One of the first lessons in litigation is the principle that costs follow the event. We quickly realize, however, that costs are within the discretion of the court and judges can tailor orders in an attempt at behaviour modification.
The costs decision of Superior Court Justice Fred Myers in
Saleh v. Nebel is a worthy but failed attempt at behaviour modification. The plaintiff commenced litigation in respect of injuries suffered during a motor vehicle accident. In finding that the plaintiff had failed to satisfy the threshold of a serious and permanent disfigurement or impairment, the judge concluded the plaintiff “will break the law and lie for money” and had “grossly exaggerated his pain.”
The jury was equally unimpressed with the plaintiff’s case, awarding a mere $30,000 in general damages.
Of course, the jury was unaware of the $30,000 deductible, which reduced the potential award to nil.
The action was accordingly dismissed and the judge sought costs submissions. The defendant was deemed to have been successful in the action based on the failure of the plaintiff to meet the threshold.
Normally, the court would have granted costs to the defendant, but that’s where the judge’s behaviour modification came into play.
Based on the actions of defence counsel, the judge decided to deprive the defendant of what he said would have been an award of $100,000 in costs.
The judge was clearly unhappy with defence counsel repeatedly ignoring court or failing to deal with mandated scheduling orders and deadlines. But that isn’t why the judge withheld $100,000 in costs. What moved the judge was the conduct of defence counsel in “playing uncivil, tactical, inappropriate, old-school, trial by ambush games.” The judge described those games as “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.”
That such tactics and uncivil conduct still occur in 2015 betrays a lack of understanding of or perhaps not caring about the Law Society of Upper Canada’s Rules of Professional Conduct. Worse, it’s a disservice to clients and the public.
Defence counsel advised the court that his client was happy with the trial result and didn’t require any reduction in its legal fees. Indeed, there was evidence that even if the court ordered defence counsel to refund any costs to his client, it wouldn’t require him to do so.
In other words, the client, an insurance company, approved of the conduct of its counsel. And why not?
The conduct engaged in by defence counsel was effective. It also made the litigation more challenging and expensive for the plaintiff. My first impression is that Myers’ order was just and proper. But upon further reflection, I believe Myers’ order will serve no real purpose. Defence counsel didn’t receive any adverse consequence. It was his client that appears to have suffered the adverse financial consequence.
But who was the real client? It wasn’t the named defendant; it was an insurance company. And who ultimately pays the defence costs? That would be the public through the payment of insurance premiums.
While Myers attempted to engage in behaviour modification, it’s doubtful his order will have much practical impact. Something more is necessary. If courts really want to discourage ambush games, they’ll have to come up with more creative solutions.
Alan Shanoff was counsel to Sun Media Corp. for 16 years. He currently is a freelance writer for Sun Media and teaches media law at Humber College. His e-mail address is [email protected].
