As anyone who has ever been a party to litigation (and every litigation lawyer) knows, the costs of any court proceeding is a looming threat that surrounds the entire process. The sanction of costs is meant to discourage frivolous and vexatious litigation that has no chance of success. It is also meant to temper the zeal of the litigating parties (even where there are very real issues to be tried) by making them think hard about the necessary steps and how they conduct themselves in the litigation.
The court has broad discretion to award costs under section 131 of the Courts of Justice Act. The factors the court considers in exercising that discretion are found in Rule 57.01 of the Rules of Civil Procedure and include the result in the proceeding, any offer to settle made in writing, the principle of indemnity, the amount of costs that an unsuccessful party could reasonably expect to pay, the amount claimed and the amount recovered in the proceeding, the apportionment of liability, the complexity of the proceeding and the importance of the issues.
Notably, the court will also consider, the conduct of any party that tended to shorten or to unnecessarily lengthen the proceeding, whether any step was improper, vexatious, unnecessary, taken through negligence, mistake or excessive caution, and a party’s denial of or refusal to admit anything that should have been admitted.
Costs sanctions are just one of the many mechanisms built into the litigation process designed to encourage settlement. For example, matters commenced in the Toronto Estates Court are subject to mandatory mediation, which means that the parties must attend with counsel to enter into in good faith settlement negotiations assisted by a professional and neutral third party.
If mediation fails, a pre-trial provides the opportunity for court-assisted settlement whereby a judge will assist and encourage the parties to settle.
Certainly, it is always better to be a part of the resolution, which provides a measure of control over costs and other factors. A much more attractive option than the risk involved with having no control over the outcome.
Food for thought for all the litigants out there.
Sharon Davis – Click here for more information on Sharon Davis.
As counsel, we are often engaged in litigation with self-represented litigants. The number of self-represented parties appears to be growing in Ontario.
Matters involving self-represented litigants raise special considerations and practice issues for both counsel and the courts.
One issue is the recording of court proceedings. Where a court hearing with self-represented parties is involved, the courts usually require that the proceedings be recorded, even if evidence is not being heard and the court is only hearing submissions. (If all parties are represented by counsel, the submissions will not normally be recorded.)
In order to avoid delays and inconvenience to the parties and the court, counsel should advise the court in advance that a self-represented party is appearing so that prior arrangements can be made for the attendance of a court reporter. This might best be done on the confirmation form that is faxed to the court prior to the hearing.
Thank you for reading.
Paul E. Trudelle – Click here for more information on Paul Trudelle.
listen to The Ontario Civil Justice Reform Project
This week on Hull on Estates, Chris and Justin discuss the Ontario Civil Justice Reform Project and the steps being taken by Mr. Justice Colter Osbourne and Attorney General Michael Bryant.