Following an unsuccessful Application for intervenor status by Mr. Maurice Stoney (“Stoney”) Justice Thomas requested submissions on Costs and ordered further evidence and a hearing on whether Stoney’s lawyer, Ms. Kennedy, should be personally liable for Costs for pursuing the Application.

Justice Thomas noted that Costs awards against lawyers are governed by Rule 10.50 which states, “[i]f a lawyer for a party engages in serious misconduct, the Court may order the lawyer to pay a costs award with respect to a person named in the order”. Thomas J. referred to recent leading authority which states that that there are two scenarios when Costs awards of this nature are appropriate: “an unfounded, frivolous, dilatory or vexatious proceeding that denotes a serious abuse of the judicial system by the lawyer”, or “dishonest or malicious misconduct on his or her part that is deliberate”. Justice Thomas confirmed that this analysis replaces the former test which required demonstrated “bad faith, or deliberate misconduct, or patently unjustified actions, although a formal finding of contempt is not needed”. Thomas J. also confirmed that a lawyer’s conduct is governed by Rule 1.2 which states the purpose of the Rules is to facilitate fair and just resolution of claims “in a timely and cost-effective way.”

Thomas J. stressed that any analysis of a Costs award against a lawyer should be contextual, but there are certain “ground rules” that all lawyers should be expected to know and follow. His Lordship observed that some conduct by a lawyer may attract a Costs award: futile actions and applications such as collateral attacks on a case that has been argued and ruled upon; breaches of duty including conducting litigation on behalf of non-clients; special forms of litigation abuse such as booking a hearing time for an application that is obviously inadequate; and delay.

Justice Thomas noted that the Affidavits presented by Kennedy which purported to allow Stoney to represent his brothers and sisters, or to allow Kennedy to act on their behalf did not contain any documentation which would support such representation. Justice Thomas observed that, under Rule 2.11, an individual who lacks capacity may have a self-appointed Litigation Representative pursuant to Rule 2.14, but only after filing proper documentation. In this case, that “did not occur”.

Justice Thomas ordered Costs against Kennedy personally on the basis that she conducted futile litigation that was a collateral attack of a prior unappealed Decision of a Canadian Court, and conducted litigation on behalf of persons who were not her clients.