Deficiencies in the funding of Ontario’s legal system are well known and widely written upon. Black v. Black, 2016 ONSC 1984 is an important addition to that discussion.
The facts of Black are straight forward. While Justice Thompson was away from the courtroom, a court staff member was assigned to another court room, causing a one hour delay upon Justice Thompson’s return. This cost $300 in legal fees to Ms. Black and $100 to Mr. Black. Justice Thompson ordered costs payable by Ontario without notice to the province.
Ontario succeeded on appeal as the costs award should not have been made without notice.
Black is one of those interesting cases in which the subject matter is irrelevant but the principle is vital. Ontario no doubt spent more than $400 in legal fees to overturn the award, but it could not afford to have this precedent on the books. As a matter of policy, it is difficult to support Ontario’s position as it caused the delay and saddled individual litigants with the burden. On the other hand, Ontario’s court system is plagued by delay (which has many causes) and it is against the public interest to allow litigants to take potshots against the province.
Mr. & Ms. Black took no position on the appeal, no doubt because fighting to uphold the award would, at best, result in a pyrrhic victory. Their submissions would have been interesting to consider. It would also be interesting to see what would have happened if Justice Thompson adjourned the matter to give Ontario notice and an opportunity to make submissions.
These and the numerous other hypotheticals raised by Black highlight its significance and indicate why Ontario moved to overturn the costs award.
Jeffrey L. Hartman