OCA cost decision a boon to a duly funded legal aid system

By Staff

Legal Aid Ontario (LAO) received some timely relief when the province’s appeal court overturned a potentially crippling cost decision against it, says Toronto family lawyer Gary Joseph.

A unanimous three-judge panel of the Ontario Court of Appeal ruled a Superior Court judge’s order that LAO pay $190,000 in costs on behalf of a party it was funding in contentious litigation was not “sustainable in law or in fact.”

Joseph, managing partner with MacDonald & Partners LLP, says the decision should be welcomed by anyone with an interest in a properly funded legal aid system for those unable to afford a lawyer.

“The original decision was critical of legal aid for not scrutinizing to a greater degree the opinion and actions of trial counsel, but to impose that kind of duty on them would have had an incredibly chilling effect on the plan,” he tells “I understand what the trial judge was trying to do, but the bigger picture called for the Court of Appeal to step in.”

The matter involved a dispute over the capacity of a catastrophically brain-injured man to marry his on-off girlfriend. His sons, who were appointed the man’s guardians of property and care, challenged the validity of the marriage, which occurred without their knowledge, and just days after their father’s release from the hospital.

The trial judge sided with the sons, voiding the marriage, but was also critical of LAO for continuing to fund legal representation of the woman, even after it became clear the man was mentally incapable of consenting to the marriage. As a result, he ordered the agency to cover the $190,000 cost order made in favour of the successful sons.

Despite LAO’s knowledge of the man’s vulnerable state, the appeal court panel found “no evidentiary support” for the trial judge’s conclusion that its behaviour in allegedly failing to monitor the litigation was an abuse of process.

“Fundamentally, the application judge misconstrued the role of LAO,” the panel wrote, distinguishing cases like this one, in which the agency was a non-party, and others where it acts as a party to the litigation.

“As a non-party, LAO’s conduct must be viewed in the context of its statutory mandate and the regime of legal aid services in Ontario,” they wrote. “Without evidence of something more, such as bad faith or a collateral or improper purpose in granting funding to a litigant, LAO’s conduct in funding litigation pursuant to its statutory purpose, and any conduct incidental thereto, including its monitoring of the litigation it funds, cannot support a finding of abuse of process and a resulting adverse costs award.”

While the man’s circumstances were “most unfortunate,” the panel added, “his misfortune does not render the award against LAO sustainable either in law or in fact.”

Joseph, who was not involved in the matter and comments generally, says he’s not sure what LAO would have done if the ruling had stood, given its current funding status.

“It would have meant more money being spent on administration, and more certificates being denied. The LAO has enough problems as it is,” he notes, referencing the significant cuts to the agency’s budget in the provincial government’s recent budget.

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