Cost Awards against Lawyers: What Does Jordan Have to Do with It?
On May 12, 2017, the Supreme Court of Canada rendered its decision in Quebec (Criminal and Penal Prosecutions) v. Jodoin, 2017 SCC 26, reinstating an award of costs against a criminal defence lawyer who was found to have used a proceeding to create delay. Though it arises in the criminal context, the case confirms the principles applicable to cost awards against lawyers in both civil and criminal proceedings. It is one that all lawyers should know.
Me Jodoin, an experienced criminal lawyer, was representing 10 clients charged with impaired driving in 12 cases. The cases were joined for a hearing scheduled in the Court of Quebec on the disclosure of evidence. The morning of, before the hearing began, Me Jodoin had motions for writs of prohibition issued in Superior Court, alleging bias on the part of the Court of Quebec judge scheduled to hear the disclosure motion. Upon service and filing, the motions for writs of prohibition would have automatically suspended the proceedings before the Court of Quebec until the Superior Court ruled on them.
Before the motions were served, the parties learned that another judge would be presiding over the hearing in the Court of Quebec. The hearing began and the Crown stated its intention to call its expert witness. Me Jodoin objected on the basis that he had not received the notice required by s. 657.3(3) of the Criminal Code and that he had not had an opportunity to consult the expert’s resumé. He requested a postponement. The judge allowed a brief adjournment until after the lunch break, at which time the Crown’s examination in chief would begin. During the lunch break, Me Jodoin prepared and had the Superior Court issue a new series of motions for writs of prohibition, once again alleging bias. As a result, the second judge had no choice but to suspend the proceedings. Crown counsel informed Me Jodoin that the Crown intended to seek costs against him personally on the grounds that the motions were dilatory and an abuse of process.
The Superior Court dismissed the motions for writs of prohibition against the Court of Quebec judge as unfounded, frivolous and of questionable legal value for an experienced lawyer. On the issue of costs, the judge framed the appropriate inquiry as whether what was before him was a “frivolous proceeding that denotes a serious abuse of the judicial system”; an abuse that was “deliberate”. He found Me Jodoin’s conduct particularly egregious in that it was clearly motivated by his desire to obtain a postponement, and not by a sincere belief that the Court of Quebec judges targeted by his motions were biased. The judge also considered that Me Jodoin had filed similar motions in 2011 and made reference to the Crown’s desire to send a message to certain defence lawyers. The Superior Court assessed costs against Me Jodoin personally in the amount of $3,000 ($250 per case).
The Court of Appeal agreed that the motions were frivolous, unfounded and abusive, but concluded that the situation did not have the exceptional character required by the case law to warrant an award of costs against Me Jodoin.
Writing for a 7-judge majority, Gascon, J. reiterated the well-established principle that courts – both statutory and with inherent jurisdiction – have the power to maintain respect for their authority and to punish conduct that threatens the proper administration of justice. This includes awarding costs against lawyers personally, and applies in parallel with the power to punish for contempt and the power of law societies to sanction unethical conduct.
Gascon, J. emphasized that the threshold for exercising the power is a high one, reserved for serious misconduct. Courts must always take into account the duties lawyers owe to their clients. Cost awards against lawyers personally can only be justified “on an exceptional basis where the lawyer’s acts have seriously undermined the authority of the courts or seriously interfered with the administration of justice.” This high threshold is met where a court has before it an “unfounded, frivolous, dilatory or vexatious proceeding that denotes a serious abuse of the judicial system by the lawyer” or “dishonest or malicious misconduct on his or her part, that is deliberate”. A lawyer “may not knowingly use judicial resources for a purely dilatory purpose with the sole objective of obstructing the orderly conduct of the judicial process in a calculated manner” (para. 29).
Gascon, J. also identified two additional “guideposts” to the exercise of the court’s power. First, different considerations might apply depending on the context. In particular – civil lawyers take note – lawyers in civil matters have “an ethical duty to encourage compromise and agreement as much as possible”. In contrast, a defence lawyer has no obligation to help the Crown in the conduct of its case: “It is the very essence of the role of a defence lawyer to challenge, sometimes forcefully, the decisions and arguments of other players in the judicial system in light of the serious consequences they may have for the lawyer’s client.” (para. 32).
Second, courts must confine themselves to the facts of the case before them and not allow the matter to devolve into a trial of the lawyer’s whole career. Evidence of prior conduct can only be relevant in establishing a lawyer’s intention and his or her knowledge that a particular proceeding was unfounded (para. 33).
Applying these principles to the facts of the case, the majority held that the Superior Court had properly exercised its discretion in awarding costs against Me Jodoin personally and that the Court of Appeal was wrong to intervene. Justices Abella and Côté issued joint dissenting reasons. While they agreed with the principles as set out by Justice Gascon for the majority, in their view the conduct in question did not rise to the “rare and exceptional” level that would justify an award of costs. They noted in particular that the judge seemed to be making an example of Me Jodoin in an attempt to discourage other defence lawyers from the same practices, which indicated that the conduct might not have been that exceptional.
While the majority disagreed that this is what occurred, in its view, that the conduct might be part of the larger problem of “the culture of complacency toward delay that impairs the efficiency of the criminal justice system” that the majority denounced in R. v. Jordan, 2016 SCC 27 only served to bolster the Superior Court’s decision:
[…] In Jordan, the Court emphasized the importance of timely justice and noted that all participants in the criminal justice system must co‑operate in achieving reasonably prompt justice. From this perspective, it is essential to allow the courts to play their role as guardians of the integrity of the administration of justice by controlling proceedings and eliminating unnecessary delay. That is what the Superior Court did here. (para. 56)
Though the threshold is a high one, the message is clear: lawyers should expect any conduct associated with creating delay – in the civil or criminal context – to be viewed through the post-Jordan lens.