“The civil justice system in Ontario is broken,” Justice Myers said in the recently released decision of Saleh v. Nebel. “It is too slow and expensive to meet the needs of most Ontarians.”
I think many litigants would wholeheartedly agree with that assessment. Lawyers just think it’s too slow.
The Saleh we’re dealing with in this post is the costs order Justice Myers made on the heels of a motor vehicle accident case where Aiyub Saleh sued Ludwig Nebel for damages. The plaintiff Saleh actually lost the case on an Insurance Act technicality because Justice Myers found the plaintiff did not sustain enough damages — $30,000 minimum — in order to bring a claim.
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In Ontario, as with many jurisdictions, costs follow the event. In other words, the party that wins generally expects to recoup some of its legal fees from the loser. But — and this is an important but — cost awards are always in the court’s discretion. And with that, let’s delve into the very interesting and instructive case of Saleh.
First off, as you probably guessed, Justice Myers denied the defendant’s request for costs, despite his victory. In fact, Justice Myers said he would have awarded the defendant $100,000 in costs, but for defense counsel’s conduct. Now you’re curious, right? What the heck did defense counsel do to make the judge so cross? Before we get into the meat, how about a little background?
The courts have been trying to fix the broken civil justice system through a number of initiatives. In this case, for example, another judge, Justice Stinson, worked with the litigants to set up a schedule and deliverables that would help the parties narrow the issues and ensure the trial would move along quickly and smoothly. The lawyers for each side agreed to the schedule and, based on that, Justice Stinson issued an order requiring the parties to proceed as agreed.
We all love Denny Crane and Alan Shore from the television show, Boston Legal. They represent an archtype of lawyers — brilliant, committed to justice, and willing do anything to pull it out of the fire for their clients. I certainly enjoyed their weekly capers as the usually won their cases in a most dramatic way, dropping bombs at the last minute, causing everybody to gasp at their sheer genius.
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As lawyers, we always have competing duties: first, to protect our client’s best interests, but always subject to an equally important second duty as an officer of the court. Put differently, a lawyer’s duty to zealously advocate for his or her client ends at the point where a lawyer needs to mislead the court, scream at the judge, or engage in sharp practice. Additionally, lawyers are required to meet the timelines and undertakings set out in court process orders like the one Justice Stinson made in this case. Denny and Alan regularly forget their duties to the court, which made for wonderful, dramatic television, but not for a great working justice system.
Nicholas Mester of Thompson, Tooze, McLean & Elkin represented the defendant in Saleh. He operated under the supervision of Mark Elkin, a name partner with Thompson, Tooze. Justice Myers conducted a very thorough review of how Mester handled himself before and during trial. He summed up his findings as follows:
While it is ultimately true that this case was finished in 8 trial days, the point is that it never should have been scheduled for that long. Had counsel applied their minds to their witness lists and documents in good faith, as required by Stinson J., this case should have taken just a few days. Another trial could have been scheduled and heard in the second week. 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.
Smack! Hear that? It’s the stinging sound of Justice Myers giving Mester and Elkin many back-of-the-hand benchslaps. Based on that long laundry list of obnoxious behavior, he denied the defendant’s request to recover its costs. Although Mr. Nebel was the named defendant, his insurance company was actually paying Thompson, Tooze’s bills. Justice Myers also considered making an order requiring Thompson, Tooze to repay some of the fees the insurance company paid to the firm. His Honor did not ultimately make such an order because Mr. Elkin repeatedly indicated that the insurance company (which was Elkin’s de facto client) was happy with how Thompson, Tooze conducted the matter.
Thompson, Tooze is, of course, appealing Justice Myers’s ruling, with Mr. Elkin saying he completely disagreed with the decision His Honor made. Quelle suprise. I can’t believe the insurance company is happy to see Mester and Elkin’s public benchslapping, but maybe I’m just naïve.
In the end, what did we learn? You can’t be Denny Crane in this country. If we’re going to fix a broken system, and meaningfully increase access to justice, it won’t happen unless lawyers act with honor, civility, and great respect for the system.
I note that Justice Myers also considered reporting Mester to the Law Society for remedial mentoring, but ultimately did not — except for the fact he discussed this consideration in his judgment which means, for all practical purposes, he reported Mester to the Law Society. Clever.
I suspect LSUC will take a serious look at Messrs. Mester and Elkin’s conduct.
If you have the time, the judgment is a lot of fun to read. It’s relatively short too. For all you law students who skim my column, I highly recommend you read Saleh and take strong note of how not to discharge your duties as an officer of the court. Remember, Denny and Alan are fun to watch, but there’s just no room for them in a real courthouse.
That’s the View From Up North. Have a great week.
Steve Dykstra is a Canadian-trained lawyer and legal recruiter. He is the President of Keybridge Legal Recruiting, a boutique recruitment firm that places lawyers in law firms and in-house roles throughout North America. You can contact Steve at [email protected]. You can also read his blog at stevendykstra.wordpress.com, follow him on Twitter (@IMRecruitR), or connect on LinkedIn (ca.linkedin.com/in/stevedykstra/).