On June 8, 2015, Justice Myers released his costs decision in Saleh v. Nebel in which he deprived
the defendant of a $100,000-cost award because of the manner in
which counsel prepared for and presented the case at trial. Though
the facts of the case are unremarkable, its lesson is important:
co-operation between counsel in mounting a trial is no longer an
aspiration but a requirement.
The action arose out of an motor vehicle accident. The defendant
admitted liability and an 8 day jury trial took place regarding
damages. There were some hours (not days) wasted during the trial
period while counsel conferred and agreed on various document
issues. The plaintiff was initially awarded $30,000 for general
damages but Justice Myers dismissed the action on the basis that
the plaintiff did not meet the "serious injury" threshold
under Section 267.5(5)(b) of the Insurance Act which
requires that a plaintiff demonstrate a permanent and serious
disfigurement or impairment.
The defendant relied on the outcome of the threshold decision as
a basis for costs. Justice Myers specifically asked for written
costs submissions addressing whether clients should be held
financially responsible for trial inefficiencies caused by
counsel's failure to comply with an order that the parties
produce certain documents and co-operate to streamline the trial
process. Justice Myers relied on rule 57.07 of the Rules of
Civil Procedure, which provides that a party can be found
liable for costs incurred without reasonable cause.
The parties submitted affidavit evidence setting out the efforts
made prior to the trial to narrow the issues. A case conference was
held wherein the defendant law firm confirmed that the proceeding
was conducted with the approval and supervision of the firm's
managing partner, and confirmed that the client was very pleased
with the outcome and the manner in which the trial was conducted by
What Went Wrong for the Defence?
Justice Myers took great issue with the lack of effort taken by
counsel to narrow the issues and simplify the documentary record
before the court. Counsel, largely for the defence, were criticized
a lengthy list of witnesses and
an unwillingness to concede
authenticity and admissibility of certain routine medical
the failure to agree on a joint book
and introducing a new and significant
medical expert report a few days into trial.
What can be taken from the decision is that counsel are now
expected to co-operate in terms of producing a joint book of
documents, an Agreed Statement of Facts, and to discuss the length
of trial and use of electronics. Counsel are also expected to
produce expert reports well before deadlines and to resolve any
procedural disagreements prior to trial. Such matters can no longer
be left until the eve of trial, which is common practice given the
predominance of late-stage settlements. Further, any directions
made in pre-trial orders are not to be considered guidelines but
actually mandatory deadlines that counsel should meet unless
permission is obtained from the court in advance.
As the courts attempt to increase trial efficiency, counsel are
more than encouraged to confer prior to trial —a failure to
co-operate may have costly consequences for lawyers and their
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