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 in 1465778
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
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 1465778 decision) 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
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
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
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.
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