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BARRISTERS AND SOLICITORS - Liability - Conduct of action - Liability for costs

Friday, May 12, 2017 @ 1:21 PM  


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Appeal by the Director of Criminal and Penal Prosecutions from a judgment of the Quebec Court of Appeal setting aside in part a decision awarding costs against a lawyer personally in a criminal proceeding. Jodoin was an experienced criminal lawyer and a member of the Barreau du Québec. In several impaired driving cases joined for hearing on a single motion for disclosure of evidence, Jodoin filed two series of motions on the same day for writs of prohibition against two judges of the Court of Québec, each time on questionable grounds of bias. Before the disclosure hearing even began, Jodoin had the office of the Superior Court stamp a series of motions for writs of prohibition in which he challenged the jurisdiction of the Court of Québec judge who was to preside over the hearing, alleging bias on the judge’s part. His motions were put aside after the parties learned that another judge would be presiding over the hearing instead. During a break in the hearing, Jodoin drew up a new series of motions for writs of prohibition, this time challenging the second judge’s jurisdiction and alleging, once again, bias on the judge’s part after he rejected Jodoin’s objection to the Crown calling its expert witness. In response to that unprecedented strategy, which resulted in the postponement of the hearing in the Court of Québec, the Crown asked not only that the motions be dismissed, but also that the costs of the motions be awarded against the respondent personally. The Superior Court held that awarding costs against a lawyer personally could be justified in the case of a frivolous proceeding that denoted a serious and deliberate abuse of the judicial system. The judge expressed the opinion that Jodoin’s intentional acts were indicative of such abuse and constituted exceptional conduct that justified making an award against him personally. The Court of Appeal agreed that the motions for writs of prohibition should be dismissed, but nonetheless set aside the award of costs against Jodoin personally, finding that his conduct did not satisfy the strict criteria developed by the courts in this regard.

HELD: Appeal allowed. The courts had the power to maintain respect for their authority. This included the power to manage and control the proceedings conducted before them. The awarding of costs against lawyers personally flowed from the right and duty of the courts to supervise the conduct of the lawyers who appeared before them and to note, and sometimes penalize, any conduct of such a nature as to frustrate or interfere with the administration of justice. This power of the courts to award costs against a lawyer personally was not limited to civil proceedings but could also be exercised in criminal cases. The power to control abuse of process and the judicial process by awarding costs against a lawyer personally applied 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. An award of costs against a lawyer personally could be justified only on an exceptional basis where the lawyer’s acts had seriously undermined the authority of the courts or seriously interfered with the administration of justice. This high threshold was met where a court had before it an unfounded, frivolous, dilatory or vexatious proceeding that denoted a serious abuse of the judicial system by the lawyer, or dishonest or malicious misconduct on his or her part, that was deliberate. The motion judge properly exercised his discretion in awarding costs against Jodoin personally. Jodoin used extraordinary remedies for a purely dilatory purpose with the sole objective of obstructing the orderly conduct of the judicial process in a calculated manner. It was therefore reasonable for the judge to conclude that he had acted in bad faith and in a way that amounted to abuse of process, thereby seriously interfering with the administration of justice. Finally, the procedural safeguards were observed in this case: Jodoin was given prior notice of the Crown’s intention to seek an award of costs against him personally, as well as an opportunity to make separate submissions on costs. The Court of Appeal was wrong to substitute its own opinion for that of the Superior Court on this issue. The Superior Court correctly identified the applicable criteria and properly exercised the discretion it had in such matters. The Court of Appeal should not have intervened in the absence of an error of law, a palpable and overriding error of fact or an unreasonable exercise of his discretion by the motion judge.

Quebec (Criminal and Penal Prosecutions) v. Jodoin, [2017] S.C.J. No. 26, Supreme Court of Canada, McLachlin C.J. and Abella, Moldaver, Karakatsanis, Wagner, Gascon, Côté, Brown and Rowe JJ, May 12, 2017. Digest No. TLD-May82017015SCC