Julie McFarlane has a fascinating blog on the emerging jurisprudence in Canada dealing with the award of costs when time is required by an opposing attorney’s wrongful activities. As I understand it, this is analogous to the US Rule 11 sanctions. As described in the blog, the steps to the most recent decision, Bergen v. Sharpe, which ended up with a $200 an hour charge against the wrongful side, were as follows:
1. In family proceedings in Ontario, costs generally follow the award (Rule 24 Family Law Rules). Ergo, successful SRLs may receive costs. In addition, the courts increasingly use costs to penalize parties who delay, prolong proceedings, make unreasonable claims and refuse to consider settlement (more below).
2. Bad behaviour that would lead to an award of costs in favour of a represented party will similarly lead to an award of costs to a SRL (among others, Fong v. Chan). To do otherwise would undermine an increasingly important aspect of the costs regime – to encourage settlement – and would allow a represented party facing a SRL to prolong the matter with impunity.
3. The determination of who bears legal costs should not deter anyone from access to the courts (1465778 Ontario Inc. v. 1122077 Ontario Ltd, awarded costs to pro bono counsel to facilitate access to justice). A presumption against ever awarding costs to SRLs would amount to a bar on access to the justice system.
4. The assessment of the value of the time that SRLs put into their case should reflect an assessment of how much time it is reasonable for them to have spent working on their case – the same standard that is applied to lawyers – and an appropriate hourly rate.
We are not there in the States, I suspect, but it is something to think about as a tool for judges to wield as a disincentive to attorney obstruction in SRL cases.