Judge orders lawyer to personally pay $100,000

A lawyer who was heavily criticized by a Superior Court of Justice judge for her role in a custody battle involving the Children’s Aid Society has been ordered to personally pay $100,000.

Jonathan Richardson says a case where a Superior Court of Justice judge ordered a lawyer to personally pay $100,000 in costs is 'definitely unusual.'
Jonathan Richardson says a case where a Superior Court of Justice judge ordered a lawyer to personally pay $100,000 in costs is ‘definitely unusual.’

The custody battle gained widespread attention earlier this year after Justice Grant Campbell ruled that two lawyers retained through Legal Aid, Brigitte Gratl and Jane McKenzie, provided incompetent counsel to their clients, the mother and father of a daughter who had been removed by authorities.

The removal came after a Motherisk drug test on the mother, which has since been disproved, and led Campbell to decry the child welfare system in the province as “broken.”

In the latest ruling on the case, Campbell ordered Gratl to personally pay $100,000, with $50,000 going to the Ontario Legal Aid Plan and $50,000 to the lawyer acting for the child’s mother, Julie Kirkpatrick.

“Ms. Gratl’s tactic and strategy has caused an unnecessary duplication of effort of counsel, unnecessary extra court attendances and a significant consumption of court and counsel’s resources and taxpayer funding,” said Campbell, in his decision C.A.S. of the R.M. of W. v C.T. and J.B., 2017 ONSC 3188.

In his ruling, Campbell described Gratl’s lack of response to various attempts made to reach her by letter, e-mail, online dropboxes and courier service by her former client, the child’s mother, over the mother’s efforts to argue she’d received ineffective or incompetent counsel on appeal.

“Ms. Gratl chose not to attend court on February 9, 2017, nor at any time over the prior eight months after July 22, 2016 when she was first given notice that the allegation if her ineffectiveness and/or incompetence was being made,” he said.

“Ms. Gratl effectively ignored all efforts to engage her regarding the quality and extent of her representation of [the child’s mother] over the four year period between April 2012 and June 23, 2016.”

Campbell noted in his ruling that delays in child welfare proceedings hurt children in severe ways, and cause emotional harm to young people involved.   

“[A]ny any reasonable person would conclude that it became incumbent upon Ms. Gratl to perform some due diligence and to inform herself of the details of the appeal process and of the steps that remained to be completed,” said the ruling.

“Her wilful blindness or at least her unwillingness to inform herself is unacceptable, irresponsible at best and reprehensible at worst.”

The ruling also alleges that Gratl told her client that she believed judges in Kitchener were afraid of her, and that a particular justice was “biased against everybody.”  

“Despite her strong negative opinion of the court process and its structure (and the local judges before whom she regularly appears and for whom she has a very negative opinion) Ms. Gratl’s actions for her then-client must be considered on the actual facts as they unfolded, not on her unprofessional attitude or her scurrilous opinions,” said the ruling.

While his remarks were very critical of Gratl, Campbell set aside his earlier finding that Gratl had provided incompetent counsel, and said the Law Society of Upper Canada was a “more appropriate forum” to determine the issue.     

Jonathan Richardson, partner at Augustine Bater Binks LLP in Ottawa, says Campbell spared no opportunity to describe problems with Gratl’s conduct. For example, the judge noted evidence alleging Gratl had made remarks to her client about the judiciary.  

Richardson said these remarks could have “career-long repercussions.”

“I suspect there are counsel who make these sorts of statements as a means of attempting to instil confidence in their clients, and instead, now that you read it in this particular scenario, it really just comes across as boasting, ineffective and in this case, potentially reputation-destroying,” he says.

Richardson said the ruling is “definitely unusual,” and that ordering lawyers to personally pay that size of cost is rare.  

“On the whole, it’s a reminder that we always have to act in our client’s best interests and in this case, as well, it’s a reminder that even where we haven’t necessarily been paid or still have ongoing fee disputes, that doesn’t relieve us of our duty of loyalty to our clients,” he says.

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