C.A.S. of the R.M.of W. v C.T.and J.B. 2017 ONSC 318 awarded personal court costs of $100,000 against a lawyer for her role in a custody battle involved in the Children’s Aid Society.
The court found that the lawyer’s tactics and strategy had 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.
| In Rand Estate v Lenton (2009 ONCA 251 (CanLII)) 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 (CanLII)) at para 22. This decision reiterates the “extreme caution principle” set out in Young v Young (1993 CanLII 34 (SCC),  4 SCR 3 at para 263) which was also followed by Justice Hackland, in Carleton v Beaverton Hotel, 2009 CanLII 92124 (ON SCDC),  96 OR (3d) 391; 314 DLR (4th) 566 where, at para 15, he noted:
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,
| In F. (V.) v F. (J.) (2016 ONCJ 759 (CanLII) 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)