Canada: Conduct Of Defence Counsel: A Lesson From The Bench

Last Updated: July 14 2015
Article by David LeDrew

The Ontario Superior Court of Justice recently set out a laundry list of items that counsel should refrain from doing when defending a claim.

In Aiyub Saleh v. Ludwig Nebel, 2015 ONSC 3680, Justice Myers gave defence counsel a shellacking.  At 22 pages, it is a lengthy read for a costs endorsement and well worth perusing.

The plaintiff brought the claim for damages stemming from a motor vehicle accident.  An eight day trial proceeded in early 2015.  The jury awarded $30,000.00 for general damages and nothing else.  The general damages were eradicated by the deductible, pursuant to s. 267.5(7) of the Insurance Act, R.S.O. 1990, c. I. 8 ("Insurance Act") and O. Reg. 461/96, s. 5.1, as amended by O. Reg. 312/03.

After the jury's decision, Justice Myers held that the plaintiff's claim did not meet the threshold of a permanent and serious impairment pursuant to s. 267.5(12) of the Insurance Act.

Counsel then argued for costs of the action.  Typically (and simply put), to the victor go the spoils.  The defendant was successful and, pursuant to r. 57 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 ("Rules"), counsel for the defendant sought costs.  The defendant did not make a r. 49 settlement offer.

In his reasons, Justice Myers indicated that he was going to fix the defendant's costs at approximately $100,000.00, inclusive of disbursements and HST under the normative approach based on outcome.

But in this case, the defendant did not receive any costs award.  Justice Myers looked to s. 131 of the Courts of Justice Act, R.S.O. 1990, c. C. 43 for the inherent power to award costs, which states the following:

Subject to the provisions of an Act or rules of court, the costs of and incidental to a proceeding or a step in a proceeding are in the discretion of the court, and the court may determine by whom and to what extent the costs shall be paid.

Why did Justice Myers deprive a successful party its costs?  This was likely because the judge was displeased with the conduct of defence counsel before, during and after trial.

On December 3, 2014, a pre-trial conference took place before Justice Stinson.  Justice Stinson made a trial management order that included the following:

  • two of the plaintiff's treating physicians were required to provide copies of their up to date treatment records;
  • counsel for the parties were to review the lists of proposed witnesses to confirm that the trial could be completed within the scheduled 10 day window, failing which a new trial would be required;
  • the defendant was to exchange updated medical reports;
  • jury questions were to be prepared for the start of trial;
  • a joint document brief was to be prepared prior to trial; and
  • will say statements for non-party witnesses were to be provided 14 days prior to trial.

Both plaintiff and defence counsel signed the pre-trial certification acknowledging their obligations.
At the beginning of trial, counsel for the parties presented lengthy witness lists.  Justice Myers felt that this violated the trial direction of Justice Stinson.

Defence counsel advised the court that the plaintiff would need to prove the authenticity and admissibility of every single document the plaintiff proposed to put into evidence.  The effect of this would be to lengthen the trial through a laborious exercise of bringing in witnesses and confirming the authenticity of documents.  An agreed upon joint document brief would have resolved this issue.  Had counsel complied with Justice Stinson's order for a joint document brief, this would not have been an issue.

Also, contrary to the pre-trial judge's direction, counsel had not agreed upon jury questions.

As the trial proceeded, counsel took numerous breaks to discuss issues that could have and should have been agreed upon in advance of trial.

Perhaps if this was the extent of Justice Myers' concerns, the defendant would have obtained a costs award.  Unfortunately, this was not the case.  In the threshold ruling, Justice Myers ordered that a costs outline was to be prepared by the defendant by March 6, 2015.  This did not happen. 

On March 13, 2015, a call was arranged between the parties.  Justice Myers sought to address the breach of the pre-trial order of Justice Stinson.  Specifically, Justice Myers was concerned that counsel may have caused costs to be incurred without reasonable cause - by undue delay, negligence or other default (r. 57.07 of the Rules).

Defence counsel's costs submissions were received on April 7, 2015.  Plaintiff counsel's costs submissions were delivered on May 6, 2015. 

Counsel for the plaintiff submitted an affidavit setting out his efforts to agree to a joint document brief.  Email exchanges between the parties were produced that indicated that defence counsel disagreed with the proposal.  Defence counsel had demanded an index to the brief.  Plaintiff's counsel provided an index to the proposed joint documents brief and requested payment for copying.  Defence counsel rejected the index and refused to pay for copying costs, but failed to propose a solution to the problem.

The affidavit contained a number of emails reflecting contradictory statements provided by defence counsel.  For example, defence counsel initially advised that there were no colour photographs from the property damage file and then produced colour photographs.  Justice Myers found that the statements made by defence counsel were either deliberately misstating the truth or careless – neither option being acceptable.

In reviewing correspondence from defence counsel, Justice Myers commented on the atrocious typographical errors and grammar.  Justice Myers wrote:

After the trial, I would have been inclined to refer [trial defence counsel] to the Law Society of Upper Canada for mentoring and to suggest that he take the Intensive Trial Advocacy Workshop offered by Professor Garry Watson each summer.  However, in light of [trial defence counsel's principal]'s advice that every position taken by [trial defence counsel] was made with his oversight and with his support, the issue is not just inexperience or a lack of education in trial advocacy skills of a junior lawyer assigned to the trial.

Even though the trial proceeded over a period of 8 days, Justice Myers suggested that "it never should have been scheduled for that long".

With respect to the tactics deployed by defence counsel, Justice Myers held that:

In light of the defendant's failure and unwillingness to comply with the order made by Stinson, J., its late disclosure of important documents, counsel's uncivil conduct leading up to and at the trial, and the repeated failures of the defendant's counsel to comply with the direction and orders of the court, it is appropriate for the court to exercise its discretion to deny the successful defendant its costs.  The uncontested evidence of misconduct by the defendant's counsel is good reason to exercise the court's discretion to depart from the normal rule that costs presumptively follow the event.

The defendant was ordered to pay to the plaintiff the sum of $441.13 for one-half of the copying costs of the joint document brief despite the trial success.

This decision emphasizes the need for adequate disclosure in advance of trial.  It highlights the importance of rigid adherence to lawyers' undertakings and ethical obligations.  If adequate disclosure occurs, cases will be better suited for trial or resolution.

Justice Myers characterized the civil justice system as broken.  This no-nonsense approach to costs should have the effect of ensuring that counsel pay close attention to the requirements of trial preparation – including following the directions of the court.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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David LeDrew
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