Can a lawyer be personally liable for costs in a personal injury action?

Ontario, Canada


The following excerpt is from Solarc Construction Ltd. (Re), 2009 CanLII 2494 (ON SC):

The Supreme court of Canada has authoritatively set forth in Young v. Young, 1993 CanLII 34 (SCC), [1993] S.C.J. No. 112 at para. 254 the factors to consider in considering whether costs should be awarded against counsel personally. The basic principle on which costs are awarded is as compensation for the successful party, not in order to punish a barrister. Any member of the legal profession might be subject to a compensatory order for costs if it is shown that repetitive and irrelevant material, and excessive motions and applications, characterized the proceedings in which they were involved, and that the lawyer acted in bad faith in encouraging the abuse and delay. It is clear that the courts possess jurisdiction to control abuse of process and contempt of court. But the fault that might give rise to a costs award against [the barrister] does not characterize these proceedings, despite their great length and acrimonious progress. Moreover, courts must be extremely cautious in awarding costs personally against a lawyer, given the duties upon a lawyer to guard confidentiality of instructions and to bring forward with courage even unpopular causes. A lawyer should not be placed in a situation where his or her fear of an adverse order of costs may conflict with these fundamental duties of his or her calling.

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