How not to litigate

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This month, there was a costs decision released in the Ontario Superior Court of Justice that is well worth reading. In Saleh v Nebel 2015 ONSC 3680, click here: Saleh v Nebel

Justice Myers declined to award costs to the winner of a lawsuit involving a motor vehicle accident. The judge criticized the manner in which the lawyers conducted the case. In particular, at paragraph 106 and 107, the judge writes:


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. 

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.

This decision is a good reminder to litigants (represented or otherwise) to conduct litigation in a civil manner.

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