Réjean Hinse was wrongfully imprisoned for 15 years for a crime he didn’t commit. Though he was granted parole, he was only acquitted after 30 years and a successful appeal to the Supreme Court of Canada. Hinse sued the federal and Quebec governments and the town of Mount-Laurier for damages arising from his wrongful conviction. Hinse’s lawyers acted pro bono. He settled with the municipal and Quebec governments for $5.5 million but continued to claim damages from the federal government. In 2011, the trial judge awarded him $5.8 million, including $440,000 for the value of the legal services provided by his pro bono lawyers. The trial judge relied on the Ontario Court of Appeal’s decision in1465778 Ontario Inc v 1122077 Ontario Ltd, in which the Court held there is no prohibition on an award of costs in favour of pro bono counsel, even in private actions (Bennett Jones’ Jeffrey Leon was counsel to the Advocates’ Society).

On appeal, the Court of Appeal reversed the judgment, finding that the exercise of the Minister’s power of mercy is protected by a qualified immunity and the Crown’s decision was not made in bad faith nor with malice. The Supreme Court of Canada upheld this decision.

Regarding costs, the Court of Appeal cautioned that common law precedents (in this case, the 1465778decision) should not be “indiscriminately imported” into civil law proceedings, where the civil law concept of “extrajudicial fees” differs from the common law concept of costs. In Quebec law, only in exceptional cases can a party be required to pay the fees of lawyers retained by the opposing party. There must be a fault committed by the other party, damage, and a causal connection between the fault and the damage. In common law provinces, costs are traditionally awarded to indemnify the successful party for expenses incurred either in defending an unfounded claim (if the successful party is the defendant) or in pursuing a valid legal right (if the plaintiff prevails). The Supreme Court of Canada agreed that the trial judge’s reliance on 1465778 and other Ontario precedents was inappropriate because of these differences.

Hinse argued, in any event, that he was entitled to extrajudicial fees under article 1608 of the Civil Code of Quebec, which states: “[t]he obligation of the debtor to pay damages to the creditor is neither reduced nor altered by the fact that the creditor receives a benefit from a third person, as a result of the injury he has suffered, except so far as the third person is subrogated to the rights of the creditor.” Pro Bono Law Ontario (represented by Bennett Jones’ Ranjan Agarwal and Nathan Shaheen) and Pro Bono Québec argued that Hinse’s lawyers indemnified Hinse, a victim of an abuse of process, for the injury he sustained and this intervention did not release the federal government from its obligation to compensate him for extrajudicial fees. Though the Supreme Court of Canada dismissed Hinse’s appeal, it affirmed this interpretation of article 1608. Further, there is no obligation for the retainer agreement to expressly state that extrajudicial fees that might be awarded are to be paid to counsel (¶178). The Ontario Court of Appeal’s decision in 1465778 seems to suggest, at least as a best practice, that pro bono lawyers should make express fee arrangements with their clients that allow the costs to be paid to the lawyer.

For pro bono lawyers and their clients, the Supreme Court of Canada decision should be read as an affirmation of the principles espoused in 1465778: there is no bar to awarding costs to a party in private litigation even if his or her lawyer is acting pro bono.