Under Rule 57.07 of the Rules of Civil Procedure, RRO 1990, Reg 194, a court has the authority to make costs orders against the lawyer of a party. Such awards are not meant to punish, embarrass, or teach manners. Instead, they’re meant to compensate a client for costs that should have never been incurred in the first place.
That said, Ontario courts say it often and mean it sincerely: ordering costs against a lawyer personally is a last resort. But, from time to time, a lawyer finds themselves on the wrong side of Rule 57.07.
The decision in Gefen v. Gefen, 2022 ONSC 6259 (“Gefen”), confronts this issue, underscoring a basic and recurring principle with respect to practicing law: a lawyer needs client instructions, and sometimes the most important instruction is knowing when none exist.
The Starting Point: A Test to Be Used Sparingly
The governing principles of Rule 57.07 are well settled. The Ontario Court of Appeal summarized the two step test in Galganov v. Russell (Township), 2012 ONCA 410 (“Galganov”):
- Did the lawyer’s conduct cause costs to be incurred unnecessarily?
- If so, is an award of costs against the lawyer personally warranted?
The second step does the real work here. Courts have repeatedly emphasized that costs under Rule 57.07 must be ordered sparingly, with care and discretion, and only in clear cases.
That caution is deliberate. Lawyers are agents, not principals. They are advocates, not insurers of litigation efficiency. Advancing a weak case, pursuing an aggressive strategy, or losing badly, does not, without more, justify personal liability of a lawyer for costs.
Furthermore, this restraint is not theoretical. In the lower court decision for Galganov, counsel’s conduct was disorganized, inefficient, and expensive. The motion judge ordered him to personally pay a substantial portion of the opposing party’s costs. However, the Court of Appeal reversed that order, drawing a critical distinction: acting badly is not the same as acting personally.
Drawing the Line: Acting Without Authority
If Galganov marks the boundary, Gefen shows what happens when that boundary is crossed.
The costs order in Gefen arose out of deeply entrenched estate proceeding involving a 99‑year‑old respondent whose capacity to manage property and instruct counsel was at issue. Despite there being strong indications of the respondent’s incapacity since February 2022, and despite her counsel being put on notice, no opinion was obtained by her counsel with respect to the respondent’s ability to instruct. Pursuant to a Case Management endorsement in September 2022, a capacity assessment was finally obtained. The findings of that assessment were central to the Court’s costs analysis.
During the assessment, the respondent stated that she simply did what her lawyer told her to do. She did not tell him what she wanted because “he already knew.” She could not recall any discussions with him, explaining: “What’s there to discuss? He is the lawyer… I do what he says” (para 63).
There was no meaningful evidence to contradict the respondent’s statements. There was no affidavit from the respondent asserting capacity, nor any objective evidence from counsel setting out any basis for concluding that his client could instruct him. Counsel’s bald assurances were not enough. And as the Court noted, he was not in a position to make those assertions due to his inherent conflict with respect to the issue.
Accordingly, the Court found that the applicant’s motion for a capacity assessment and its costs unnecessary. Multiple capacity assessments had been conducted as far back as 2011. Capacity concerns were not new, speculative, or subtle.
Most critically, the court observed:
“[Counsel’s] resistance to taking steps to either withdraw from the case or seek directions from the Court in the face of [the assessor’s] unrefuted opinion… is puzzling and concerning.” (para 111)
At that point, the problem was no longer advocacy, but a lack of authority. Once credible evidence of incapacity emerged, counsel had two clear options: withdraw or seek court guidance. Doing neither meant continuing to act without authority in the lawyers personal capacity rather than as agent.
While the personal costs award in Gefen was modest. That was no accident, and the Court emphasized that their decision was not about punishment; it was about responsibility (para 112).
Appellate Confirmation: Gefen Is Not an Outlier
The result in Gefen fits comfortably within existing appellate jurisprudence.
In Ferreira v. St. Mary’s General Hospital, 2018 ONCA 247, counsel brought an urgent motion for an injunction without instructions from an incapable client and on misleading material. The Court of Appeal upheld significant personal costs, emphasizing that lawyers do not litigate causes; they litigate on instructions (para 30).
Similarly, in Salisbury v. Sun Life Assurance Company of Canada, 2013 ONCA 182, counsel commenced an action without ensuring the client had capacity and then failed to address the issue for months. The Court of Appeal held that it was incumbent on counsel to confront the capacity problem directly, and personal costs followed (para 3).
In each case, the trigger was the same: acting without authority.
Conclusions
Taken together, the jurisprudence distills a set of unremarkable but essential lessons: capacity to instruct is a threshold issue that cannot be deferred or worked around; zeal, however well intentioned, cannot substitute for authority; and withdrawal where instructions are absent or compromised is not a failure of advocacy, but compliance with professional duty.
Gefen does not lower the high bar to award personal costs against a lawyer. Rather, it illustrates what happens when the bar is plainly crossed. Rule 57.07 should not be regarded as a trap for diligent counsel, but as a safeguard against litigation proceeding without direction. It is an acknowledgment that before a lawyer can properly speak for a client, that client must first be capable of speaking for themselves.
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