Law Times

Law Times • sepTember 25, 2017 Page 3 www.lawtimesnews.com OCA rules on amicus rates BY ALEX ROBINSON Law Times I n a case that could eventu- ally have implications for whether amicus curiae can be appointed in family law matters, the Ontario Court of Appeal has ruled that the attor- ney general is not obligated to negotiate payment for amicus above legal aid rates. In Morwald-Benevides v. Benevides, the attorney gen- eral appealed the appointment of amici in a family law matter involving a "toxic" custody dis- pute. An appeal judge, Superior Court Justice Edward Koke, ap- pointed the same amici to the appeal, but he then stayed the proceeding so that the lawyers could negotiate a rate with the attorney general. The Court of Appeal, how- ever, lifted the stay, finding the attorney general was not obli- gated to negotiate the rates. Some lawyers say the deci- sion confirms that judges are restrained in terms of setting compensation and picking ami- ci of their choice. It could also potentially lead to fewer lawyers taking on amicus work, lawyers say. "It's not always easy to find lawyers who are prepared to accept legal aid rates, so this doesn't help that obviously," says John Polyzogopoulos, a partner with Blaney McMurtry LLP, who was not involved in the case. Amicus counsel are typically appointed in exceptional crimi- nal cases in which the defendant is unrepresented and the issues at hand are particularly com- plex. Family lawyers are waiting to see what will happen in the underlying appeal, which will be heard by Koke and will de- termine whether the trial judge was within his jurisdiction to appoint amici. The case could have implica- tions for whether amicus can be appointed in family law matters, lawyers say. In the trial, the judge ap- pointed lawyer Andrew Thom- son, who did not respond to a request for comment, to serve as amicus for the wife. The judge then appointed Bonnie Oldham, who has since been appointed to the Ontario Court of Justice, as amicus for the hus- band after she asked to be re- moved from the case because he could not afford to pay her and he did not qualify for legal aid. To "avoid an imbalance" due to the appointment of amicus for the wife, the trial judge decided to appoint Oldham as amicus for the husband. Audrey Shecter, a family law- yer with Beard Winter LLP, who was not involved in the case, says family law matters often in- volve self-represented litigants, leading frequently to imbalanc- es between those who are repre- sented and those who are not. Shecter questions whether the case could mean that am- icus will be appointed for a self- represented party when amicus has also been appointed for the other spouse. "Does that mean the court automatically appoints an am- icus?" she says. "I can't possibly see that happening, because then people would say why should I go and retain counsel? I'll just say I don't have a lawyer and the court will appoint one for me and the cost to the justice system will be enormous." In the appeal, Koke appoint- ed the same lawyers as amici as they were familiar with the case. The two lawyers, how- ever, rejected legal aid rates to act on the appeal. The attorney general suggested three other lawyers who would accept legal aid rates, but Koke felt it neces- sary that Thomson and Oldham serve as amici. Koke then stayed the appeal until the attorney general ne- gotiated the rates with the law- yers, saying the government was obliged to do so according to a 2013 Supreme Court of Canada decision in Ontario v. Crimi- nal Lawyers' Association of Ontario. In the appeal of the stay, the appellant Crown argued that the decision does require the at- torney to negotiate in good faith and does not allow for a stay of proceedings conditional on such negotiations. The Court of Appeal agreed with the Crown's interpretation. The Court of Appeal found that the 5-4 majority decision in the Criminal Lawyers' Associa- tion suggested that the attorney general should meet to discuss rates when amicus is appointed, but it never said there was an obligation to negotiate rates in good faith. "In this case, although the at- torney general did not meet with the counsel who were appointed as amicus, there was correspon- dence about rates," Court of Ap- peal Justice Kathryn Feldman wrote in the decision on behalf of a three-judge panel. "Amicus counsel and the at- torney general were unable to reach an agreement. In my view, the attorney general was not re- quired to negotiate further with the appointed amicus, having fulfilled the expectation of the majority decision in Criminal Lawyers' Association." The Court of Appeal found that a court is not necessarily entitled to amicus of its choice if other appropriate counsel has been made available by the at- torney general. "The primary takeaway from this is that where there are coun- sel who are willing to be an am- icus at legal aid rates, it doesn't appear there is necessarily a ba- sis to appoint a different counsel at a higher rate," says Jonathan Richardson, a partner with Au- gustine Bater Binks LLP, who was not involved in the case. The court also found that there was no need to have both parties represented each by an amicus on appeal and that a single amicus could appropri- ately argue the appeal. Feldman said that while the trial judge required two amici to represent each side and main- tain a "proper adversarial pro- cess," that logic did not extend to the appeal of the amicus or- ders. She added that this was be- cause the appeal would not concern the merits between the parties at trial but with the constitutional and policy issues around a judge's jurisdiction to appoint amicus in a family law case at the cost of the attorney general. The court lifted the stay and remitted the matter back to Koke to consider one of the three counsel proposed by the attorney general. While the at- torney general asked that the matter be remitted to a different judge, the court rejected this re- quest saying there was no basis for such an order. Shecter says the decision means more senior counsel might not be as willing to serve as amicus in such appeals, as they'll be limited to legal aid rates. "I certainly think that it will make more senior [and] more experienced people think twice about acting as amicus," she says. Polyzogopoulos says judges might not appoint amicus if their chosen lawyer does not want to take on the matter at legal aid rates, and they have to choose a lawyer who is unfamil- iar with the case. "If their choice of counsel is being hindered, they might be less likely to appoint them," he says. Emilie Smith, a spokes- woman for the Ministry of the Attorney General, said the ap- peal of the trial judge's appoint- ment of the two amici will con- tinue, but she declined to com- ment further. LT NEWS John Polyzogopoulos says the decision could make lawyers less willing to take on amicus work. The primary takeaway from this is that where there are counsel who are willing to be an amicus at legal aid rates, it doesn't appear there is necessarily a basis to appoint a different counsel at a higher rate. Jonathan Richardson 561-391-3344 f 561-948-4713 d 561-910-7861 Florida Probate and Tax Planning Services STEVEN Z. GARELLEK Florida Bar Board Certified in International Law Member of the Florida, Ontario, and New York Bar 200 East Palmetto Park Road, Suite 103, Boca Raton, FL 33432 ntitled-2 1 2017-09-13 1:45 PM 10 TH ANNUAL ADVERTISING AND MARKETING LAW CONFERENCE COURSE HIGHLIGHTS • Changes | Trending now: Keeping you in the know • Québec – The Last Frontier • Privacy compliance: New technologies, changing law, and increased exposure • Transformation of Trademark Law in Canada and Beyond • Entertainment issues: CGC – Third party rights in disguise • Food, drugs and NHPS: The blurring lines • Infl uencer led disaster: More than meets the eye DATE & LOCATION Toronto: November 1, 2017 Vantage Venues 150 King St West, 27th Floor, *Discount applies to in-class only FOR QUESTIONS AND GROUP RATES, PLEASE CONTACT: Toll-Free: 1-877-298-5868 • Direct: 416-609-5868 Fax: 416-609-5841 • Website: cpdcentre.ca Email: lexpert.questions@thomsonreuters.com Register online at www.lexpert.ca/cpdcentre USE PROMO CODE EARLYBIRD2017 & SAVE OVER $300* EARLY BIRD ENDS OCT. 4 COURSE LEADER: Brenda Pritchard, Partner, Gowling WLG Toronto • Webinar | November 1, 2017 Untitled-3 1 2017-09-20 10:08 AM

• Cover