Judge critical of defence counsel for conduct of trial results in failure to order costs

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Case example

In the 2015 trial of Saleh v Nebel, the judge was critical of the way counsel for the defendant conducted themselves in the trial. Counsel failed to adequately prepare prior to trial, notably witness lists and documents as required in the pre-trial conference by Stinson J, resulting in a repeated waste of court time and resources.

Defence counsel exhibited unprofessional behaviour before, during and after trial, and this misconduct provided reason for Justice Myers to discipline counsel and depart from the normal rule of allowing the successful defendant their costs. In this case, the plaintiff Aiyub Saleh brought action against the defendant Ludwig Nebel for damages arising from a motor vehicle accident, for which the defendant admitted liability.

After an eight day trial, the jury ruled in the plaintiff's favour and awarded him $30,000 for general damages but nothing for loss of income/future care. Later, in response to the defendant's threshold motion, Justice Myers ultimately ruled to dismiss the case, on the grounds that the plaintiff's claim did not meet the threshold of seriousness which is required to overcome the statutory immunity provided in s.267.5(5)(b) of the Insurance Act, R.S.O. 1990 c.I.8 ("the Act"). In other words, Justice Myers decreed that the plaintiff's claim was not serious enough to warrant legal action and costs, including ones to the defendant.

Subsequent to the ruling, the defendant successfully sued for costs in the amount of $100,000, to which Justice Myers decreed he was entitled after reviewing the evidence. However, due to defendant counsel's breach of the Trial Management Order set by Justice Stinson, Justice Myers declined to award the defendant any costs of action. Thus, the two fundamental issues informing Justice Myers' ruling in this case were: failure to meet the threshold of seriousness and counsel's failure to comply with the pretrial Trial Management Order of Judge Stinson.

Justice Myers ultimately ruled that the plaintiff failed to meet the threshold of seriousness which is a requirement of s.267.5(5)(b) of the Insurance Act. In addition, paragraph three (3) of s.267.5(7) of the Insurance Act notes that general damages awards are subject to a mandatory $30,000 deductible.

As the amount awarded to the plaintiff by the jury totaled $30,000, applying the deductible would have, in effect, nullified the monetary award. Therefore, Justice Myers completely dismissed the plaintiff's claim and denied him any costs. However, the main focus of Justice Myers' June 8, 2015 ruling, was counsel's, particularly counsel for the defendant's, failure to meet" Justice Stinson's Trial Management Order.

Justice Myers concluded that Mr. Nicholas Mester, counsel for the defendant, violated many aspects of this Order, the purpose of which was to assist the court and counsels in executing a trial in as speedy and fair a manner as possible. Justice Stinson met with counsel at a pretrial conference on December 3, 2014, where he laid out the following provisions which needed to be completed prior to the start of the trial and which counsel was requested to explain to their clients.

  • Updated financial report provided by the plaintiff
  • Exchange of updated medical reports after updated medical examinations by defendant
  • Completed jury questions
  • Joint Document brief to be prepared by both counsels
  • Will Say statements for non-party law witnesses
  • Accounting experts to clarify the difference between reports

Per Justice Myers, it was clear from the beginning of the trial that many of the provisions had not been met and thus, the Trial Management Order breached. Specifically, the jury questions and preparation of a Joint Document brief were not completed until after the trial had begun. A review of evidence, including email correspondence between counsels prior to the start of the trial, confirmed that defense counsel was responsible for most of the delays and failure to produce the necessary documents.

For example, when Mr. Ryan Naimark, counsel for the plaintiff, inquired to defence counsel about the preparation of the Joint Document, he was dismissed by Mr. Mester, who stated that he would not prepare the brief until plaintiff's counsel proved the authenticity and content of every single document, which would be a time consuming process and potentially lengthen the trial.

Defence counsel attempted to introduce a new report mid-trial from the defendant's medical expert, claiming a new theory about the plaintiff's injuries and the case had been established. This action almost led to a mistrial which was avoided only when both counsels met and mutually agreed on a way to deal with the situation. This was another violation of Justice Stinson's Trial Management Order requiring that all updated expert reports be exchanged before the trial.

Further, defence counsel twice denied the existence of photographs from the accident when questioned, until a 'last minute' email was sent submitting the photographs to plaintiff's counsel on the eve of the trial.

At the conclusion of the trial, Justice Myers called upon counsels to prepare cost submissions explaining why they had not complied with the orders set forth by Justice Stinson in the Trial Management Order and to assess whether any excess costs had been charged to the clients as a result. Defence counsel did not meet the deadline to produce the cost submission; it was finally submitted a month late but only after Justice Myers' repeated inquiries to the law firm employing counsel for the defendant.

In his submission, counsel for the plaintiff provided evidence that he complied with the provisions of Justice Stinson's Order as much as he was able. Mr. Naimark's delay in preparing the jury questions and providing Will Say statements for his two lay witnesses were largely due to defence counsel's lack of cooperation, including late and unexpected experts' reports and the late delivery of the property damage file. Justice Myers accepted the plaintiff counsel's explanation.

After receiving both submissions, Justice Myers wrote to both counsels asking them to confer and inform him if there was any further evidence they needed to submit for the costs motion. Counsel for the plaintiff responded promptly, stating that he had no more evidence. Following a lack of response from defence counsel, Justice Myers informed both counsels that he would move forward with his decision.

Only after receiving this notification did defence counsel respond, stating that he had been tied up with a new trial and while apologizing for not responding, he requested additional time to confer with his client as to whether more evidence would be submitted. Justice Myers viewed this action as further disregard for the court's orders and procedural guidelines.

Days later, counsel for the defendant finally responded stating that his client did not wish to submit any more evidence. At that point, Justice Myers set June 5, 2015, for final submissions and on June 8, 2015, he made his final ruling.

Justice Myers began his ruling stressing several standards of practice, including the fact that as lawyers, counsel are officers of the court and have responsibilities which must be upheld accordingly. He stressed that Trial Management Orders, along with scheduling orders and directions, as well as procedural orders, are all directives made by the court for which compliance by counsel is required. Justice Myers also remarked that as officers of the court, counsel "are expected and required to cooperate on matters of process and scheduling." He later added that "counsel are not just duty bound to fearlessly raise issues on behalf of their clients. It is equally counsel's duty to ensure a fair hearing."

In his ruling, Justice Meyers stated: The lawyer must discharge this duty by fair and honourable means, without illegality and in a manner that is consistent with the lawyer's duty to treat the tribunal with candour, fairness, courtesy and respect and in a way that promotes the parties' right to a fair hearing in which justice can be done. Maintaining dignity, decorum and courtesy in the courtroom is not an empty formality because, unless order is maintained, rights cannot be protected.

Justice Myers ultimately concluded that defence counsel fell short in these duties with respect to a failure and unwillingness to comply with Justice Stinson's Order, as well as repeated failure to comply with the directions and orders of the court. As a result, Justice Myers resolved that it would be "appropriate for the court to exercise its discretion and deny the successful defendant its costs". Thus, defence counsel's approach to the preparation and presentation of his case, which the client testified was done with his consent, resulted in a denial of the $100,000 that would normally have been awarded to the defendant for his successful threshold motion.

Due to defence counsel's unwillingness to work with plaintiff's counsel on the Joint Document brief, the defendant was also ordered to pay the plaintiff $441.13 for half of the copying costs of the brief.

This was a case dealing with costs endorsement where the plaintiff was unable to meet the required test for passing threshold, while defence counsel was sanctioned for failure to conduct the trial in a manner that was acceptable in the eyes of the trial judge. As a result, the Plaintiff's case was dismissed. However, the Plaintiff was spared from being ordered to pay for the costs of a lost trial due to Justice Myer's finding that defence counsel's conduct was an egregious failure to comply with court orders and worthy of sanction.

The result was that conduct of defence counsel resulted in the forfeiture of $100,000 for costs that would otherwise have been payable.


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