Peering behind the Curtain: Costs against Non-Parties

July 18, 2019 Garrett Horrocks Uncategorized Tags: , , 0 Comments

In March of last year, I blogged on the decision in Hunt v Worrod which dealt with predatory marriages and an individual’s capacity to marry.  There have been several developments in that case since then, most recently in a Court of Appeal decision released in June, concerning the issue of costs.

The facts of the case are set out in greater detail in my earlier blog, but a quick refresher may nonetheless be helpful.  The application was commenced by the applicant, by his two litigation guardians, largely for the purposes of challenging the validity of his marriage to the respondent and its effect on her property rights as a spouse of the applicant.  The respondent had been granted a legal aid certificate by Legal Aid Ontario (“LAO”), which funded her legal fees through trial.  Importantly, LAO was not retained as counsel by the respondent.  Rather, the respondent retained private counsel whose fees were funded by LAO.

The applicant was ultimately successful at trial and sought an order for costs against the respondent personally, the respondent’s counsel personally, and LAO.  In his decision on costs, Justice Koke ordered the respondent was to pay the applicant’s costs on a full indemnity basis.  However, he equally noted that, as a result of her limited means and tenuous financial position, it was unlikely that the respondent would be able to pay any amount of that costs award.

The trial judge then turned his mind to the request for costs payable by LAO.  In reviewing the circumstances of LAO’s involvement in the case, the trial judge held that it had failed to carry out its mandate by continuing to fund the respondent’s fees notwithstanding the lack of merit.  The trial judge ordered LAO to pay one-half of the amount of the costs award made against the respondent.

LAO appealed the costs award and was successful.  In its reasons, the Court of Appeal plainly stated that the decision to award costs against LAO could not stand, as it had been made on a misapprehension of LAO’s role in the matter.  While the trial judge had held that LAO purportedly failed to monitor the litigation that it had continued to fund, resulting in an abuse of process, the Court of Appeal took a markedly different view.

Notably, the Court of Appeal identified that LAO’s role was strictly limited to providing funding for the respondent to retain separate counsel in accordance with its statutory mandate.  LAO itself did not act for the respondent, nor was it a party to the initial application.

Had LAO been a party to the litigation, the Court of Appeal held that they would properly have been exposed to a potential costs award, subject to the discretion of the trial judge.  However, in the absence of  evidence of any bad faith on the part of LAO in continuing to fund the litigation, the Court of Appeal held that a costs award against LAO was not appropriate in the circumstances.

Thanks for reading.

Garrett Horrocks

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