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