Money could then be donated to legal aid groups
A Vancouver lawyer who recently took on a pro bono case and structured his engagement to obtain costs for his work is now encouraging lawyers to use this provision to donate these cost awards to legal aid groups.
“It's a way to make your pro bono work doubly beneficial,” says Matthew Nied of Nied Law Litigation Counsel. He adds that he is hoping that spreading the word about the potential of claiming costs will “inspire” lawyers to take on more pro bono work and increase the impact of the pro bono cases they do take on.
Nied notes that, while not widespread yet, there is a growing trend of pro bono counsel inserting special clauses into their agreements with their pro bono clients to obtain costs if they succeed with the case.
Nied says he recently did this with one client in a successful case in front of the British Columbia Court of Appeal, winning $10,000. He is now in the process of donating it to Vancouver-based Access Pro Bono, the legal aid organization that referred the case to him, “to help it support its important work.” The money will first be applied to reimburse disbursements paid during the proceedings, with the remainder going to Access Pro Bono “to further promote and access justice.”
By asking for costs and donating it, Nied said this increases the impact of taking on pro bono cases. The money donated helps legal aid agencies find and refer cases which, otherwise, might not have legal representation.
Nied says this is especially important at a time when pro bono organizations require support. The Covid-19 pandemic has led to more cases where those who have lost jobs or are on reduced incomes may be facing legal action related to such things as debt problems and failure to pay rent.
In the case that Nied took on, a “marginalized and vulnerable individual” was in a dispute with her strata (condominium) board and didn’t have the money to engage counsel. She lost when she represented herself in the lower court. Nied says she risked losing her home that she had lived in for many years due to foreclosure. When he studied the lower court ruling, he noticed it had overlooked a “key provision” in the governing statute that was not complied with, and the client had a good chance of winning at the B.C’s court of appeal.
By chance, before he took on this pro bono case, Nied said he had learned about the potential of being awarded costs related to pro bono work, but had to make sure that his client agreed the money go to Access Pro Bono.
Generally, costs are awarded to the client, Nied says, but given that pro bono legal counsel comes at no cost to the client, some might see it as an “unfair windfall” for the party to receive the costs award. However, Nied said there is “nothing to stop” lawyers from donating money to the client if they thought it was appropriate.
Nied says awarding costs for pro bono work is still not widespread due to a lack of awareness. Still, there is jurisprudence on the issue. An Ontario Court of Appeal case from 2006 said there was no reason why costs could not be awarded in pro bono cases, even if some might argue that it would take away from the altruistic nature of pro bono work. However, the same decision stressed that such a provision be clear in the client engagement agreement.
In 1465778 Ontario Inc. v. 1122077 Ontario Ltd., the Ontario appeal court wrote “there should be no prohibition on an award of costs in favour of pro bono counsel in appropriate cases." It should apply "even in private actions that do not involve public law, the Canadian Charter of Rights and Freedoms or similar issues of general public importance.”
Allowing pro bono parties to be subject to the ordinary costs consequences that apply to other parties has two positive consequences, the court ruled. It "promotes access to justice by enabling and encouraging more lawyers to volunteer to work pro bono in deserving cases.”
The appeal court also ruled that “where costs are awarded, the costs belong to the party, not to counsel.” However, “pro bono counsel can make fee arrangements with their client that allow the costs to be paid to the lawyer.”
The Ontario court of appeal judgement noted that the legal profession sees the availability of costs orders in favour of pro bono counsel as “a possible tool to reduce the unnecessary financial sacrifice associated with taking on pro bono work.” It also could increase the number of lawyers who may be willing and able to accept pro bono cases.
Heather Wojcik, director of legal services at Access Pro Bono says that lawyers who take on pro bono cases often don’t pursue costs that could be donated. “It’s not top of mind with them, to be honest,” she says.
While her group does have a fund to pay out disbursements on pro bono cases, up to $2,500, that money is often not recouped, “so anytime lawyers pursue costs that they can donate to us, we’re very grateful.”
Lawyers take on pro bono cases for many reasons, Wojcik says. The biggest reason is the idea of “giving back” to society, but often the merits of the case are important considerations, as is the ability to get certain types of experiences.
For example, in the court of appeal program, lawyers are matched with litigants who were self-represented at the lower court level, and they have access to mentors such as retired judges and senior lawyer who they can ask for advice.
Wojcik adds that pro bono lawyers are often encouraged to take cases that on the outer edges of being meritorious, not just those that are “slam dunk wins,” on the grounds that those litigants have a right to access justice as well even if they don’t have the means to pay for it.
“If there is a reasonable prospect of success, we hope these cases will be taken on.”