



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Dennis, 2019 ONCA 109

DATE: 20190215

DOCKET: C66120

Pepall, Trotter and Harvison Young JJ.A.

BETWEEN

Her
    Majesty the Queen

Respondent

and

Jason Dennis

Appellant

Michael S. Puskas, for the appellant

Ron Sabo, for the respondent

Heard: in writing

On appeal from the
    order of Justice Frederic M. Campling of the Ontario Court of Justice, dated
    September 28, 2017.

REASONS FOR DECISION

[1]

The threshold for awarding costs against a lawyer personally in a
    criminal proceeding is a high one. As stated by Justice Gascon in
Quebec
    (Director of Criminal and Penal Prosecutions) v. Jodoin
, 2017 SCC 26,
    [2017] 1 S.C.R. 478, at para. 25, only serious misconduct can justify such a
    sanction. Justice Gascon addressed the threshold for awarding costs against a
    lawyer personally at para. 29:

In my opinion, therefore, an award of costs against a lawyer
    personally can be justified only on an exceptional basis where a lawyers acts have
    seriously undermined the authority of the courts or seriously interfered with
    the administration of justice. This high threshold is met where a court has
    before it an unfounded, frivolous, dilatory or vexatious proceeding that
    denotes serious abuse of the judicial system by the lawyer, or dishonest or
    malicious misconduct on his or her part, that is deliberate.

At para. 52, he noted that costs are awarded on a discretionary
    basis and appellate courts should only intervene when that discretion is
    exercised in an abusive, unreasonable or non-judicial manner.

[2]

In the case before us, the appellant had appealed from his conviction
    under the
Provincial Offences Act
, R.S.O. 1990, c. P.33 (POA). On
    the date scheduled for the appeal hearing, the appellants counsel requested an
    adjournment of the hearing without prior notice to the Crown prosecutor. The
    Crown prosecutor had interrupted her vacation to attend on the scheduled date
    to argue the appeal, and had been inconvenienced as a result of the appellants
    request for an adjournment.

[3]

Of his own initiative, the appeal judge asked the Crown prosecutor if
    she wished to apply for costs. He observed that pursuant to s. 129 of the POA,
    he was empowered to make any costs order that he considered just and
    reasonable. He accepted that such an award should be made on an exceptional basis,
    but noted that the standard in s. 129 of the POA may be a little broader than
    the criteria set out in
Jodoin
.

[4]

In describing counsels adjournment request, the appeal judge stated
    that To wait for the other side to get to court and then notify the other side
    and the court that youre not ready and you need an adjournment is, in my view,
    reckless disregard for whoever [
sic
] is acting for the other side. He
    ordered the appellants counsel to pay $500 in costs personally.

[5]

We would observe that the principles described in
Jodoin
ought
    to apply equally to an order under s. 129 of the POA.

[6]

Here, the absence of advance notice of the adjournment request was
    worthy of adverse comment by the court. Whether categorized as inconsiderate or
    rude, counsels conduct cannot be considered acceptable. Indeed, in
    acknowledgement of this, counsel apologized to both the court and to the Crown prosecutor.

[7]

However, in our view, the exercise of the appeal judges discretion was unreasonable
    and did not meet the threshold for an award of costs against counsel personally.
    Fundamentally, counsels behaviour did not warrant the exceptional remedy of a
    personal costs order. Presumably in recognition of this, the respondent
    consented to both the appellants request for leave to appeal, and to the
    appeal itself.

[8]

For these reasons, the appeal is allowed and the costs award is vacated.
    We see no reason to order costs against the respondent as requested by the
    appellant.

S.E.
    Pepall J.A.

G.T. Trotter J.A.

Harvison
    Young J.A.


