How do I Complain about a Judge (Federally Appointed, Provincially/Territorially Appointed), a Justice of the Peace, a Lawyer or a Paralegal?
The Legal profession as a whole is, in theory, suppose to act honourably, independently and competently. The profession is, for the most part, self-regulated. There are professional rules of conduct which govern the way in which the profession is suppose to conduct itself, whether it concerns a paralegal, lawyer, justice of the peace or a judge.
It isn’t suprising that so many lay people (non-lawyers) are bewildered by the entire court experience. The surroundings, the language used, the procedures followed are intimidating to those who go to court, especially for a minor matter, such as a trial in which to fight their ticket. There has been no attempt by the legal profession or the Government to demystify court proceedings or to make these proceedings less intimidating. The legalese alone (the legal language used inside the court room) is enough to intimidate and frustrate the participants.
Most individuals that participate in the “justice system” are not there because they choose to be. The system is known as an “adversarial system” where, inevitably, there are winners and losers. Those individuals that reluctantly participate in the justice system, come into contact with Judges, Justices of the Peace, Lawyers and/or Paralegals. Often, participants in the “justice system” walk away, after the final decision is made, feeling: that they haven’t had their expectations met, misunderstood, frustrated, confused and cheated.
If a Judge makes a legal error, then his/her decision can be appealed to a higher court. If a Judge does not commit a legal error, but you suspect that he/she was influenced, while making the decision, by something other than the evidence and facts presented and the law, there are avenues available to you, to submit a complaint.
In the Canadian Justice System, Judges are appointed by the Federal Government, Provincial Government (10 Provinces) or Territorial Government (3 Territories). It is important to be able to distinguish between the three, given that if the Judge presiding over your matter(s) is Federally appointed, the complaint will be dealt with by the “Canadian Judicial Council”, if the Judge was Provincially/Territorially appointed, the complaint will be dealt with at that level (i.e.- if your Judge was appointed by the Ontario Provincial Government, the complaint would be dealt with by the “Ontario Judicial Council”).
Judges (Appointed by the Federal Government, through the Governor General, on the recommendation of the Federal Cabinet):
The Federal Government appoints Federal Judges. In order to become a judge, you must have practiced law as a lawyer, full-time for at least ten (10) years.
Appointments “to the Bench” are provided by the Constitution Act, which states that judges are separate from and independent of the other two branches of government (the “legislative” and the “executive”). The Judges Act is the legislation that dictates how judges are appointed, their salaries and the Canadian Judicial Council’s mandate (the Canadian Judicial Council was established in the year 1971 by the Parliament of Canada). Once appointed to the bench, a Judge must devote themselves entirely to the position and the judicial duties that are related to this position. Section 55 of the Judges Act
Judicial duties exclusively: 55. No judge shall, either directly or indirectly, for himself or others, engage in any occupation or business other than his or her judicial duties, but every judge shall devote himself or herself exclusively to those judicial duties.
In theory, the reason that Supreme Court Justices (Judges) are paid well (over $300,000.00 annually) is due to the fact that they cannot raise revenue elsewhere. It was recently reported that the Supreme Court of Canada’s Chief Justice, Madame Beverley McLachlin, earns $ 349,800.00 a year and the Supreme Court Puisne Judges earn $ 329.000.00 annually. This category of earnings applies equally to other Judges (who earn, on average $ 260,000.00 a year) and is not viewed as excessive or unreasonable.
These Federally appointed Judges hear cases in the Superior Courts (includes provincial/territorial superior courts, provincial courts of appeal, the Federal Court, the Federal Court of Appeal, the Tax Court of Canada, the Court Martial Appeal Court of Canada and the highest court in the land, the Supreme Court of Canada). There are approximately 1,100 Federally appointed Judges that are currently working in Canada, from coast to coast to coast, who can all work until they become seventy-five years of age (75 years old), before they retire. Provincially appointed Judges, for the most part, must retire when they reach seventy years of age (70 years old), depending on the Province/Territory.
Recently, in the Superior Court of Ontario, a number of Justices of the Peace and the Association of Justices of the Peace of Ontario, petitioned the Court to strike down the mandaory retirement clause at the age of 70 from sub-sections 5 and 6 of the Justices of the Peace Act, R.S.O. 1990, c.J.4 as they claimed these provisions violated their rights under section 15 of the Charter. The Judge ruled that the sub-sections of the Justices of the Peace Act did not meet the minimal impairment analysis and failed the proportionality test of the section 1(“Charter“) analysis. The Judge hearing the case (See Decision), Judge George R. Strathy, J. of the Superior Court of Ontario ruled on June 2, 2008, that their rights under section 15 of the Charter were violated. He ruled that Justices of the Peace in Ontario could work to the age of 75 years, subject to annual approval of the Chief Justice of the Ontario Court of Justice. Given this ruling, it won’t be long before Justices of the Peace and Judges everywhere begin the challenge the notion that they must retire at the age of 70.
Making a complaint about a Federally appointed Judge to the Canadian Judicial Council
There is a high standard of personal conduct expected of judges, both publicly and while they are performing their profession in the Courts. If a judge does not meet the high professional standards expected of them, complaints can be lodged against them through the Canadian Judicial Council established in subsection 59 (1) of the Judges Act. If Judicial misconduct has occurred, i.e. racial bias, gender bias, neglect of duty or failure to disclose a conflict of interest with regard to one of parties before them, a formal complaint can be initiated with the Canadian Judicial Council. According to the Canadian Judicial Council to make a complaint (you do not need to be represented by counsel) you simply make your complaint in writing to the:
Canadian Judicial Council
Telephone Number: (613) 288-1566
Facsimile Phone Number: (613) 288-1575
Email Address: www.cjc-ccm.gc.ca
The complaint should include the following information:
Your name and address
Name of the judge, court, date and circumstances of the conduct in question
Detailed description of the conduct
Upon receiving the complaint, a member of the Canadian Judicial Council’s Judicial Conduct Committee examines the complaint and determines whether the judge in question should be contacted. If necessary, an independent counsel may be appointed to make further inquiries. If more than one perspective is needed, a panel made up of Council members and ordinary judges (puisne judges, not chief justices or associate chief justices) is assembled.
If the matter is very serious, or if the complaint comes from a provincial/territorial Attorney General or the Minister of Justice of Canada, an Inquiry Committee may be appointed to hold a public hearing, after which the matter goes on for full discussion by the full Council (39 members, all judges, chaired by the Chief Justice of Canada).
After considering the report of an Inquiry Committee, the Council may recommend to Parliament (through the office of the Minister of Justice) that the judge be removed from office. Normally, if misconduct is found, the judge retires or resigns from office. According to the Canadian Judicial Council, they only have the power to recommend to Parliament that a judge be removed from office and that the Parliament has never had to actually remove a Federally appointed judge.
When the complaint has been reviewed and a decision has been made, the decision will be put in writing by the Council and sent to you.
The Canadian Judicial Council only applies to Federally appointed Judges (Provincial/Territorially appointed Judges have judicial councils in each Province or Territory, where complaints for misconduct can be directed). Here is a list of the Courts in which Federally appointed Judges perform their duties (of which the Council has authority over):
|Supreme Court of Canada||Court of Appeal|
|Federal Court of Appeal||Superior Court of Justice|
|Court Martial Appeal Court of Canada|
|Tax Court of Canada|
|Newfoundland||Prince Edward Island|
|Supreme Court, Court of Appeal||Supreme Court, Appeal Division|
|Supreme Court, Trial Division||Supreme Court, Trial Division|
|Nova Scotia||New Brunswick|
|Court of Appeal||Court of Appeal|
|Supreme Court||Court of Queen’s Bench|
|Court of Appeal||Court of Appeal|
|Superior Court||Court of Queen’s Bench|
|Court of Appeal||Court of Appeal|
|Court of Queen’s Bench||Court of Queen’s Bench|
|Court of Appeal||Supreme Court|
|Supreme Court||Court of Justice|
The Canadian Judicial Council and the Judges Act
The Canadian Judicial Council (hereafter “C.J.C”) receives its authority to investigate and rule on complaints with regard to Federally appointed Judges, from the ( Judges Act ). The Judges Act in PART II – Section 59. describes the Constitution of this Council, followed by the “Objects of Council” in Section 60, which states “The Objects of the Council are to promote efficiency and uniformity, and to improve the quality of judicial service, in the superior courts” . It is the next part of the Judges Act which refers to “INQUIRIES CONCERNING JUDGES” beginning in Section 63.
- Section 63.(1) Inquiries:
- “The Council (C.J.C) shall, at the request of the Minister (Minister of Justice of Canada) of the attorney general of a province, commence an inquiry as to whether a judge of a superior court should be removed from office for any of the reasons set out in paragraphs 65(2) (a) to (d)”.
- Section 65 (2) Recommendation to Minister:
- “Where, in the opinion of the Council (C.J.C), the judge in respect of whom an inquiry or investigation has been made has become incapacitated or disabled from the due execution of the office of judge by reason of
- (a) age or infirmity,
(b) having been found guilty of misconduct,
(c) having failed in the due execution of that office, or
(d) having been placed, by his or her conduct or otherwise, in a position incompatible with the due execution of that office, the Council (C.J.C), in its report to the Minister under subsection (1), may recommend that the judge be removed from office”.
- Section 63. (2) Investigations:
- “The Council may investigate any complaint or allegation made in respect of a judge of a superior court”.
- Section 63. (6) Inquiries may be public or private:
- “An inquiry or investigation under this section may be held public or in private, unless the Minister requires that it be held in public”.
- Section 65. (1) REPORT AND RECOMMENDATIONS – Report of Council:
- “After an inquiry or investigation under section 63 has been completed, the Council shall report its conclusions and submit the record of the inquiry or investigation to the Minister (Minister of Justice of Canada”..
- Section 66. (2) EFFECT OF INQUIRY – Leave of absence with salary:
- “The Governor in Council (C.J.C) may grant leave of absence to any judge found, pursuant to subsection 65(2), to be incapacitated or disabled, for such period as the Governor in Council, in view of all the circumstances of the case, may consider just or appropriate, and if leave of absence is granted the salary of the judge shall continue to be paid during the period of leave of absence so granted.
- Section 66 (3) Annuity to judge who resigns:
- “The Governor in Council may grant to any judge to be incapacitated or disabled, if the judge resigns, the annuity that the Governor in Council might have granted the judge if the judge had resigned at the time when the finding was made by the Governor in Council”.
- Section 71. REMOVAL BY PARLIAMENT OR GOVERNOR IN COUNCIL- Powers, rights or duties not affected:
- “Nothing in, or done or omitted to be done under the authority of, any sections 63 to 70 affects any power, right or duty of the House of Commons, the Senate or the Governor in Council in relation to the removal from office of a judge or any other person in relation to whom an inquiry may be conducted under any of those sections”. This has never happened, but there is always a potential for this to take place.
How do I complain about a Provincially Appointed Judge?
Each Provincial Government appoints its own Judges. In order to become a judge, a lawyer must practice law full time for at least ten (10) years. Provincially appointed judges also must adhere to a high standard and a high level of professional conduct and must retire at the age of seventy (70 years old). The rules surrounding Provincial Judges, are not as restrictive as those rules applied to Federally appointed judges. Section 55 of the Judges Act (that applies to Federal Judges) speaks about these judges having to work exclusively as a Judge and nothing else. Under Ontario’s Courts of Justice Act,
Section 46.(1) Outside Activities: it states “A provincial
Judge may act as a commissioner, arbitrator, adjudicator, referee, conciliator or mediator only if expressly authorized by an Act of Parliament of Canada or the Legislature or appointed or authorized by the Governor in Council or Lieutenant Governor in Council”.
Provincial Judges make mistakes and commit legal errors. When a legal error has occurred, their decision can be appealed to a higher court, where the appropriate remedy can be sought.
When a Provincial Judge commits judicial misconduct (either in the courtroom or in the public) or if you believe that someone other than the facts and evidence in the case influenced their decision, a complaint can be initiated against them.
Examples of what kind of behaviour can be complained about: racial bias, gender bias, neglect of duty or refusing to disclose a “conflict of interest” with one or more of the parties in a court case.
The Canadian Judicial Council has links to the following provinces judicial councils to make complaints about provincially appointed judges. The following provincial judicial councils can be found on this webpage, through its links: Alberta, British Columbia, Manitoba, New Brunswick, Newfoundland and Labrador, Nova Scotia, Ontario, Quebec, Saskatchewan, Yukon. You can find the webpage address at this link.
Ontario Judicial Council:
In Ontario, the Ontario Judicial Council (hereafter the “Council”) is an agency established under the Courts of Justice Act (see Sections 49 to Section 51.12 inclusive). The Judicial Council serves many functions, but its main role is to investigate complaints of misconduct made regarding provincially-appointed judges and/or Masters.
The Council is made up of lawyers and community members. The Council does not have the power or authority to interfere with or change a judge’s decision on a case. Only an appeal court can overturn or change a judge’s decision.
What is the composition of the Ontario Judicial Council and who sits on it?
The Courts of Justice Act, under the heading “ONTARIO JUDICIAL COUNCIL”
Section 49. (2) Judicial Council, Composition: “The Judicial Council is composed of,
(a)the Chief Justice of Ontario, or another judge of the Court of Appeal designated by the Chief Justice;
(b)the Chief Justice of the Ontario Court of Justice, or another judge of that court designated by the Chief Justice, and the Associate Chief Justice of the Ontario Court of Justice;
(c) a regional senior judge of the Ontario Court of Justice, appointed by the Lieutenant Governor in Council on the Attorney General’s recommendation;
(d) two judges of the Ontario Court of Justice, appointed by the Chief Justice;
(e) the Treasurer of the Law Society of Upper Canada, or another bencher of the Law Society who is a lawyer, designated by the Treasurer;
(f) a lawyer who is not a bencher of the The Law Society of Upper Canada, appointed by the Law Society;
(g) four persons who are neither judges nor lawyers, appointed by the Lieutenant Governor in Council on the Attorney General’s recommendation.
Making a Complaint: (This also process equally applies to complaints concerning Provincial Masters) The complaint must be in writing over your signature. It should include the date, time and place of the court hearing, the judges name, and the details of the misconduct, and whether it happened in a courtroom or in the public. Give as much information as is possible.
How are Complaints Processed:
Upon receipt of your complaint, a letter will be sent to you from the Council, acknowledging receipt of your complaint. A subcommittee of the Council will be struck (comprising of a judge and a community member) will investigate your complaint and make a recommendation to a larger review panel. This review panel (comprised of two (2) judges, a lawyer and another community member) will also carefully review your complaint prior to rendering a decision.
Decisions of the Council:
A decision may be rendered which has penalties ranging from issuing a warning to the judge, to recommending that a judge be removed from office. If the Council decides there has been misconduct by a judge, a public hearing may be held and the Council will determine appropriate disciplinary measures. You will notified of the decision in writing.
If the Council decides there has been no judicial misconduct, your complaint will be dismissed and you will receive a letter outlining the reasons for the dismissal.
For additional information the Ontario Judicial Council can be contacted via telephone at:
In Ontario, outside of Toronto: 1-800-806-5186 (toll free)
In Toronto (416) 327-5672
TTY/Teletypewriter 1-800-695-1118 (toll free)
Via Facsimile (416) 327-2339
Written complaints can be mailed to or faxed (see fax # above) to the following address:
The Ontario Judicial Council
P.O. Box 914
The Ontario Judicial Council and the Ontario Courts of Justice Act:
- Section 49. (1) Judicial Council:
- “The Ontario Judicial Council is continued under the name Ontario Judicial Council in English and Conseil de la magistrature de l’Ontario in French”.
- Section 49. (11) Open and closed hearings and meetings:
- “The Judicial Council’s hearings and meetings under sections 51.6 and 51.7 shall be open to the public, unless subsection 51.6 (7) applies; its other hearings and meetings may be conducted in private, unless the Act provides otherwise”.
- Section 49. (24) Confidential Records:
- “The Judicial Council or a subcommittee may order that any information or documents relating to a mediation or a Council meeting or hearing that was not held in public are confidential and shall not be disclosed or made public”
- Section 51.2 (2) Use of official languages of courts:
- “Complaints against provincial judges may be made in English or French”
- Section 51.3 (1) Complaint re provincial judge:
- “Any person may make a complaint to the Judicial Council alleging misconduct by a provincial judge”
- Section 51.4 Carriage of matter:
- “Once a complaint has been made to the Judicial Council, the Council has carriage of the matter”
- Section 51.5 Information re complaint:
- “At any person’s request, the Judicial Council may confirm or deny that a particular complaint has been made to it”
- Section 51.4 (1) (Role of the Sub-committee) Review:
- “A complaint received by the Judicial Council shall be reviewed by a subcommittee of the Council consisting of a provincial judge other than the Chief Justice and a person who is neither a judge not a Lawyer”.
- Section 51.4 (3) Dismissal:
- “The subcommittee shall dismiss the complaint without further investigation if, in the subcommittee’s opinion, it falls outside of the Judicial Council’s jurisdiction or is frivolous or an abuse of process”.
- Section 51.4 (6) Investigation private:
- “The investigation shall be conducted in private”.
- Section 51.4 (8) Interim recommendations:
- “The subcommittee may recommend to a regional judge the suspension, with pay, of the judge who is the subject of the complaint, or the judge’s reassignment to a different location, until the complaint is finally disposed of ”.
- Section 51.4 (10) Power of regional senior judge:
- “The regional senior judge may suspend or reassign the judge as the subcommittee recommends”.
How do I complain about a Provincially Appointed Justice of the Peace in Ontario?
Justices of the Peace are appointed by the Provincial Government. Their duties are assigned by a senior judicial officer – the Associate Chief Justice – Coordinator of Justices of the Peace. Justices of the Peace who are assigned to preside in court routinely conduct trials under the Provincial Offences Act and to preside over bail hearings (ie-criminal remand courts). When not presiding over the court, they perform a number of judicial functions, including issuing search warrants (telephone warrants, etc.). There are 350 Justices of the Peace in Ontario. In 2008 over 200 Justices of the Peace received over $150,000.00 and over 300 made in excess of $100,000.00
Justices of the Peace make mistakes and commit legal errors. When this happens, the decision of the Justice of the Peace may be appealed to a higher court. This is not a reason to lodge a complaint under the Justices of the Peace Review Council.
In fact the Review Council does not have the authority under the Justices of Peace Act to overturn a decision, only to decide whether the named Justice of the Peace has committed judicial misconduct.
What is Judicial Misconduct? Some examples: racial bias, gender bias, neglect of duty or failure to disclose a conflict of interest with one or more of the parties in a court case.
The Justices of the Peace Review Council has a mandate, pursuant to the Justices of the Peace Act, to receive and investigate complaints against Justices of the Peace. The mandate also includes reviewing and approving standards of conduct, deal with the continuing education plan and decide whether a justice of the peace may engage in remunerative work.
Who sits on the Justices of the Peace Review Council? The Review Council is made up of judges, justices of the peace, a lawyer and four (4) community representatives.
Do I need counsel (a lawyer) to submit a complaint? No, just a written complaint with your signature at the bottom.
How do I initiate a complaint? A complaint must be in writing over the signature of the author of the complaint and sent to the Justices of the Peace Review Council. The written complaint should include the following: date, time and place of the court hearing, the Justice of the Peace’s name, and as much detail as possible about the circumstances leading up to the complaint. If the complaint arises outside of the courtroom, then as much detail as possible should be written describing what you consider to constitute judicial misconduct. The written complaint can be mailed or faxed to the Justices of the Peace Review Council in Toronto.
How to contact the Justices of the Peace Review Council:
The Justices of the Peace Review Council
P.O. Box 914,
Adelaide Street Postal Station,
Telephone Number (Outside of Toronto) 1-800-805-5186 (Toll Free)
Telephone Number (Inside Toronto) (416) 327-5672
Facsimile Phone Number (to send complaint) (416) 327-2339
TTY/Teletypewriter 1-800-695-1118 (Toll Free)
What happens after I fax or mail my complaint to the Justices of the Peace Review Council?
Once it is received, you will receive an acknowledge of receipt of the complaint from the Review Council.
A three (3) member complaint committee of the Review Council will investigate your complaint and gather whatever information the committee deems necessary to complete its investigation (for example, copies of the transcript of your hearing). Each complaint committee is made up of a judge, a justice of the peace and a lay member of the Review Council (ie-community representative). Every complaint is investigated by the Review Committee under Section 11 of the Justices of the Peace Act.
Section 11 of the Act provides that the preliminary investigation into a complaint shall be held in private.
Section 11 of the Act also provides that, after investigation, the Review Council may dismiss a complaint if there is no judicial misconduct, invite the justice of the peace to attend before them in order to address issues raised in the complaint that are of concern to the Council, refer the complaint to the Chief Justice of the Ontario Court of Justice to speak to the justice of the peace about concerns raised in the complaint or order that a formal, public hearing into the complaint be held by a hearing panel made up of other members of the Review Council who were not involved in the initial investigation of the complaint.
If the complaint is deemed to be frivolous, under section 11 (19) of the Justices of the Peace Act, the complaints committee (see section 11 (15) ) may dismiss the complaint (if the complaint is considered “frivolous, an abuse of process or outside the jurisdiction of the complaints committee).
If a public hearing is held, and misconduct is found at the end of the hearing, the range of disciplinary measures that can be imposed extends from a warning to the justice of the peace about his or her conduct to a recommendation to the Legislature of Ontario that he or she be removed from office.
- Justices of the Peace Act – Section 8 (1) Removal from office:
- “A justice of the Peace may be removed from office only by order of the Lieutenant Governor in Council”.
- Section 8 (2) Grounds for removal:
- (a) “a complaint regarding the justice of the peace has been made to the Review Council;
- (b) the removal is recommended, following an inquiry held under section 12, on the ground that the justice of the peace has become incapacitated or disabled from the due execution of his or her office by reason of
(ii)conduct that is incompatible with the execution of the duties of his or her office, or
(iii)having failed to perform the duties of his or her office as assigned”.
Whatever decision is made by the Review Council, will be communicated in writing to the complainant.
The Justices of the Peace Review Council and the Courts of Justice Act:
- Section 10.1 Functions:
- “The functions of the Review Council are,
- (a)to consider all proposed appointments and designations of justices of the peace and make reports concerning them to the Attorney General;
(b)to receive and investigate complaints against justices of the peace; and
(c)dealing with and continuing education plans in accordance with subsection 14 (1)”.
- Section 11. (1) Investigation of complaints:
- “When the Review Council receives a complaint against a justice of the peace, it shall take such action to investigate the complaint, including a review of it with the justice of the peace, as it considers advisable”.
- Section 11. (9) Powers:
- “The Review Council has all the powers of a commission under Part II of the Public Inquiries Act, which Part applies to the investigation as if it were an inquiry under that Act”.
- Section 11 (10) Notice of disposition:
- “(6) When the Review Council has dealt with a complaint regarding a justice of the peace, it shall inform,
- (a)the person who made the complaint; and
(b)the justice of the peace, if the complaint was brought to his or her attention, of its disposition of the complaint.
- Section 11.1 (11) Dispositions by Review Council:
- “If the report recommends that the Review Council implement a disposition under this subsection, the Council may,
- (a)warn the justice of the peace;
(b)reprimand the justice of the peace;
(c)order the justice of the peace to apologize to the complainant or to any other person;
(d)order the justice of the peace to take specified measures, such as receiving education or treatment, as a condition of continuing to sit as a justice of the peace;
(e)suspend the justice of the peace with pay, for any period; or
(f)suspend the justice of the peace without pay, but with benefits, for a period up to 30 days.
How do I complain against a Lawyer or a Paralegal?
Most of this information is from the Law Society of Upper Canada’s website.
Effective May 1, 2007 Paralegal’s became regulated by the Law Society of Upper Canada. Since Paralegals became regulated they can now appear in the following courts to represent their clients:
The Ontario Courts of Justice (under the Provincial Offences Act – Ontario)
Small Claims Court
Criminal Court (to deal with summary convictions)
They are no longer allowed to represent people in Family Court
The legal profession is for the most part entirely self-regulated. In Canada, these legal regulatory bodies are found in the Province or the Territory where the lawyer practices. They are called “Law Society” or “Bar Association” and are responsibility for regulating the profession. They also have disciplinary committees which reprimand or discipline their members, if the members are guilty of misconduct. They all have a professional code of conduct which must be adhered to by the lawyer (and paralegals in Ontario) and if they do not conduct themselves in accordance with the “code of conduct”, disciplinary action can be administered by the Bar Association or Law Society. If their conduct is incompatible with the “code of conduct” then the Association or Society can impose sanctions as moderate as a “reprimand” to the most severe “revocation of license to practice”. If a lawyer (or paralegal in Ontario) loses their license, they can no longer earn a living as a lawyer/paralegal in Ontario or in any other Province or Territory.
To find out where the Bar Association or Law Society and some details of that Bar or Society, here is a website which will identify the one closest to you.
In Ontario: What if My Lawyer’s Bill is Too High?
I think this is a question asked in every City, County, Municipality, Province, State, Territory, Republic, Country in the world. Unfortunately, this paragraph only applies to Lawyers working in the Province of Ontario.
It is most important, when hiring (or retaining) the services of a lawyer to understand the billing practice of that lawyer or law firm that the lawyer is employed by. There are several ways that lawyers charge for their services:
- Retainer Fee
- most lawyers require a “retainer” before he/she agrees to go on record as your counsel in the legal matter which you are faced with. This normally means that the lawyer will assess your legal matter and will try to determine how much time will be involved, given his/her experience in similar matters and will base their charge of a retainer fee on this assessment. Normally this means that you would have to pay him/her an amount equal to what the entire case may cost, up front. This money is deposited into a client trust fund and is drawn upon, as the services are performed. The lawyer should provide you with a receipt for the retainer and should send you notices every time this fund has monies drawn from it. You must keep all of this paperwork. It is not unusual, if the matter is continuing, for the lawyer to ask for additional funds or at the end of the case, to ask for additional funds, if the original retainer did not cover the total expenses.
- Hourly Rate
- In addition to the retainer above, most lawyers, after receiving the retainer fee, will then charge an hourly rate for their services. You should know what this rate is, as it will affect the bottom line. Remember, the most experienced, more senior lawyers, of those with a “Q.C” after their name (Queen’s Counsel) will charge a lot more. Sometimes, the firm has a more junior lawyer, who charges less per hour, who the more senior lawyer may agree to oversee, while the work is being performed on your file.
- Flat Fee
- Some lawyers will charge a flat rate. A flat fee or flat rate means that the lawyer will charge you a particular fee, for a particular service, irrespective of the amount of time that is required to perform that service.
- Sliding Scale
- Some lawyers will bill you on a sliding scale. This means that if you have a low income or are economically challenged, you will be charged less.
- Pro Bono:
- This is when a lawyer performs the work free of charge.
Contingency Fees: For many, this arrangement is a practical way to hire a lawyer. Normally, those who cannot afford to retain a lawyer with a large retainer provided up front and do not qualify for legal assistance, prefer to sign an agreement before the action commences, which guarantees the lawyer a percentage of the monies awarded to the client. Normally this agreement excludes disbursement fees and only applies if there is a positive outcome in the matter. This type of deal cannot cover criminal or family law matters.
It is important to know, before hiring a lawyer, what their billing practices are, how much they will charge you, if they are willing to be paid in “installments”. It is important to know this in advance as it will lead to less problems at the conclusion of your relationship with that lawyer. A lot of post-trial problems can be avoided if you are referred by someone you know and trust, who can explain to you, their particular experience with that particular lawyer.
You can have your lawyer’s bill lowered. There is a process and procedure in place to do this through the Superior Court of Justice in your area of the Province, not through the Law Society of Upper Canada. You would have to make an appointment with an Assessment Officer or Master and this would have to be done within thirty (30) days of having received your bill from your lawyer for services rendered.
Before you make the decision, to challenge your lawyer’s bill before an Assessment Officer or Master, you must ask that your lawyer provide you with an itemized bill, which includes all of the work that he/she performed on your behalf. A lump sum bill is insufficient; it must break down the work (the dates, times, the hours, letters, appearances on your behalf, phone calls, photocopies, disbursements, etc.) and show the total owing.
The Law Society of Upper Canada does not have the authority to determine how much someone should be charged for legal services. Your lawyer must provide you with an itemized bill which shows a lump sum for fees and a breakdown of individual disbursements. Disbursements are monies that your lawyer has spent on your behalf to pay other parties who have provided services in support of your case (ie- specialists, etc.).
The Law Society of Upper Canada cannot reduce your lawyer’s bill. They can assist you in your endeavor to actually receive the bill from your lawyer if you have requested it and your lawyer and/or his/her assistant refuses to provide you with your bill. You can telephone the Complaints Department at the Law Society of Upper Canada at:
Outside of Toronto – toll free 1-800-268-7568
Toronto/GTA (416) 947-3310
Or you can write to:
The Complaints Department
The Law Society of Upper Canada
Osgoode Hall, 130 Queen Street West
Advice given by the Law Society if you feel your Lawyer’s Bill is too high:
Your lawyer or someone in your lawyer’s office can tell you exactly what your lawyer did in your particular case and how long it took. If you tell the lawyer why you feel the bill is too high, your lawyer may be willing to reduce the account.
What if I communicate with my lawyer, requesting that the bill be lowered and my lawyer declines my request?
You will have to contact the Assessment Office to make an appointment to have your bill reviewed. The Assessment Officer or Master, who reviews the bill, is an official of the Ontario Superior Court of Justice. Here are some of the Superior Court of Justice addresses in Ontario:
|Superior Court of Justice||Superior Court of Justice|
|10th Floor||Whitby Courthouse|
|393 University Avenue||601 Rossland Road East|
|Toronto, ON||Whitby, ON|
|M5G 1E6||L1N 9G7|
|(416) 327-5440||(905) 430-5800|
|Superior Court of Justice||The John Sopinka Court House|
|45 Main Street East, Suite 518B||150 Dufferin Ave, Suite 806|
|Hamilton, ON||London, ON|
|L8N 2B7||N6A 5N6|
|(905) 645-5252||(519) 660-3090|
|North Bay||Thunder Bay|
|360 Plouffe Street||277 Camelot Street|
|North Bay, ON||Thunder Bay, ON|
|P1B 9L5||P7A 4B3|
|(705) 495-8309||(807) 343-2700|
|145 Curtis Street||245 Windsor Avenue|
|P.O. Box 310 Station Main||Windsor, ON|
|St. Thomas, ON||N9A 1J2|
|N5P 3T9||(519) 973-6620|
|Superior Court of Justice||Frontenac County Courthouse|
|41 Court House Square||5 Court Street|
|Brockville, ON||Kingston, ON|
|K6V 7N3||K7L 2N4|
|(613) 345-5895||(613) 548-6811|
If you are not sure which Superior Court of Justice office serves your area, for the purpose of having an Assessment of your lawyer’s bill, you can contact the Law Society’s Complaint Department in Toronto (Outside of Toronto – Toll Free 1-800-268-7568 or in Toronto (416) 947-3310) and speak with one of the Customer Service Representatives for your local assessment office phone number.
You have one (1) month from the time your lawyer sent you the bill to go to the assessment office to start the assessment process. If you delay and wait beyond a month to begin the process, you will be forced to seek permission from a judge to initiate the assessment process. The judge will only provide you with permission if your reasons for filing late are sufficient.
Here are the three (3) steps in the assessment process:
- You must contact the Assessment Office and make an appointment to have your bill reviewed.
- You must serve the lawyer (from whom the complaint arises) with the notice of appointment (serve him/her by process server, hand deliver it yourself or send it to his/her office, by registered mail– through Canada Post Corporation).
- You must attend the hearing and can be accompanied by another lawyer.
What does each step involve?
- Notice of Appointment: to receive a notice of appointment, go to the Assessment Office with the original along with two (2) copies of your lawyer’s bill. You will have to pay the requisition to get the Notice of Appointment?Remember to do this within a month of receiving your lawyer’s bill. The clerk at the counter will give you an appointment for the hearing. There is a fee, to assess a solicitor/client bill, which must be paid in cash, certified cheque or a money order.
- Serve the Papers on Your Lawyer: You must make sure that your lawyer gets a copy of the assessment papers. You can mail them to your lawyer by registered mail (cost of $9.82 (includes standard envelope not weighing more than 30 grams, domestic postage (.59c + registration fee of $ 8.10 plus 13% H.S.T (Hated Sales Tax)) or you can deliver them in person. Canada Post offers tracking online or via telephone and quick, safe and secure delivery. If you deliver them, ask someone in the office to sign and date the documents, which you must keep to prove that you delivered the papers. If no one will sign or refuses to sign for the documents you delivered, you will have to prepare what is known as an affidavit of service, stating with whom you left the copies, the place, date & time. This document must be sworn by a Commissioner of Oaths. Blank forms are included in the materials you receive from the Assessment Office when you get a Notice of Appointment.
- The Assessment Hearing: You may want to ask a lawyer to represent you at the assessment hearing. Or, you can represent yourself.
The hearing is informal. The Assessment Officer or the Master will give your lawyer a chance to talk. Remember to bring documents about your case with you. You may also want to ask a person who was there when your lawyer about fees to come to the hearing to say what was said.
The Assessment Officer or the Master will consider many things when reviewing your lawyer’s bill, including any information about a fee arrangement you may have had with your lawyer, the amount of time your lawyer spent on your case, the level of expertise required for your case, the importance of the case to you, the amount of money involved, the success, or lack of success, the amount of money you have already paid your lawyer, and, in some cases, your financial resources.
The Assessment Officer or the Master can decide that your lawyer’s bill is fair or that it is too high. If it is too high, the Assessment Officer or Master can reduce it. If you feel that the conduct of the Master is in question and you would like to complain about his/her conduct, you can do so. Please go to the “How do I complain about a Provincially Appointed Judge” section of this site (you would complain about a Master, in exactly the same way that you would complain about a Judge through the Ontario Judicial Council under the Courts of Justice Act)
What do I do if I believe that my lawyer or paralegal has been dishonest and has ripped me off?
The Law Society of Upper Canada’s “Compensation Fund”:
The Compensation Fund helps clients who have lost money due to a lawyer’s or paralegal’s “dishonesty”. It is paid for exclusively by the lawyers and paralegal’s of Ontario. Over the years, millions of dollars have been paid to clients as a result of dealing with a dishonest lawyer or paralegal.
If you have had the unfortunate experience of having dealt with a dishonest lawyer or paralegal, this fund can reimburse you for part of your loss. Typically, this fund will pay for losses involving money from estates, trust funds held for real estate closings and from settlements in legal actions. The maximum payout to a client that has had dealings with a dishonest lawyer is $ 100,000.00.
If you want to access this fund, you have to contact the Law Society of Upper Canada, within six (6) months of becoming aware of the loss. You should send a letter outlining the loss and explaining the circumstances leading up to it. Once the Law Society receives your letter, a package will be sent to you with all of the relevant details.
A staff lawyer assigned to the case will make a recommendation to the Compensation Fund’s review committee, which is responsible for making the final decision. In certain cases, a referee will hear your claim. The referee in turn, will prepare a written report which is forwarded to the review committee.
In Ontario, the Law Society of Upper Canada regulates lawyers and paralegals. There are Rules of Professional Conduct for lawyers and now, there are Paralegal Rules of Conduct. This code of conduct must be followed and it expects a high standard of behaviour from both lawyers and paralegal’s. The actual codes of conduct can be accessed through the Law Society’s website. If the lawyer or paralegal has breached the code or rules of conduct, then a complaint should be made through the Law Society of Upper Canada . The complaints can be about a lawyer’s behaviour (ie- they were unprofessional, they discriminated against you, they harassed you, etc.) or their quality of work (ie-they were unprofessional, they didn’t show up for the hearing/trial, they forget to perform work that needed to be performed or they were negligent in their duties). If the Law Society of Upper Canada’s disciplinary body finds a lawyer or paralegal guilty of professional misconduct, that lawyer or paralegal can be disbarred, which means that his/her licence to practise law is revoked; in addition to being disbarred, there can be other consequences for disreputable behaviour.
To submit a Complaint to the Law Society of Upper Canada:
To submit a “complaint” in Ontario, the complaint must be sent, in writing, to the Law Society of Upper Canada. A Complaint Form/Information Sheet can be accessed online or by calling the Law Society of Upper Canada’s “Complaint Services” at 1-800-268-7568 (Toll Free Outside of Toronto Area) or (416) 947-3310 (in Toronto/GTA). Upon receiving and filling out the four (4) page complaint form, it can be faxed to the Law Society of Upper Canada at their facsimile phone number at 416-947-5263 (there is no “toll free” fax number). You cannot fill the complaint form online and transfer it to the Law Society, you must print it or phone and order it and upon filling it out, you must fax it or mail it to:
Complaints Services – The Law Society of Upper Canada
Osgoode Hall, 130 Queen Street West
The Law Society of Upper Canada’s hours of operation is: Monday to Friday – 9 a.m. to 5 p.m.
At the end of the form, paragraph 5. ACKNOWLEDGEMENT, CONSENT AND SIGNATURE you’ll see the following:
I have read and I understand the following:
- I understand that the Law Society will share some or all of the information and documentsthat it receives from me and other parties with the lawyer or paralegal complained about.
- I agree to the Law Society sharing and providing copies of information and documents that it receives from me with the lawyer or paralegal complained about.
- I understand that the Law Society may not be able to process my complaint with supporting documents
I have attached copies of documents that relate to my complaint.
Date Signed Signature of Complainant
Note: If you are filing this complaint for another person who was the lawyer or paralegal’s client or who was the party directly affected by the lawyer or paralegal’s conduct, we may need a signed authorization from this other person in order to proceed with the complaint. There is an authorization form available on our website. (you do not need a file number to complete the form. If you hold a power of attorney for the other person, you can include a copy of the power of attorney with the Complaint Form.
Please note we cannot discuss your personal situation until you have provided your Complaint Form to us.
The Law Society suggests that before you lodge a complaint, that you should discuss your dissatisfaction with the lawyer in question and try to work something out (ie- lower the bill, apology, etc) before initiating this process.
If you are going to file a complaint, do this as quickly as possible after the grounds for the complaint became known to you.
If you have any questions about how to file your complaint, call the Law Society of Upper Canada’s “Client Service Centre” outside of Toronto, Toll Free at 1-800-268-7568 or in the Toronto GTA area 416-947-3310.
When the Law Society of Upper Canada’s “Complaints Department” receives your complaint, an acknowledgement of receipt of the complaint will be mailed to you with a assigned “file number” for that specific complaint. An investigation will begin shortly thereafter.
The Complaints Department may attempt to intervene in the matter and try to mediate a solution agreeable to yourself and the lawyer in question.
If the Law Society of Upper Canada decides that the complaint has foundation, they may take disciplinary action against the lawyer or paralegal in question.
Your file may be closed by the Complaints Resolution Investigations and if you disagree, you can have that decision reviewed by an Independent Commissioner.
The complaint may be referred to the Tribunal, where a number of outcomes are possible, including the dismissal of the complaint, up to and including the disbarring of the lawyer or paralegal.
In Ontario, lawyers and paralegals must be members of the Law Society of Upper Canada, to do the work that lawyers and paralegals are paid to do. The Law Society of Upper Canada’s motto is “Let Right Prevail”.