No Costs

An attorney whose bar case was dismissed is not entitled to payment of his costs, according to a recent decision of  Larry Banack for the Upper Canada Law Society Tribunal Hearing Division

I dismissed a Notice of Application issued by the Law Society naming Mr. Burtt as Respondent.

In doing so, I concluded that Mr. Burtt did not fail to comply with his regulatory obligations but that he failed, by reason of his mental health, to comply with the manner by which compliance was demanded; that is to say, in writing. I made no determination as to costs, offering the parties the opportunity to address the matter themselves.

 That proved unsuccessful and I subsequently invited and received written costs submissions.

Costs may be assessed against the Law Society where

25.01 (1) Costs may only be awarded against the Society,

(a)   in a licensing, conduct, capacity, competence or non-compliance proceeding,

(i)      where the proceeding was unwarranted; or

(ii)     where the Society caused costs to be incurred without reasonable cause or to be wasted by undue delay, negligence or other default…

That standard was not met

Mr. Burtt was the beneficiary of the invaluable help of a dedicated, thoughtful and committed Duty Counsel.

I am aware of no case in which costs were awarded to an unrepresented licensee or one assisted by duty counsel.

Although I have determined that there be no order of costs herein, I pause to note that had I reached a different conclusion, I would have considered submissions of a “cy pres” nature which, since legal fees were not incurred by the Licensee, may be as near as possible to an intention to defray demonstrable costs incurred in the provision of duty counsel services to the profession.

(Mike Frisch)