King Pyrrhus of Epirus defeated the Romans at the Battle of Heraclea in 280 BC and the Battle of Asculum in 279 BC. He went on to lose the Pyrric War. Of the battles won by Pyrrus, Plutarch has quoted Pyrrhus as saying “If we are victorious in one more battle with the Romans, we shall be utterly ruined.”
The same observation can be made of some civil litigation.
VB was injured while running on an indoor track at McMaster University. He sued the other runner, the running club, the running coach and the university. He and his family members claimed damages of $1.1m, plus interest and costs.
After a 13 day trial, the jury found that VB and his family suffered damages totalling $104,885. The runner and the university were not found liable. The coach and the running club were found 60% liable, and VB was found 40% contributorily negligent. Thus, VB and family were to recover approximately $60,000.
Then came the decision on costs.
Offers to settle were made before trial. Collectively from the defendants, the offer totalled $180,000. The plaintiffs’ offer was said to be for $1,216,550.
The judge in his costs reasons noted that as the trial was a jury trial, he could have “blithely sat back and let the costs clock tick away”. The judge didn’t do this. Rather, the judge twice suggested that the parties agree to a midtrial pretrial with another judge, to see if the matter could be settled. The plaintiff refused. “That kind of opportunity can be fruitful as counsel have seen how the case has evolved and with a lot of things in life, how its evolution was different from that which was expected. … The continuation of the trial did not make economic sense in terms of what could be gained by the plaintiff in the face of mounting costs for all parties. By continuing the trial, the likelihood, if any, amount being awarded being a ‘Pyrrhic’ victory loomed large.”
And Pyrrhic was the victory.
The plaintiffs received a judgment of $60,000. They were awarded costs against the running club and coach of $43,108. The plaintiffs were ordered to pay costs to the university of $95,000, and to the running club and coach of $69,156.
In addition, the plaintiffs may have had to pay their own lawyers.
Costs of a proceeding must always be front of mind. Further, the impact of reasonable offers to settle must be considered: both when making offers and when considering offers from the other side.
Thank you for reading.
As part two of my earlier blog on the issue of expert witnesses at trial, Bruff-Murphy v. Gunawardena, 2017 ONCA 502, is a great read for the Court of Appeal’s view on the role of the trial judge during expert testimony.
In the introduction alone, Justice Hourigan was clear that “gone are the days when an expert served as a hired gun or advocate” (para. 1) and that it is the trial judge’s role to act as a gatekeeper so that the expert opinion evidence before the court is “fair, objective and non-partisan” (para. 2).
While my earlier blog focused on the legal test during the qualification stage, Justice Hourigan was also clear that the trial judge does not become functus the moment an expert witness is permitted to give expert opinion evidence. Rather,
“The trial judge must continue to exercise her gatekeeper function. After all, the concerns about the impact of a non-independent expert witness on the jury have not been eliminated. To the contrary, they have come to fruition. At that stage, when the trial judge recognizes the acute risk to trial fairness, she must take action” (para. 63).”
In this case, Justice Hourigan commented that there were various options available to the trial judge after the qualification stage, which trial counsel should also be aware of as suggestions in their toolkit. To quote Justice Hourigan at paragraphs 67 and 68 of this decision,
 Given this ongoing gatekeeper discretion, the question remains of what, as a practical matter, the trial judge could or should have done in this case. His first option would have been to advise counsel that he was going to give either a mid-trial or final instruction that Dr. Bail’s testimony would be excluded in whole or in part from the evidence. Had he taken that route, he would have received submissions from counsel in the absence of the jury and proceeded as he saw fit. Alternately, he could have asked for submissions from counsel on a mistrial, again in the absence of the jury, and ruled accordingly. In the event that he had to interrupt Dr. Bail’s testimony mid-trial, he would have had to consider carefully how best to minimize the potential prejudicial effect of the interruption from the respondent’s perspective.
 The point is that the trial judge was not powerless and should have taken action. The dangers of admitting expert evidence suggest a need for a trial judge to exercise prudence in excluding the testimony of an expert who lacks impartiality before those dangers manifest.
Thanks for reading this week!
This week on Hull on Estates, David Smith and Nick Esterbauer discuss the equitable doctrine of rectification and situations in which Ontario courts may be willing to rectify wills and life insurance beneficiary designations.
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One of the purposes of having viva voce testimony at trial is so that the trier of fact is able to determine a witness’s credibility and attach the appropriate weight to his/her evidence.
While the determination of a person’s credibility may appear to be a rather personal assessment, according to Madam Justice D.A. Wilson, this is not case at law:
 As I noted in Rider v. Grant, 2015 ONSC 5456 (CanLII) at para. 90:
In deciding issues of credibility, it is not simply a matter of accepting the evidence of one party over another based on how the witness performed in the witness box. Rather, “the real test of the truth of the story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions.” Faryna v. Chorny,  2 D.L.R. 354 (B.C.C.A.)
Moreover, in the case of 1483677 Ontario Ltd. v. Howard, 2015 ONSC 6217, as excerpted above, Justice Wilson did not find a particular witness to be worthy of belief where,
- there were discrepancies between the witness’s testimony at trial and his evidence during an examination for discovery; and
- the witness was unable to provide a reasonable explanation for the discrepancies between his testimony and the documentary evidence, such as e-mails.
On the other hand, a different witness who responded to questions directly, and without hesitation, even if his answer may have an negative impact on his case was found to be “forthright” and “honest”. The objectivity and fairness of a witness’ testimony was also preferred.
Happy Friday and thanks for reading!