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The Canadian Bar Association held its Canadian Legal Conference and Expo on August 14-16 in Halifax, Nova Scotia. One of the keynote speakers was the Right Honourable David Johnston, Governor General of Canada. 

Johnston is a former dean of law at the University of Western Ontario, and is a lawyer who knows that of which he speaks. He commented that as lawyers we enjoy a social contract with society whereby in return for self-regulation and a monopoly over the practice of law, we are duty bound to improve justice and serve the public good.

He further commented that Canadians in all provinces wait too long to have their cases heard in court, and face unacceptable delays once there. He singled out Ontario for the worst court processing times in the country, and said that despite efforts to reverse the trend the pace of change is slow.

Johnston said judges and lawyers must act with urgency to break through what criminologists have called a court culture of complacency, if they hope to streamline the process.

Other comments of note by Johnston were that Canada’s law schools are losing touch with practicing lawyers in the real world, and rely too heavily on narrow criteria, such as the standardized Law School Admissions Test (LSAT), for selecting new students.

He also lamented the lack of work-life balance in law firms that penalize those with a family. 

Johnson and another esteemed keynote speaker, the Honourable Madam Justice Beverley McLachlin, Chief Justice of Canada, both commented that the profession must make legal services more affordable and accessible to Canada’s millions of middle-class citizens.

He offered some good advice in suggesting we must engage our most innovative thinking to redefine professionalism and regain our focus on serving the public.

You can read more about Johnson’s speech and reaction to it in articles by Richard Foot for Postmedia News or in the Globe and Mail.

Sharon Davis - Click here for more information on Sharon Davis. 

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A September 8, 2009 endorsement of Justice D.M. Brown helps to clarify the costs of capacity litigation.

 Fiacco v. Lombardi, 2009 CanLII 46170 (ON S.C.) involves four siblings who disputed the management of their mother’s property. She executed a continuing power of attorney for property appointing all four of her children as her attorneys to act jointly. That didn’t go so well.

The mother suffers from dementia. In 2008, the four children entered into contested guardianship litigation over their mother; two were appointed guardians by on January 23, 2009 by Order of Cameron J. That round of litigation cost the mother $30,022.22.

The two children who were not appointed were ordered to provide information about their mother’s assets and the original will of their mother to the guardians, and to transfer assets to the guardians. They did not act quickly.

Justice Brown states, at paragraph 14, that “The view…that the Order did not require compliance forthwith was dead wrong: when a court appoints guardians of the property of an incapable person, any other person with notice of the order is required to deliver up immediately to the guardians all property of the incapable person that he or she might possess.”

At paragraph 10, His Honour states that the “respondents acted contrary to their obligations under the SDA [Substitute Decisions Act] and they obstructed their mother’s guardians in discharging their statutory duties.”

The SDA at sections 33.1 requires guardians to make reasonable efforts to determine if an incapable person has a will; and sections 33.2(1) and (2) require a person who has the incapable person’s will to deliver it to the guardian “when required by the guardian.”

The Court did not approve of the children seeking further funds ($29,154.14) from their mother’s estate to “fund their continuing sibling rivalry.”

Justice Brown emphasized that “capacity litigation should reflect the basic purpose of the SDA – to protect the property of a person found to be incapable and to ensure that such property is managed wisely so that it provides a stream of income to support the needs of the incapable person: SDA, sections 32(1) and 37.”

His Honour states that members of the Bar should not presume that all parties to contested capacity litigation will have their costs paid by the estate of the incapable person.

This endorsement emphasizes that family fights cost everyone involved. 

Enjoy the weekend. 

Jonathan

Jonathan Morse - Click here for more information on Jonathan Morse.

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Section 131 of the Courts of Justice Act establishes the authority for the Court to award costs. Section 131 states that the Court has absolute discretion in awarding costs, subject to the provisions of an Act or the rules of court. 

Before July 2005, the Rules of Civil Procedure provided some sense of certainty to the Court’s broad discretion in awarding costs as the Rules provided a costs grid. The costs grid suggested that costs were to be determined by an hourly rate multiplied by the time spent. In 2004, the Court of Appeal in Boucher v. Public Accountants Council set forth the general principle as to the fixing of costs pursuant to Rule 57.01 and the costs grid. With respect to costs, the Court stated that the overall “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”. Subsequently, in July 2005, the Rules were amended. 

The amendment to the Rules abolished the costs grid and expanded on the list of factors, set out in Rule 57.01, which the Court may consider before making a cost award. Rule 57.01 was now expanded to include the principle of full indemnity and the reasonable expectations of an unsuccessful party to pay a cost award.

The principle of the reasonable expectations of an unsuccessful party to pay a cost award appears to provide the parties with some flexibility in obtaining the maximum cost award by permitting the successful party to establish the reasonable expectations of the unsuccessful party.  

Thanks for reading, and have a great day!

Rick