Lawyer Loses Cost Award Due To Failure to Comply With Case Management Order
A recent Ontario Superior Court decision on costs demonstrates the consequences of failing to comply with a Case Management Order. The action was one for damages arising out of a motor vehicle accident, in which liability was admitted. After an eight day trial, the jury awarded the plaintiff $30,000 which fails to meet the threshold of seriousness for statutory immunity. The result was a dismissal of the action.
In deciding whether costs should be awarded to the defendant, the judge first determined that the award should be treated as a judgment even though the plaintiff received nothing. Costs were then fixed in the amount of $100,000.00.
Before making the award of costs, the trial judge looked at the issue of whether the Order of the Case Management judge had been breached. The Case Management judge had ordered a list of steps that needed to occur prior to trial. These steps required counsel to communicate and cooperate.
In the cost submissions, plaintiff's counsel produced a fulsome record demonstrating attempts to communicate and complete the steps prior to trial. Despite these attempts, the steps remained incomplete lengthening the trial unnecessarily and almost resulting in a mistrial. Specifically:
Defendant's counsel unreasonably required plaintiff's counsel to prove the admissibility and authenticity of a significant number of documents including business records;
Defendant's counsel refused to cooperate in creating or editing a joint book of documents;
Medical reports were not exchanged prior to trial;
Counsel had not agreed on jury questions;
In exercising discretion to deny the cost award of $100,000, the judge stated:
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.
[107] 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 directions 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 Lesson: The consequences for failure to comply with an Order are significant. This case sends a strong message from the bench that cooperation between counsel is a requirement of preparing for trial.
Saleh v Nebel, 2015 ONSC 3680 (ONSC) https://www.canlii.org/en/on/onsc/doc/2015/2015onsc3680/2015onsc3680.html?resultIndex=1
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