Legal Blog

Costs

Saleh v. Nebel, 2015 ONSC 3680

Costs normally follow the event (i.e. the loser pays them to the winner, subject to offers to settle and different scales of the awards). However, costs are discretionary and the court can depart from basic principles if there are good reasons to do so, such as the misconduct of a party, miscarriage in procedure, or oppressive or vexations conduct of proceedings.

In this case, the plaintiff was claiming damages for personal injury. Liability was acknowledged and a trial was held on damages. The jury, after a 10-day trial, awarded $30,000; the judge held that that the injuries did not meet threshold and dismissed the action.

The judge reviewed the defendant’s bill of costs and decided that the amounts claimed were reasonable; he assessed the costs at $100,000 all in.

However, the judge did not award those assessed costs to the plaintiff. Why? He found that the conduct of the defendant’s lawyer before, during, and even after, trial was objectionable. In particular, he was upset that the defendant’s lawyer cavalierly dealt with a trial management order set by the pre-trial judge and the trial judge’s own timelines for submissions. The listing of the breaches and inappropriate behaviour were set out in gory detail for about 80 paragraphs. Some of these paragraphs follow:

49 I note as well that the time taken up by counsel negotiating was hours and not days or weeks. The issue was not so much the overall time used or not used on negotiations while the jury cooled its heals. That is an important issue to be sure. But I am not saying that this case was particularly egregious in that regard. Rather, what was striking was just the matter-of-fact manner by which counsel had ignored Justice Stinson’s effort to help prepare the trial in advance so as to make the trial run more efficiently. How could there be a near mistrial due to a fundamental change in expert position during the trial? Why were the experts’ reports not delivered well in advance? Why would counsel be requiring proof of authenticity of routine medical files and documents on the first day of trial? Why were issues not worked through in advance so that a definite list of evidence issues could be raised with the judge for resolution at the outset of the trial? Why were the issues in the trial not sufficiently defined so that jury questions could be prepared and ready to go? How could there be voluminous non-agreed documents briefs when less than 20 pieces of paper were really relevant and probably less than five were truly important? Why was a damages assessment with just eight witnesses going to take two weeks? Had no one spoken about the case? The case was a disorganized mess that was proceeding before it was ready despite a very detailed court order designed to help the parties bring order to the process.

53 By disagreeing to the email “in its entirety”, defendant’s counsel appeared to be disagreeing with the assertion that the parties had been ordered to prepare a joint document brief and had agreed to do it. This is inexplicable. It is also undermined by his next sentence basically inviting a draft index. So, was the defendant’s counsel just being disingenuous and uncooperative? He was certainly not acting within the spirit or the words of Justice Stinson’s order. He was also failing to fulfil his Trial Management responsibilities to cooperate civilly with opposing counsel to ensure that a fair, efficient trial was prepared and ready to go. Moreover, in light of his own email, Mr. Mester’s complaint in his affidavit that the joint brief was prepared without his input rings rather hollow and teeters on misleading.

56 The defendant’s counsel responded rejecting almost the entire brief including specifically rejecting the plaintiff’s OHIP summary and prescription summary. He rejected putting expert reports into evidence when the experts would be testifying. He required that all medical opinion evidence in the treating doctors’ and hospital notes be redacted. He objected to the property damage insurer’s file being in evidence. He also refused to share the costs of the joint brief.

73 The defendant’s counsel provided no explanation for his two clear representations that these documents did not exist. As was the case with Dr. Cameron’s January 7, 2015 report, it appears that the defendant’s counsel made statements that were not correct and, in each case, delivered important materials only on the very eve of trial despite the order of Stinson J., lawyers’ ethical obligations to fulfil undertakings, and the lawyers’ specific certification of their understanding of the need to be ready for the trial. The defendant’s counsel in each case was either deliberately misstating the truth or was careless as to the truthfulness of his representations. Neither is acceptable.

84 Ignoring typos and grammar, as atrocious as they both were, it is apparent that the defendant’s counsel does not seem to be concerned with the need to comply with procedural directions and orders of the court; be they Justice Stinson’s order or my schedules.

89 … While I am dealing with matters principally from the standpoint of counsels’ duties as officers of the court concerning Trial Management in particular, there is little doubt that many of the issues raised in this hearing are equally issues under all of these standards. The lack of civility to the opposite party displayed by the defendant’s counsel was palpable in his emails. Moreover, there are certainly ethical issues raised by the incorrect representations of fact made by the defendant’s counsel to the plaintiff’s counsel. Many of these questions are for a different forum. Although I refer principally to Trial Management matters, I am not to be taken as ignoring the many applicable standards that may have been violated by the defendant and his counsel.

90 Trial Management Orders, scheduling orders and directions, and procedural orders made by the court are orders of the court to which compliance is required. It may be that Mr. Mester’s client is satisfied with the outcome of the trial. The court however had numerous concerns as to the manner by which the defendant won….

95 Mr. Mester’s response on the joint book of documents was unacceptable. His handling of late medical reports — without notice to the plaintiff’s counsel and actively misleading him – was also unacceptable. His response on the photographs was unacceptable. His refusal to deal with documents, to share joint costs, and his assertions that all documents would have to be proved appears to have been positions that were not adopted in good faith.

103 Identifying the documents to be put into evidence requires counsel to think about their examinations and cross-examinations in advance. They need to compile a list of documents that they wish to put into evidence. Then they need to share their lists with opposing counsel to avoid duplication and to identify and iron out any admissibility concerns before trial. Trial counsel must meet and go through document and evidence issues so as to prepare their joint document briefs and to agree on the process issues to be put before the trial judge.

106 While it is ultimately true that this case was finished in 8 trial days, the point is that it never should have been scheduled for that long. Had counsel applied their minds to their witness lists and documents in good faith, as required by Stinson J., this case should have taken just a few days. Another trial could have been scheduled and heard in the second week. Playing uncivil, tactical, inappropriate, old-school, trial by ambush games like: threatening to require proof of obviously valid records, holding back important documents until the last second, failing to fulfil undertakings until the eve of trial, delivering new expert’s reports during the trial, saying untrue things to counsel opposite (whether knowingly or not), failing to prepare examinations in advance to “wing it” at trial, refusing to agree to the admissibility of relevant documents while requiring changes to be made to irrelevant ones, refusing to share costs of joint expenses, refusing to cooperate on court ordered process matters, are all wrongful. Most of these things have been considered unprofessional sharp practice and inappropriate for decades.

To add insult to injury, the judge ordered the defendant to pay to the plaintiff $441.13, representing one half of the copying costs of the joint document brief.

Written by Jonathan Speigel Jonathan Speigel, the founding partner of Speigel Nichols Fox LLP, leads the litigation and construction practices.