Law Times

Law Times • January 15, 2018 Page 3 www.lawtimesnews.com Won't have to personally pay $100,000 OCA nixes cost awards against lawyer BY ALEX ROBINSON Law Times T he Ontario Court of Appeal has reversed a judge's order that a K i t c h e n e r-Wa t e r l o o lawyer should pay $100,000 in costs personally in a child wel- fare case. An appeal judge had ordered lawyer Brigitte Gratl to pay $50,000 in costs to Legal Aid Ontario and $50,000 for her cli- ent's new lawyer in the case, after determining she had provided ineffective assistance in the pro- ceedings. But the Court of Appeal found that the issue was moot as the original trial judge's deci- sion, which was overturned by the appeal judge, was actually correct. "Ineffective assistance of counsel as a ground of appeal has a very narrow application," Court of Appeal Justice Mary Lou Ben- otto wrote in Children's Aid Society of the Regional Munici- pality of Waterloo v. C.T. "It is a ground of appeal. It is not a springboard from which an appellate court engages in retrospective analysis of every aspect of a lawyer's conduct." The case involved a since- debunked Motherisk drug test that Gratl's client — and the mother in the case — participat- ed in, which resulted in her child being removed from her custody in 2012. The case languished for years, leaving the parents unable to contact their child, who was in a "legal limbo," said the appeal judge, Justice Grant Campbell. In Campbell's decision, he painted a grim picture of the child welfare system in Canada in which the few lawyers that will take these kinds of legal aid cases are completely overwhelmed. Campbell took an unusual step of commenting on the sys- tem at large in his decision, rath- er than just simply ruling on the narrow legal issues before him. Campbell said the "patch- work of child welfare legislation" across Canada is not working and that judges and courts are scrambling to keep up in the un- derfunded system. He declared the trial was un- fair and said there had been a miscarriage of justice. He blamed a perfect storm of "errors, incompetence, institu- tional oversights and mistakes" for how the case had developed. Campbell ordered that the parents be given access to the child. He found the trial judge's decision was unreliable, but he declined to issue a new trial as he said it would further harm the child. He determined that Gratl had "dropped the ball" in how she handled the case and that she failed to register her clients' objections to delays and proce- dural unfairness. The mother terminated her retainer with Gratl in June 2016, after the trial had been complet- ed. She filed a long list of com- plaints against Gratl, alleging she had ignored instructions, been unprepared and had failed to bring a motion about the mother's indigenous heritage. Gratl was not present at the mother's appeal and filed no evi- dence in it. Campbell found that Gratl, who was retained through Legal Aid funds, had provided incom- petent counsel. He also determined that Gratl had breached the Law So- ciety of Ontario's Rules of Pro- fessional Conduct. After Gratl moved to have these findings reversed, Camp- bell varied his ruling to set aside the "incompetent counsel" find- ing, but he determined that Gratl's involvement as counsel during a specific period of time had still caused a miscarriage of justice. The Court of Appeal, how- ever, allowed a cross appeal brought by Gratl requesting that the costs order and the conclu- sion of ineffective assistance be reversed. The court noted that ineffec- tive counsel is a ground of ap- peal and not an invitation for the court to analyze every aspect of a lawyer's conduct. And as the trial judge had not erred, there was "no ground of appeal left to explore," Benotto wrote in the decision. Benotto said that Campbell's "far-reaching analysis" would be better done in the context of a civil negligence action or a dis- ciplinary investigation by the law society. Susan Sack, the lawyer repre- senting Gratl in the matter, de- clined to comment. Jacquie Mills, a certified spe- cialist in family law, who was not involved in the matter, says the case is shocking in many ways and puts counsel in a ridiculous position. If counsel were ordered to pay costs each time they were unsuccessful, no one would practise family law, she says. "Counsel is in a difficult posi- tion because they cannot waive solicitor-client privilege to pro- vide balanced facts to the judge," she says. "Counsel cannot point out to the judge that they warned their client in writing that the argu- ment may not work. Counsel have no way to protect them- selves in these circumstances." Legal Aid Ontario had in- tervened in the appeal to ask the court to amend Campbell's order to provide that any costs payable would be paid to LAO. It became unnecessary for the Court of Appeal to address this issue after determining the costs award should be reversed. The Court of Appeal also re- stored the trial judge's determi- nation that the parents should not have access to their child, as the appeal judge had found no error by the trial judge when he reversed the order. The Court of Appeal found that the fresh evidence Camp- bell considered about access did not support overturning the trial judge's order. Julie Kirkpatrick, the lawyer who replaced Gratl in the case and now represents the mother, says she has instructions to seek leave to appeal the decision to the Supreme Court of Canada. A spokeswoman for the Family and Children's Services of the Waterloo Region says the organization feels the Court of Appeal correctly interpreted the legislation being considered. Katherine Hensel, the lawyer representing the father in the matter, did not respond to a re- quest for comment. LT NEWS The Ontario Court of Appeal has reversed a lower court decision to award $100,000 in costs personally against a lawyer. JUDICIAL VACANCY ONTARIO COURT OF JUSTICE MILTON The Judicial Appointments Advisory Committee advises the Attorney General of Ontario on the appointment of Judges to the Ontario Court of Justice, and invites applications for a judicial position in Milton. This appointment involves presiding over family and criminal law matters (approximately 75% family and 25% criminal) and also involves travel within the regional boundaries as assigned by the Regional Senior Justice and/or the Chief Justice. The minimum requirement to apply to be a Judge in the Ontario Court of Justice is ten years completed membership as a barrister and solicitor at the Bar of one of the Provinces or Territories of Canada. All candidates must apply either by submitting 14 copies of the current (July 2017) completed Judicial Candidate Information Form in the first instance or by a short letter (14 copies) if the form has been submitted within the previous 12 months. Should you wish to change any information in your application, you must send in 14 copies of a fully revised Judicial Candidate Information Form. If you wish to apply and need a current Judicial Candidate Information Form, or if you would like further information, please contact: Judicial Appointments Advisory Committee Tel: (416) 326-4060 Fax: (416) 212-7316 Website: www.ontariocourts.ca/ocj/jaac/ All applications, either sent by courier, mail or hand delivery, must be sent to: Judicial Appointments Advisory Committee c/o Ministry of Government Services Mail Delivery 77 Wellesley Street West, Room M2B-88 Macdonald Block, Queen's Park Toronto, Ontario, M7A 1N3 Applications must be on the current prescribed form and must be TYPEWRITTEN or COMPUTER GENERATED and RECEIVED BY 4:30 p.m. on Friday, February 2, 2018. CANDIDATES ARE REQUIRED TO PROVIDE 14 COPIES OF THEIR APPLICATION FORM OR LETTER. A Fax copy will be accepted only if 14 copies of the application or letter are sent concurrently by overnight courier. Applications received after this date WILL NOT be considered. The Judiciary of the Ontario Court of Justice should reasonably reflect the diversity of the population it serves. Applications from members of equality-seeking groups are encouraged. Untitled-2 1 2018-01-10 10:25 AM 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 www.twitter.com/lawtimes Follow on

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