Court File and Parties

Court File No.: 54677/13 Date: 2018-09-25 Superior Court of Justice - Ontario

Re: Timothy G. Mitchinson, Applicant And: Marshall Kirewskie, Barristers and Solicitors, Respondent

Before: The Honourable Mr. Justice R. B. Reid

Counsel: The Applicant self-represented The Respondent self-represented

Heard: August 28, 2018

Reasons for Decision on Rule 57.07 Motion

[1] The Applicant was the plaintiff in a civil action against his trade union and six of its officers. The Respondent law firm, through one of its principals, Paul Marshall, acted as counsel for the Applicant in that action.

[2] The action was administratively dismissed. The Applicant changed counsel. The motion to set aside the dismissal of the action was unsuccessful. A costs order was made against the Applicant in favour of the defendants.

[3] The full and final payment of costs was made by the Applicant in the amount of $31,958.91.

[4] The Applicant seeks an order pursuant to rule 57.07(1) of the Rules of Civil Procedure[^1] that the costs for which the Applicant was made responsible should be reimbursed to him by the Respondent.

Procedure in the civil action:

[5] On behalf of the Applicant, the Respondent issued a statement of claim on December 15, 2010. In it, the Applicant claimed damages for libel and slander and for conspiracy to injure. Statements of defence were filed by July 5, 2011. According to rule 76.03, the Applicant was required to provide an affidavit of documents by July 25, 2011. That did not happen. As well, the Applicant failed to serve a notice of readiness for pretrial conference as required by rule 76.09. A status notice was issued on April 15, 2013 and apparently received by the Respondent on April 22, 2013. It was delivered to the Applicant by the Respondent on May 8, 2013.

[6] The parties discussed an appropriate response to be put forward at the status hearing which the Respondent suggested would include evidence of counsel’s delay and also the personal circumstances of the Applicant and his family which prevented the Applicant from giving his full attention to the case. The Applicant subsequently directed the Respondent that the Applicant’s personal situation should not be referred to at the status hearing.

[7] A status hearing was set for July 18, 2013, then adjourned to October 24, 2013 and ultimately to December 3, 2013 when it was heard.

[8] In July 2013, the Applicant contacted another lawyer to take over carriage of the case. That lawyer recommended that the Applicant allow the Respondent to deal with the status hearing. The Applicant disagreed. New counsel was retained. Materials were filed and new counsel made submissions at the status hearing on December 3, 2013.

[9] In her decision of January 9, 2014 following the status hearing, Justice C. A. Tucker concluded that the Applicant failed to show cause why the action should not be dismissed for delay pursuant to rule 48.14(13)(b)[^2] and therefore the action was dismissed. She observed that the Applicant’s only explanation for the delay was the failure of the Respondent to act in compliance with the rules but without any explanation for the inaction. She noted that no affidavit was filed by the Respondent, and that the Applicant had not taken steps to advance the matter after receipt of the status notice either by retaining other counsel or taking any other action.

Positions of the parties:

[10] The Applicant submits that the dismissal of his civil action occurred as a result of consistent and unexplained delay on the part of the Respondent in proceeding with the civil action in a timely way. The Applicant notes that he made numerous requests for updates and ultimately relied on the Respondent to do what was legally necessary to prosecute the civil proceeding and abide by the Rules so that his action could proceed to a conclusion on the merits. He submits that a direct result of the failure on the part of the Respondent to do so was the dismissal of his action and the consequent costs award against him. Under those circumstances, the Applicant seeks an order pursuant to rule 57.07 making the Respondent responsible for the costs award.

[11] In response, the Respondent notes that rule 57.07 is not a substitute for an action alleging solicitor’s negligence in which certain legal elements must be established including the establishment of a standard of care and a breach of a duty of care leading directly to damages. In such an action, procedural safeguards exist such that the Respondent would be able to defend himself on a full record and including expert evidence. The Respondent notes that the materials filed on the status hearing were prepared without his input by other counsel on the instructions of the Applicant and did not include any explanation for the delay on its part.

Analysis:

[12] In general as to costs, the rules provide for a system of “costs-shifting” in which, usually, the successful party is entitled to have a portion of its costs paid by the unsuccessful party. Factors to be considered in exercising the court’s discretion to award costs pursuant to section 131 of the Courts of Justice Act[^3] are set out in rule 57.01.

[13] Typically, a lawyer is not made responsible for the costs payable by the lawyer’s client. However, the court’s discretion to impose that responsibility is found in rule 57.07.

[14] Subrule 57.07(1) provides as follows:

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.

[15] In this case, the Applicant has requested an order pursuant to clauses 57.07(1)(a) and (b).

[16] An order has already been made that the account for legal fees and disbursements rendered by the Respondent to the Applicant should be subject to assessment by an assessment officer. Clearly, an assessment officer has both jurisdiction and expertise to deal with such matters. In my view, it is not necessary or appropriate for this court to make an order under clause (a) of subrule 57.07(1) thereby usurping the jurisdiction of the assessment officer. Moreover, the court’s jurisdiction under the rules appears to be less nuanced than that of the assessment officer in that the court has power to disallow costs rather than consider whether there should be an adjustment in costs up to and including the full amount charged.

[17] The main focus of submissions has been on the question of whether the Respondent should be ordered to reimburse the Applicant for the costs paid to the defendants in the civil action.

[18] The rule relates to “a lawyer for a party” and the Respondent takes the position that, since it is a law firm, the rule does not apply. It refers to rule 1.03 in which a lawyer is defined as a person authorized under the Law Society Act[^4] to practice law in Ontario. However, this motion occurs as part of the Applicant’s dispute about his retainer with the Respondent (as well as with subsequent counsel) which began in May 2016. Not until the Respondent’s factum was filed on August 21, 2018 was the applicability of rule 57.07 to the Respondent raised. The allegations in the application have been focused on the actions of Paul Marshall. Mr. Marshall has appeared and made submissions. There is no surprise or unfairness to the Respondent or to Mr. Marshall. The Applicant is self-represented and some latitude as to matters of procedure is appropriate. As well, sub rule 1.04(1) provides that the rules are to be liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits. Therefore, I am prepared to consider this motion as a request that Paul Marshall be responsible personally for the costs ordered against the Applicant.

[19] The Supreme Court of Canada recently considered the principles applicable when a request is made for a lawyer to be personally responsible for costs. In Quebec (Director of Criminal and Penal Prosecutions) v. Jodoin[^5] at paragraph 18, Justice Gascon confirmed that:

[The] awarding of costs against lawyers personally flows from the right and duty of the courts to supervise the conduct of lawyers who appear before them and to note, and sometimes penalize, any conduct of such a nature as to frustrate or interfere with the administration of justice. [Citations omitted] As officers of the court, lawyers have a duty to respect the court’s authority. If they fail to act in a manner consistent with their status, the court may be required to deal with them by punishing their misconduct.

[20] Further, at paragraph 20, the court stated:

The power to control abuse of process and the judicial process by awarding costs against a lawyer personally applies in parallel with the power of the courts to punish by way of convictions for contempt of court and that of law societies to sanction unethical conduct by their members.

[21] The threshold for making an order to award costs against a lawyer personally is a high one, to be exercised in exceptional circumstances. Examples include cases that involve abuse of process, frivolous proceedings, misconduct, dishonesty or actions taken for ulterior motives where the effect is to seriously undermine the authority of the courts or seriously interfere with the administration of justice. Virtually all the cases involving an order to pay costs personally, whether under the Rules of Civil Procedure or otherwise, are based on a marked and unacceptable departure from the standard of reasonable conduct expected of a lawyer in the judicial system. Mistakes, negligence or errors in judgment are not typically sufficient to justify the costs award.

[22] In this case, there is no evidence that the actions of Mr. Marshall in court were sufficient to make him subject to a sanction by way of personal responsibility for costs. There is no suggestion that he acted in a way that was dishonest, in bad faith or that he abused the litigation process. In fact, the allegations are quite specific in that he failed to properly protect the interests of the Applicant as counsel of record by complying with the timelines set out in the rules and that as a result of that failure, the action was dismissed and the costs award made.

[23] Mr. Marshall submitted that the Applicant could have launched a lawsuit alleging professional negligence. In that action, Mr. Marshall would have had the opportunity to respond fully to any claims made including calling defence evidence as to the applicable standard of care and the alleged breach of any such standard.

[24] Whether the conduct of Mr. Marshall was negligent in his representation of the Applicant is not a question that this court must answer. Nor is it appropriate for this court to consider whether alternatives are available to the Applicant by way of a civil claim, a complaint to the Law Society of Ontario or otherwise. As the Applicant said in submissions, he is entitled to choose whatever legal courses of action he feels are appropriate to deal with the issue. The parameters guiding the court’s consideration of this motion under rule 57.07 are defined by the rule itself and the applicable case law.

[25] In submissions, the Applicant requested that the Respondent be reported by me to the Law Society of Ontario based on misconduct in his dealings on behalf of the Applicant. The Applicant referred to a March 31, 2010 letter from Malcolm Heins, Chief Executive Officer of the Law Society of Upper Canada (now the Law Society of Ontario) to Chief Justice Smith of the Superior Court of Justice as to the process available to judges and the options available within the Law Society for either disciplinary action or mentoring. The Applicant’s view was that only a judge could make that referral. I indicated during submissions that the vast majority of complaints against lawyers are by clients and that if the Applicant felt a complaint was justified based on the past conduct of the Respondent, he could do so personally. There was no conduct in court on the part of the Respondent firm or any of its principals that would justify a report to the Law Society.

[26] In summary, the Applicant has options for challenging the conduct of his case by the Respondent. As to the option of a costs award under rule 57.07, I conclude that this case does not meet the high threshold contemplated by the governing legal authorities. Regardless of any other remedies the Applicant may have against the Respondent, the Respondent’s actions did not have the effect of seriously undermining the authority of the courts or seriously interfering with the administration of justice. Therefore, the Applicant’s motion is dismissed.

Costs:

[27] I encourage the parties to resolve any issue as to costs consensually. In the event they do not, they may make brief submissions on costs, totalling no more than 10 pages, according to the following timetable:

• The Respondent is to serve the Applicant with written costs submissions and a Bill of Costs on or before October 12, 2018.
• The Applicant is to serve the Respondent with written costs submissions and a Bill of Costs on or before October 26, 2018.
• The Respondent is to serve the Applicant with any responding submissions on or before November 9, 2018.

[28] All submissions are to be filed with the court no later than November 12, 2018. If submissions are not received by that date or any agreed extension, the matter of costs will be deemed settled.

Reid J.

Date: September 25, 2018

[^1]: R.R.O. 1990, Reg. 194 [^2]: This was the subrule applicable at the time. Rule 48 has been amended and renumbered. [^3]: R.S.O. 1990, c. C.43 [^4]: R.S.O. 1990, c. L.8 [^5]: 2017 SCC 26, [2017] 1 S.C.R. 478 (S.C.C.)