Costs Denied Against Law Society For Abandoned Charges
An attorney’s motion for costs against the Law Society of Upper Canada was denied by the Tribunal Appeal Division
the appeal is dismissed. There was ample reason for the hearing panel to deny the Lawyer an award of costs as against the Law Society, particularly having regard to the onus which lies upon the Lawyer under the provisions of Rule 25.01 of the Rules of Practice and Procedure, and, accordingly, the decision was reasonable. Similarly, the award of costs against the Lawyer under the second Order was a reasonable and justifiable exercise of the hearing panel’s discretion relating to costs of the motion which gave rise to the first Order.
The complaint was filed by a former client who sought refugee status
A Proceeding Management Conference (“PMC”) was set for April 13, 2015 but adjourned to April 27 after the Lawyer retained Pantea Jafari as his counsel. By letter dated April 29 the prosecutor advised the Lawyer that she was withdrawing the Notice of Application and enclosed her Notice of Abandonment. She had earlier advised the Lawyer that the Application would be abandoned, in a telephone call on April 24, and so advised the Tribunal at the PMC held on April 27, 2015.
But
The Lawyer filed a Notice of Motion seeking an award of costs against the Law Society on a number of grounds which can be summarized as an allegation that the Law Society failed, from 2013 forward, to discover the futility of its case. He submitted to the hearing panel that high-handed conduct by the Law Society should merit an award of costs in his favour for the hardship, time and expenditure incurred by him in defending against charges known to be spurious since January 2013.
The governing law
Under Rule 25.01, the onus is on the Lawyer to establish either that: (i) the proceeding was unwarranted; or (ii) the Law Society “caused costs to be incurred without reasonable cause or to be wasted by undue delay, negligence or other default.” Even if the test is met under either branch, the panel retains the residual discretion to refuse to award costs.
The hearing panel did not find the proceeding to be unwarranted as there existed an arguable evidentiary basis on which a panel might reasonably have concluded that the Lawyer engaged in misconduct. There was no evidence of bad faith or patent unreasonableness.
Neither did the hearing panel find that the test for costs was met under the second branch. The panel noted that discontinuance of an application alone is not a basis on which to award costs. Discipline Counsel is not being procedurally wasteful or taking an unreasonable position by withdrawing an application on the basis that there is no longer a reasonable prospect of obtaining a finding.
A parting shot
The second matter of concern to us is the Lawyer’s repeated use of egregious and demeaning language when describing members of the PAC, the hearing panel, Discipline Counsel and investigators employed by the Law Society. While we disregarded this language in reaching our decision, we observe that unnecessary and inappropriate use of rude, abusive and unfounded descriptive language does nothing to advance the cause of the party engaging in such behavior. The Law Society Tribunal expects licensees and counsel to conduct themselves in accordance with the high standards of civility and proper decorum that are contemplated by our Rules of Professional Conduct.
(Mike Frisch)