The Power of Courts to Award Costs Against a Lawyer Personally in a Criminal Proceeding


It is well-settled in Ontario that in a civil proceeding costs may be awarded against a lawyer personally by virtue of Rule 57.07 of the Rules of Civil Procedure.

Indeed, this week in Nassab v. ErinoakKids, 2017 ONSC 2740, the Ontario Superior Court of Justice (Divisional Court) ordered the lawyer for an unsuccessful judicial review applicant to pay the respondent’s costs, fixed at $50,000.  The applicant's lawyer had, among other things, advanced wholly meritless positions and made serious allegations of impropriety on the part of the respondent with no factual or legal basis for doing so.

And it was this week also that the Supreme Court of Canada considered costs awards against lawyers in a different context:  a court's ability at common law to make a costs order against a lawyer in a criminal proceeding.  

See Quebec (Criminal and Penal Prosecutions) v. Jodoin, 2017 SCC 26 (CanLII).

The Power of the Courts

The courts have the power to maintain respect for their authority. This includes the power to manage and control the proceedings conducted before them.

 R. v. Anderson, 2014 SCC 41 (CanLII), [2014] 2 S.C.R. 167, at para. 58.

A court therefore has an inherent power to control abuse in this regard (Young v. Young, 1993 CanLII 34 (SCC), [1993] 4 S.C.R. 3, at p. 136) and to prevent the use of procedure “in a way that would be manifestly unfair to a party to the litigation before it or would in some other way bring the administration of justice into disrepute”:

 Canam Enterprises Inc. v. Coles (2000), 2000 CanLII 8514 (ON CA), 51 O.R. (3d) 481 (C.A.), at para. 55, per Goudge J.A., dissenting, reasons approved in 2002 SCC 63 (CanLII), [2002] 3 S.C.R. 307.

This is a discretion that must, of course, be exercised in a deferential manner (Anderson, at para. 59), but it allows a court to “ensure the integrity of the justice system”

Morel v. Canada, 2008 FCA 53 (CanLII), [2009] 1 F.C.R. 629, at para. 35.

It is settled law that this power is possessed both by courts with inherent jurisdiction and by statutory courts.

Anderson, at para. 58.

It is therefore not reserved to superior courts but, rather, has its basis in the common law.

Myers v. Elman, [1940] A.C. 282 (H.L.), at p. 319.

There is an established line of cases in which courts have recognized that the awarding of costs against lawyers personally flows from the right and duty of the courts to supervise the conduct of the lawyers who appear before them and to note, and sometimes penalize, any conduct of such a nature as to frustrate or interfere with the administration of justice.

Myers, at p. 319; Pacific Mobile Corporation v. Hunter Douglas Canada Ltd., 1979 CanLII 201 (SCC), [1979] 1 S.C.R. 842, at p. 845; Cronier, at p. 448; Pearl v. Gentra Canada Investments Inc., 1998 CanLII 12881 (QC CA), [1998] R.L. 581 (Que. CA), at p. 587.

As officers of the court, lawyers have a duty to respect the court’s authority. If they fail to act in a manner consistent with their status, the court may be required to deal with them by punishing their misconduct.

This power of the courts to award costs against a lawyer personally is not limited to civil proceedings, but can also be exercised in criminal cases (Cronier). This means that it may sometimes be exercised against defence lawyers in criminal proceedings, although such situations are rare:

R. v. Liberatore, 2010 NSCA 26 (CanLII), 292 N.S.R. (2d) 69; R. v. Smith (1999), 133 Man. R. (2d) 89 (Q.B.), at para. 43; Canada (Procureur général) v. Bisson, [1995] R.J.Q. 2409 (Sup. Ct.); M. Code, at p. 122.



When a Costs Award Against the Lawyer is Appropriate

An award of costs against a lawyer personally can be justified only 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.

Quebec (Criminal and Penal Prosecutions) v. Jodoin, 2017 SCC 26 (CanLII), at para. 29.

In Jodoin the lawyer knowingly used judicial resources for a purely dilatory purpose with the sole objective of obstructing the orderly conduct of the judicial process in a calculated manner. The Supreme Court of Canada upheld the lower court’s costs award of $3000.00 against the lawyer personally.

As the Superior Court in Jodoin rightly cautioned (2013 QCCS 4661 (CanLII):

“Take a rigorous approach to the criminal law, fight tooth and nail for your clients, be demanding of the prosecution so that it makes its entire case competently, but face the music so that, in an overburdened judicial system in which each person’s time must be used sparingly and efficiently, cases move forward.” 


Criminal lawyers be warned.


Stuart O'Connell, O'Connell Law Group (leadersinlaw.ca).





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