 Ontario Inc. v. 1122077 Ontario Ltd., 2006 35819 (ON CA), [2006] O.J. No. 4248 (Ont. C.A.), at paragraphs 25-30:
LEGISLATIVE AND CASE LAW BACKGROUND
25 By s. 131 of the Courts of Justice Act, costs of a proceeding are in the discretion of the court but that discretion, although very broad, is to be exercised in accordance with the provisions of an Act or the Rules of Civil Procedure. Section 131(1) provides:
131(1) Subject to the provisions of an Act or rules of court, the costs of and incidental to a proceeding or a step in a proceeding are in the discretion of the court, and the court may determine by whom and to what extent the costs shall be paid.
26 Traditionally the purpose of an award of costs within our "loser pay" system was to partially or, in some limited circumstances, wholly indemnify the winning party for the legal costs it incurred. However, costs have more recently come to be recognized as an important tool in the hands of the court to influence the way the parties conduct themselves and to prevent abuse of the court’s process. Specifically, the three other recognized purposes of costs awards are to encourage settlement, to deter frivolous actions and defences, and to discourage unnecessary steps that unduly prolong the litigation. See Fellowes, McNeil v. Kansa General International Insurance Co. (1997), 1997 12208 (ON SC), 37 O.R. (3d) 464 at 467 and 472 (Ont. Ct. Gen. Div.). (my emphasis)
27 In British Columbia (Minister of Forests) v. Okanagan Indian Band, 2003 SCC 71, [2003] 3 S.C.R. 371 at paras. 25 and 26, LeBel J. discussed the natural evolution of the law in recognizing these policy objectives:
As the Fellowes and Skidmore [infra] cases illustrate, modern costs rules accomplish various purposes in addition to the traditional objective of indemnification. An order as to costs may be designed to penalize a party who has refused a reasonable settlement offer [.] ... Costs can also be used to sanction behaviour that increases the duration and expense of litigation, or is otherwise unreasonable or vexatious. In short, it has become a routine matter for courts to employ the power to order costs as a tool in the furtherance of the efficient and orderly administration of justice.
Indeed, the traditional approach to costs can also be viewed as being animated by the broad concern to ensure that the justice system works fairly and efficiently. Because costs awards transfer some of the winner's litigation expenses to the loser rather than leaving each party's expenses where they fall (as is done in jurisdictions without costs rules), they act as a disincentive to those who might be tempted to harass others with meritless claims. And because they offset to some extent the outlays incurred by the winner, they make the legal system more accessible to litigants who seek to vindicate a legally sound position. These effects of the traditional rules can be connected to the court’s concern with overseeing its own process and ensuring that litigation is conducted in an efficient and just manner. In this sense it is a natural evolution in the law to recognize the related policy objectives that are served by the modern approach to costs. (my emphasis)
28 As part of the recognition that costs serve a purpose beyond indemnification, the courts began to award costs in favour of litigants who were traditionally viewed as disentitled to costs. For example, costs have been awarded in cases where the litigant was self-represented (Skidmore v. Blackmore(1995), 1995 1537 (BC CA), 2 B.C.L.R. (3d) 201 (C.A.) and Fong v. Chan (1999), 1999 2052 (ON CA), 46 O.R. (3d) 330 (C.A.)); where the winning party was a law firm represented by one of its partners who was not charging fees (Fellowes, McNeil, supra); where counsel was salaried (Solicitors Act, R.S.O. 1990, c. S-15, s. 36); and, where the responsibility for a party's legal fees was undertaken by a third party (Re Lavigne and Ontario Public Service Employees Union et al. (No. 2) (1987), 1987 4184 (ON SC), 60 O.R. (2d) 486 (H.C.J.)). (my emphasis)
29 Costs have also been awarded to counsel acting pro bono in Charter or public interest cases such as Rogers v. Sudbury (Administrator of Ontario Works) (2001), 2001 28087 (ON SC), 57 O.R. (3d) 467 (S.C.J.). In that case, Epstein J. awarded costs payable forthwith on an injunction application. She stated at para. 21:
Through granting, when appropriate, cost awards payable forthwith during the course of what is frequently protracted litigation, the financial burden assumed by the lawyers doing pro bono work is reduced. Orders of this nature would allow more lawyers to accept this kind of retainer thereby increasing the opportunity for people, such as Ms. Rogers, to have access to justice. As well, applicants who may suffer irreparable harm as a result of the application of a law that is the subject of a legitimate Charter challenge have increased opportunity to seek interlocutory relief since counsel acting for them have a chance of being paid promptly for the often very expensive process of preparing for and arguing a motion for an interlocutory injunction. (my emphasis)
30 There have also been some recent instances, both in Ontario and in British Columbia, where costs orders have been made in favour of pro bono counsel in non-public interest cases. See for example, MacKay Homes v. North Bay, [2005] O.J. No. 3263 (S.C.J.), Spatone v. Banks, [2002] O.J. No. 4647 (S.C.J.), and Jacks v. Victoria Amateur Swimming Club, 2005 BCSC 1378, [2005] B.C.J. No. 2086 (S.C.). In Brockie (Billinger) v. Ontario (Human Rights Commission) (2004), 2004 16323 (ON CA), 185 O.A.C. 366 (C.A.), this court reversed a decision of the Divisional Court, [2002] O.J. No. 4860, that denied costs to pro bono counsel, holding that "[s]uch a policy would act as a severe penalty to lawyers acting in the public interest by making it possible for litigants of modest means to access the courts." (my emphasis)
38 These authorities clearly establish that courts, when dealing with costs orders in non-criminal law settings, have the discretion to make costs awards significantly in excess of what actually is being paid by the client as long as these costs awards are fair and reasonable in the circumstances — see Ontario v. Rothmans Inc. at para. 138. (my emphasis)
[68] Justice Skarica’s decision was ultimately overturned by the Ontario Court of Appeal in R. v. Singh (2016 ONCA 108). However the Court of Appeal disagreed only because Skarica J.’s rationale was not applicable in the criminal law context. His legal survey well establishes that a litigant’s reliance on legal aid in a civil context (and a family context, by analogy) is irrelevant to a costs award, and that costs can be used by the court to influence the way parties interact with each other and the court. In my view, cost can also be used to influence recalcitrant counsel to invest appropriate time and attention to their own client’s needs and interests.
[69] In the family law context, in the case of Pascal v Mostafev (2015 ONCJ 721), beginning at para. 13, Justice Zisman held, that, as in Ramcharitar, “it is well settled that the receipt of legal aid is not a factor that the court should consider in determining costs…costs in the circumstances of a legally-aided client should be assessed as if legal aid were not applicable.” This includes, Justice Zisman noted, costs to the applicant’s counsel being assessed at a private rate, not the legal aid rate. Further, in Gurley v Gurley (2013 ONCJ 482 at para 19) Justice Sherr found, in citing R. (S.) v R. (M.) that a lawyer, despite being funded at a legal aid rate, had the right to claim costs at his private retainer rate (see also Alvarez v Smith, 2008 10047 (ON SC), [2008] OJ No. 941, 166 ACWS (3d) 101 at paras 17-19).
[70] In this case, I find that the quantum of costs that may be awarded is not conscribed by Ms. Kirkpatrick accepting a Legal Aid certificate, and that the “usual” costs considerations should apply to this particular set of circumstances.
(2) Usual Costs Considerations
[71] Costs awards are traditionally intended to:
(a) indemnify the successful litigant;
(b) encourage parties to settle disputes; and
(c) sanction a party’s unreasonable behaviour or parties that are unprepared (i.e.: costs wasted).
[72] Subsection (11) of Rule 24 sets out six factors that a court should consider. I can perceive no valid reason why those usual factors would not apply when proceeding on a Rule 24 (9) analysis.
(11) Factors in Costs – A person setting the amount of costs shall consider,
(a) the importance, complexity or difficulty of the issues;
(b) the reasonableness or unreasonableness of each party’s behaviour in the case;
(c) the lawyer’s rates;
(d) the time properly spent on the case, including conversations between the lawyer and the party or witnesses, drafting documents and correspondence, attempts to settle, preparation, hearing, argument, and preparation and signature of the order;
(e) expenses properly paid or payable; and
(f) any other relevant matter.
[73] It is also now trite law that costs should be approached in “a balanced and flexible way” seeking “a sensible and fair result” … “consistent with what an unsuccessful party (person) might reasonably have expected to pay”; “be proportional to the complexity and importance of the issues argued rather than reliance on a rigid hours-billed/documents-created basis”. See cases including: Pagrotta v. Brown (2002) O.J. No. 3033; Gale v. Gale (2006) CarswellOnt. 6328; Moon v. Sher (2004) 2004 39005 (ON CA), 246 D.L.R. (4th) 440; Ostapchuk v. Ostapchuk 2003 CarswellOnt. 1666; Zestra Engineering v. Cloutier (2002) 2002 25577 (ON CA), O.J. No. 4495; CAM v. DM (2003) 2003 18880 (ON CA), 67 O.R. (3d) 181 (OCA); Hackett v. Leung (2005) 42254 (ONSC).
(3) Costs Orders as Indemnification
[74] Ms. Sack argued that Ms. T. needn’t be “indemnified” because she was legally aided throughout the entire proceeding, hence there was no person nor anything to indemnify. That submission then led her to challenge whether O.L.A.P. had any “standing” to seek reimbursement for Ms. Kirkpatrick’s legal accounts and whether the court had “any responsibility” to act as a gatekeeper or “guardian” of the public purse. She also raised the logistics of to whom or to what funding-source any order could direct costs be paid by Ms. Gratl (or by her funding-source). She also questioned upon what authority the court had to (a) make such an order; and (b) enforce such order; if so made.
[75] Again, I am not persuaded by any of these submissions, nor am I unduly concerned by the logistics that attach to any costs order that might be made. Just as Rule 2 of the Family Law Rules charge the court to “deal with cases justly”, (including controlling its own process, “saving expense and time” and “giving appropriate court resources to the case …”) I accept that as a societal institution, the court has an obligation and the authority to address how society’s financial “resources” (i.e.: taxpayer funds entrusted to Agencies, institutions and through the Provincial Attorney General’s office, the O.L.A.P.) are allocated and expended. In criminal cases, the Superior Court has the authority to order the government to fund an indigent accused’s defence counsel at above the legal aid rate. As well, Rule 24(3) itself vests authority in the court to order costs payable to or by a government agency. I find that I have a responsibility and the authority to make such a costs order payable to O.L.A.P., a person or to another counsel.
(4) Other Costs Case-Law
[76] In Rand Estate v Lenton (2009 ONCA 251) at para. 5, the Ontario Court of Appeal found that the determination of costs against counsel requires a holistic and contextual approach to the entirety of the solicitor’s behaviour (not just during the trial only, as Ms. Sack argues) in order to “…produce an accurate tempered assessment” of costs. Further, other case law confirms that the test for determining costs against counsel is a two-part test: (1) did counsel cause costs to be unnecessarily incurred? (2) should the court exercise its discretion to impose costs against counsel despite the requirement that it use extreme caution before doing so? (see Galganov v Russell (Township) )2012 ONCA 410) at para 22. This decision reiterates the “extreme caution principle” set out in Young v Young (1993 34 (SCC), [1993] 4 SCR 3 at para 263) which was also followed by Justice Hackland, in Carleton v Beaverton Hotel, 2009 92124 (ON SCDC), [2009] 96 OR (3d) 391; 314 DLR (4th) 566 where, at para 15, he noted:
15 I agree with the appellant’s submission that the "extreme caution" which courts must exercise in awarding costs against a solicitor personally as stated in Young v. 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 solicitor may appear to fall within the circumstances described in Rule 57.07(1) [of the Rules of Civil Procedure] which Rule is set out as follows:
LIABILITY OF LAWYER FOR COSTS
57.07 (1) 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, the court may make an order,
(a) disallowing costs between the lawyer and client or directing the lawyer to repay to the client money paid on account of costs;
(b) directing the lawyer to reimburse the client for any costs that the client has been ordered to pay to any other party; and
(c) requiring the lawyer personally to pay the costs of any party.
(2) An order under subrul (1) may be made by the court on its own initiative or on the motion of any party to the proceeding, but no such order shall be made unless the lawyer is given a reasonable opportunity to make representations to the court.
(3) The court may direct that notice of an order against a lawyer under subrule (1) be given to the client in the manner specified in the order. (my emphasis)
[77] In F. (V.) v F. (J.) (2016 ONCJ 759 at paras. 11-15) Kurz, Prov. J. elaborated on the first part of the test, as set down by the Ontario Court of Appeal in Galanov:
11 The Ontario Court of Appeal offered the following directions in regard to the first part of the two-part test in Galganov:
a. The first step is to determine whether the conduct of the lawyer comes within the rule; that 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 to the specific incidents of conduct that are subject to complaint. (my emphasis)
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)
13 In R. (C.) v. Children's Aid Society of Hamilton, Justice George Czutrin of the SCJ stated that any person whose conduct "flies in the face" of the primary goals of the Family Law Rules12 may be subject to cost consequences. Those persons include the Office of the Children's Lawyer (the "OCL"), the branch of the Ontario Ministry of the Attorney General that is often appointed to represent children in custody and child protection proceedings. (my emphasis)
14 In Children's Aid Society of St. Thomas (City) & Elgin (County) v. S. (L.), Justice Eleanor M. Schnall of this court ordered costs against the OCL counsel. She did so because the children's counsel engaged in an "appalling" waste of court time. OCL counsel conducted "...ineffective, wasteful, time-consuming and unproductive" cross-examinations of all witnesses. Some unnecessary witnesses were called at her insistence. She failed to assist the court in determining the issues and fulfilling the primary objective. (my emphasis)
15 This position was upheld by Justice Robert Spence in Children's Aid Society of Toronto v. L. (L.), and Justice John Harper of the Superior Court of Justice in Children's Aid Society of London and Middlesex v. B. (C.D.).
(my emphasis)
[78] I agree with these principles as set out in F v. F(G). In the case before me, I find that the flagrant dereliction by Ms. Gratl of her duty to her client and to the court is indeed just such an exception to the Hackland J. admonition in the Carleton case to use “extreme caution” and to impose such costs orders against counsel personally “sparingly”.
(5) Trial Counsel’s Obligation to Advocate “Zealously”
[79] Unlike Mr. Neinstein in the Carleton v. Beaverton Hotel (2009) case and Mr. Groia in the Groia v. LSUC (2016) who both found themselves challenged by their alleged ‘extreme’ behaviour in the face of the court as a result of their overzealousness, persistence and fearlessly advancing every argument, (including, in Mr. Groia’s case alleging prosecutorial misconduct), it is not Ms. Gratl’s actions or advocacy pre/at trial that forms the basis for the claim for costs against her personally. Indeed, Hardman, Prov. J. does not even mention Ms. Gratl’s adequacy or effectiveness at trial in her extensive written Reason.
[80] The basis for the (successful) claim for costs against Ms. Gratl personally results from the opposite of “zealous representation” or “fearless advocacy” for Ms. T. It is as a direct result of Ms. Gratl’s inattentive, careless, irresponsible and derelict lack of attention to Ms. T.’s interests on her appeal that directly caused costs to be unreasonably “run up” and “wasted”.
(6) No Extra Time “Cost” Due to Ms. Gratl’s Motion to Set Aside Findings
[81] Ms. Sack also argued that since Ms. Gratl is “entitled” to notice of the allegation of ineffective counsel, the court would have been obliged to invest the same amount of time taken post-February 9, 2017 to listen to submissions on the issue in any event; since the same arguments and issues would need to be addressed regardless of whether Ms. Gratl responded pre-February 9 or post-February 9.
[82] Again, I disagree with that submission. If Ms. Gratl had discharged her professional obligation to her client with due diligence, attention and skill, the allegation would not have been available and could not have been advanced. Indeed, much of the time taken on the appeal hearing itself (January 31, February 1, 2 and 9, 2017) and everything thereafter, (including all the affidavits, research, books of authority, Factums, Compendia, correspondence, telephone conference calls and attendance at five days of submissions - at which usually five counsel attended, all of which except Ms. Sack and Ms. Eckert are funded from public funds), would not have been necessary at all nor would have occurred. That reality, in my view, is what “wasting” and “running up costs, without reasonable cause” is intended to address. Ms. Gratl’s inaction is so egregious that it far surpasses the “extreme caution” threshold. Her behaviour demands court castigation and redress.
[83] After considering the “extreme caution” principle and the need to sanction particularly unreasonable and unacceptable conduct by counsel (as a representative of the court process) whose actions for Ms. T. were inexcusable and reprehensible, I have concluded that a costs sanction is both appropriate and available at an amount between the O.L.A.P. and the private-client rate.
[84] Accordingly, I order that Ms. Gratl shall forthwith, within 30 days, personally reimburse to the O.L.A.P. costs set in the amount of $50,000 and to Ms. Kirkpatrick an identical amount of $50,000, as the case-law allows. (see pages 24 and 25 supra)
E. Procedure in Child Welfare Appeals When Ineffective/Inadequate Counsel at Trial is Pleaded
[85] Since counsel advise me that there does not appear to be any equivalent R. v. Archer protocol in child welfare appeals that addresses an ineffective/inadequate counsel-at-trial allegation, they invited me to consider proposing such a protocol. In the circumstances of how this appeal unfolded, I accept that request, all the while realizing that any suggestion would be entirely obiter and binding on no one.
[86] However, in case my proposals may be persuasive, I offer a few reasons why, in child welfare appeals, a hybrid Archer protocol may be helpful.
[87] First and foremost, delay of proceedings in child welfare actions effect serious and permanent injury upon the child who is at the very centre of the entire child welfare legal process. Continued legal- limbo can only be detrimental to any child’s emotional and relational well-being.
[88] Unlike the Criminal Code, child welfare legislation specifically includes timelines and a clear duty (obligation in fact) on both counsel, the Agency and the court (unlike as in R. v. Archer) . I interpret the legislation and the Family Law Rules as imposing an actual duty on counsel, judges and all child welfare agencies to expedite an early resolution of all C.F.S. Act matters. Indeed in various sections of the Act, strict timelines are imposed; for example, an immediate temporary care hearing; no adjournments beyond 30 days; findings or determination of the case with three months from start of proceedings; s.54 assessments within 30 days; s.57 maximum time periods of temporary care; s.70 - maximum cumulative time periods of society care; these are but a few of the legislated obligations on all participants in a case.
[89] Since it would be so very rare (as to be non-existent) that a ground for appeal citing ineffective/inadequate counsel would ever be brought by an Agency, effectively all appeals alleging that ground for appeal will inevitably be raised by a parent or parents. I also believe that many (if not the majority) of parents forced to respond to child welfare proceedings, are of modest financial means. As a result, it is common that O.L.A.P. is called upon to fund counsel for proceedings involving those parties. It is also common that the O.L.A.P. is involved financially at both the trial and appeal stages of these types of proceedings.
[90] Accordingly since time is of the essence and private funding of appeals is usually rare, I propose the following:
(a) Notice that a ground of appeal contained in the Notice of Appeal alleges ineffective/inadequate counsel must be given to the former trial counsel within seven days of serving the Notice of Appeal on the child welfare Agency (and the O.C.L. if applicable). Service of that notice may be effected upon trial counsel electronically by e-mail, fax, drop box or by courier to trial counsel’s law office. Unlike parties to the original protection or status review proceedings who are not legally trained, trial counsel are personally familiar with all of the previous court proceedings and processes and as officers of the court do not require personal (special) service;
(b) Trial counsel have a duty (to the former client, to the court and especially to the child) to respond electronically by e-mail, fax or courier to all parties to the Appeal and to the court within seven days of service upon him/her, indicating/giving notice that (s)he intends to respond to the allegations;
(c) The court shall forthwith schedule a case conference with all parties and the trial counsel (and his/her own counsel, if one is retained) within 10 days of the filing of trial counsel’s notice. That case conference shall manage inter alia, timelines; disclosure; leave for questioning under oath; obtaining of the trial transcripts issues. Said case conference shall occur within 30 days of the filing of trial counsel’s Notice of Intention to Respond to and participate in the allegation of ineffective/inadequate counsel;
(d) Failure to comply with these timelines or to serve/file a Notice of Intention to Respond shall evoke the presumption that trial counsel has elected not to participate in any way in the appeal process;
(e) A date(s) to argue the ineffective/inadequate-trial-counsel-ground alone may be set by the presiding Justice at the case conference (so as to not further delay the appeal process);
(f) One specific case management Justice need not be appointed to take sole responsibility for the full appeal process (due to circuiting obligations and scheduling protocols in the Region).
G. Appeal Counsel
[91] Despite the extremely unsettling circumstances of this very unfortunate and unacceptably lengthy legal process (K., age 10, has now been in care awaiting resolution of this matter since September 2012 – 4 ½ years, almost one-half of her life), I am heartened by the reality that almost all advocates in Ontario discharge their duties in an adequate, professional and diligent manner, as Ms. Kirkpatrick has done and not at all like the trial counsel complained of. Ms. Kirkpatrick vigorously, thoroughly, diligently and professionally conducted Ms. T.’s appeal from her initial retainer. Her persistence and her attention to detail (and to her client and to the large amounts of documentation that this process required) is more than merely commendable. I thank Ms. Kirkpatrick for her courtesy and civility to other counsel; the compassion, respect and humanity that she extended to her client; and her “fearless and zealous” advocacy for Ms. T.
[92] The legal profession is well served by her and counsel like her.
G.A. Campbell J.
Date: May 30, 2017