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 its counsel.
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 for:
(1) a lengthy list of witnesses and documents;
(2) an unwillingness to concede authenticity and admissibility of certain routine medical records;
(3) the failure to agree on a joint book of documents;
(4) 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 clients.