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Civil Litigation Dicta - Costs - Right to Make Costs Submissions. Afolabi v. Law Society of Ontario
In Afolabi v. Law Society of Ontario (Ont CA, 2025) the Ontario Court of Appeal allowed an LSO appeal, this from numerous partly successful JR applications relating to suspected lawyer-licensing examination cheating:
The court considers the right of parties to make costs submissions, here in JR procedures:[108] While not strictly necessary, I will address the LSO’s submission that the Divisional Court’s failure to hear the parties on costs was a procedural error. In my view, it was.
[109] Procedural fairness dictates that an affected party has the right to be heard: Knight v. Indian Head School Division No. 19, 1990 CanLII 138 (SCC), [1990] 1 S.C.R. 653, at p. 683. Because costs orders affect the parties, as a general proposition, they should be heard on that matter. In this case, had the Divisional Court given the parties an opportunity to make costs submissions, the LSO could have made its submissions relating to the degree of success the Applicants had achieved on the Applications. Furthermore, it could have provided the Divisional Court with information on its resolution offers. Both of these matters are relevant considerations that the Divisional Court should have taken into account when deciding costs of the Applications.
[110] I recognize that the parties filed bills of costs before the hearing but that is not tantamount to them having had the opportunity to make costs submissions. This is evident as neither of the points raised in the foregoing paragraph were – or could have been – reflected in the LSO’s bill of costs.
[111] Accordingly, in my view, denying the parties an opportunity to make costs submissions was a breach of procedural fairness.
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