This case is about counsel writing a letter to a judge during the course of the case without the permission from the opposing counsel (there was no consent). The letter was regarding various issues within the case (e.g. child support).
Opposing counsel wanted to bring a motion for a mistrial given the presiding judge was provided with the letter that opposing counsel never consented to. The Court denied the Motion for a mistrial as they felt there was a breach of the rules, but it did not rise to the level of being egregious. Rule 1.09 of the Ontario Rules of Civil Procedure states the following:
When a proceeding is pending before the court, no party to the proceeding and no party’s lawyer shall communicate about the proceeding with a judge, master or case management master out of court, directly or indirectly, unless,
- All the parties consent, in advance, to the out-of-court communication; or
- the court directs otherwise.
Consequently, the Court decided that bringing a motion for other relief was warranted. The Court felt that a cost sanction was an appropriate remedy for the circumstances, and the cost award was for $15,000.00. The Court discussed principles in which they consider when determining the reasonableness of cost awards.
The principles include the following:
- The Court uses their discretion in light of the specific facts and circumstances of the case;
- A consideration of experience, rates charged and hours spent is appropriate, but is subject to the overriding principle of reasonableness as applied to the factual matrix of the particular case;
- The reasonable expectation of the unsuccessful party is one of the factors to be considered in determining an amount that is fair and reasonable;
- The court should seek to avoid inconsistency with comparable awards in other cases;
- The court should seek to balance the indemnity principle with the fundamental objective of access to justice; and
- A discretionary decision of a case-management judge in a class proceeding is entitled to a very high level of deference.
It is important to note that lawyers who do not meet their professional obligations can be disciplined both by the courts and the Law Society of Upper Canada.