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Law not always fair to litigants who retain counsel | Gary Joseph

Thursday, January 23, 2020 @ 12:51 PM | By Gary Joseph


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Gary Joseph
Recently I commented on what I perceived to be issues arising from the increasing presence of self-represented litigants in family law matters. In that column I commented on the Canadian Judicial Council’s Statement of Principles. I raised concerns with respect to these principles. I stated the following:

“I submit that in some respects the principles are neglectful of the individual who retains counsel, incurs significant cost and is met with a judge who ‘accommodates’ the needs of the self-represented opposite party.”

In Conroy v. Vassel 2020 ONCA 14, the appellant, acting for himself, appealed the dismissal of his action for spousal support and other related matters. However, as noted by the Court of Appeal, “… his real concern is the costs award made by the motion judge.”

Justice Michael Penny, on a motion brought by the defendant (represented party) to strike the pleadings of David Conroy as disclosing no cause of action, determined that the two claims asserted by the self-represented litigant in the civil action should be struck out but that one of them may proceed (but as a family law application for spousal support under the Family Law Act and Rules). The entirety of Conroy’s claims in the civil action therefore were struck out. Not surprisingly the defendant sought costs, submitting inter alia that the plaintiff’s entire claim was misconceived. The defendant sought substantial indemnity costs of approximately $16,500 on top of an earlier $5,000 cost award made against Conroy. Justice Penny found on the issue of costs as follows:

“In assessing costs, important inputs are what the losing party might reasonably expect to pay and the means of the losing party to pay. The Order of Belobaba J. traversing this matter to the Family Law Division should have given the Plaintiff some insight into the need to assert his claim in accordance with the Family Law Division law and practice. The $5,000.00 cost award of Belobaba J. was apparently not a sufficient message. I find that partial indemnity costs of $7,500.00 for the dismissal of the Plaintiff’s entire action is an appropriate award that recognizes the needless costs imposed on the Defendant and the Plaintiff’s limited means.”

The Court of Appeal for Ontario disagreed. The panel found that “in our view, there was no clear message [referencing the earlier Order of Superior Court Justice Edward Belobaba] but rather confusion on the part of this in person litigant.”

The court went on the reduce the costs of the motion from $7,500 to $2,500. Further, no order as to costs was made on the appeal. I recognize that the Court of Appeal was acting on precedent articulated by the Supreme Court of Canada when it adopted the principles in the case of Pintea v. Johns 2017 SCC 23. However, the bottom line in this matter is that an in-person litigant sought relief in a statement of claim that disclosed no cause of action. Further, this in-person litigant sought family law relief in the wrong court. The defendant was put to the expense of retaining counsel and incurred at least $16,500 in costs (her claim for substantial indemnity costs) in having a claim dismissed with one remaining issue referred to the Family Law Division.

In ordinary circumstances, I submit, that had this plaintiff been represented by counsel, a more substantial award of costs on the motion would likely have been made and the Court of Appeal for Ontario would not have been so accommodating in significantly reducing the cost award. The defendant must now question why she bothered to retain counsel at all.

With great respect, what may appear fair for the in-person litigant is somewhat unfair to the litigant who was forced to retain counsel to respond to claims that do not exist and claims that were brought in the wrong court. Issues similar to this must be addressed. Access to justice is important as is fairness to both sides.

Gary S. Joseph is the managing partner at MacDonald & Partners LLP, family law practitioners.

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