On June 27, 2019, the Ontario Court of Appeal overturned the first ever non-party costs award against Legal Aid Ontario (“LAO”). In the Family Court decision below, the application judge awarded costs against LAO on the basis of abuse of process, holding that LAO failed to adequately monitor and assess the merits of the respondent wife’s defence, which LAO was funding. In deciding that the costs award against LAO could not stand, The Honourable Justice Pepall, writing for the Court of Appeal, held that: (a) the application judge fundamentally misconstrued LAO’s role in the proceedings as a non-party statutory funder of litigation; (b) the application judge made the award of costs without an evidentiary basis for doing so; (c) the legal aid system in Ontario permits LAO to rely on the opinions of private bar lawyers who have carriage of legal aid files; (d) LAO is not required to engage in a detailed factual and legal analysis independent of and disconnected from the private bar lawyer’s legal opinion; (e) the costs award against LAO would frustrate the statutory scheme for legal aid in Ontario; and (f) even if a failure to monitor could anchor a finding of abuse of process, any conclusion of improper or inadequate conduct by LAO in its funding role would require the impermissible review of privileged reporting and opinion letters from the private bar lawyer acting for the legal aid client.
The case is otherwise notable for giving direction on what threshold conduct is required by non-parties to warrant an award of costs on abuse of process grounds, and also for establishing that leave is not required to appeal such costs awards.
Fasken successfully represented LAO on the appeal with a team comprised of Gideon C. Forrest and Mitch Stephenson, with assistance from Samuel R. Rickett, Murray Braithwaite, and the lawyers at the General Counsel’s Office at LAO. The Family Lawyers Association and Ontario Association of Child Protection Lawyers intervened on the appeal.
