Law Times

Law Times • June 13, 2011 NEWS PAGE 3 Lawyer on hook for 40% of clients' costs BY MICHAEL McKIERNAN Law Times owed by two clients who unsuc- cessfully challenged a bilingual sign bylaw after a judge found his conduct in the case added to the cost of defending the action. In a decision released May A 30, Ontario Superior Court Jus- tice Monique Métivier awarded the eastern Ontario Township of Russell $180,000 in costs for its successful defence of a local bylaw that required all new commercial signs in the municipality to be in both English and French. Two men, Russell resident Jean-Serge Brisson and language- rights activist Howard Galganov, launched a constitutional chal- lenge of the bylaw, which they ar- gued was an infringement to their rights to freedom of expression. Métivier dismissed the challenge in August and has now ordered the lawyer for the two men, Ken- neth Bickley, to pay 40 per cent of the costs awards against them. She found Bickley hadn't acted in bad faith but ruled his conduct had caused unnecessary costs. "Th e moving target present- ed by Mr. Bickley's conduct of the case meant that positions, documents, and the law had to be constantly examined, re- examined, and reconsidered only to then fi nd a particular position was changed, a motion would not be brought, a stated ground not argued at the hear- ing, etc. — all over a period of two years," Métivier wrote. Th e prime example, according to Métivier, was the protracted debate over the cross-examina- tion of former Russell mayor Ken Hill, which Bickley said he had no intention of forcing him to attend. Two months before the hearing, he then served a notice of intent to call Hill as a witness before eventually changing his mind. But that was only after the township had prepared a factum on the issue. Bickley also attempted to have Galganov appear as an expert wit- ness in Brisson's case, despite the fact that the court was hearing the matters together. Neverthe- less, the township cross-examined Galganov and researched argu- ments on biased witnesses before Métivier ruled he wasn't qualifi ed. According to the ruling, there was little chance of the court ever ac- cepting Galganov as an expert. At the same time, Métivier said the township's cautious approach was justifi ed because "a careful advo- cate seldom relies on a certainty as to what a court may rule." Another expert proposed by Bickley was "similarly waste- ful of time and money," Mé- tivier said, because he "did not have any credibility on the issue and no expertise." In both cases, Bickley prepared and fi led affi davits after cross- examination, which forced addi- tional responses from the town- ship. "Th is breach of procedure is indicative of negligence, at least," Untitled-2 1 www.lawtimesnews.com 6/9/11 9:27:31 AM DISCOVER THE POWER OF CONTEXT Get the full picture of the law with Westlaw® Canada Westlaw Canada is the only online research tool in Canada designed with the whole research process in mind — recognizing that your goal is to discover the law, not just find cases on point. It's more than information, you get insight you can use to make critical decisions, create compelling arguments and achieve better results. Get Better Results Faster with Westlaw Canada Call 1-866-609-5811 or visit www.westlawcanada.com n Ottawa lawyer has been ordered to personally pay $72,000 towards the costs Métivier wrote. "It also under- scores the diffi culty faced by the respondent in knowing what case it actually had to meet and ex- plains much of what may appear to be excessive preparation." When the hearing began, Bickley attempted to convert the constitutional application into a trial based on an erroneous read- ing of the Rules of Civil Proce- dure. "Eventually, as Mr. Bickley was directed to read the applicable rule, he agreed that his position was contrary to the words of the rule. Th is showed that he had not seriously prepared for this argu- ment," said Métivier, who added that much of Bickley's arguments and submissions on the hearing's fi rst day were "confusing and oc- casionally incomprehensible. At the end of his presentation, I un- derstood little of his client's cases or, more importantly, his argu- ments of the law." According to the decision, Bickley had at one stage during submissions begun waving the Franco-Ontarian fl ag. Métivier called it a "mocking gesture showing a lack of civility" but said it had no bearing on her costs decision. Bickley tells Law Times that solicitor-client privilege prevents him from commenting on the matter, but his lawyer, Allan O'Brien of Nelligan O'Brien Payne LLP, says he has recom- mended that his client appeal the decision. O'Brien notes Bickley advised his clients of their risks at every stage and that they haven't alleged anything improper about their lawyer's conduct. Nevertheless, their refusal to waive solicitor-client privilege prevents Bickley from elaborat- ing on the advice he gave them or the specifi c instructions he re- ceived from them, says O'Brien. "I believe Mr. Bickley was placed in a very precarious position. In a sense, Mr. Bickley is being clothed with the alleged missteps of his clients without being allowed to perhaps explain openly why he took the steps he did." Th e township had asked for more than $300,000 in costs, while Galganov and Brisson had off ered to pay $20,000 each. While she found the matter was an important one, Métivier said there was no public interest served by the litigation and that the defendants had an awareness of the potential cost of defeat. After launching his application, Galganov told a newspaper that the legal proceedings could "easily cost the municipality $250,000." Ronald Caza, a partner at the Ottawa offi ce of Heenan Blaikie LLP who represented the town- ship, says the costs decision was an important one for Ontario's francophone community. "Th e francophone community, as the linguistic minority in On- tario, is constantly needing to go before the courts in order to defend itself," he says. "It's very expensive and it's very discour- aging to always need to invest time and money, but this sends the message that indeed the preservation of their language and culture is important and that it is worthwhile making the eff orts." Galganov had launched the original constitutional challenge despite not being a resident of Russell. In August 2010, Métivier found he had no standing to bring the appli- cation because the bylaw didn't aff ect him. Brisson had delib- erately changed his 30-year- old sign in order to breach the bylaw, but Métivier found the township's move didn't violate his constitutional rights. For his part, Caza says that by giving English and French equal prominence on signs, the bylaw served the purpose of protecting the francophone community in Russell. "Th ey can see all around as they're living their lives that in their community, the fran- cophone culture and language is important. When there are bylaws like this, you get less as- similation, which happens when francophones decide they're no longer going to make any eff orts to live in French."

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