Court ruling awarding costs against lawyer a 'concern'

Toronto health lawyer Lonny Rosen says a “concerning” court decision that awarded costs against a lawyer personally for calling to the witness stand an expert who was found by the court to be biased underscores counsel’s duty to ensure the impartiality of testimony from this type of witness.

“The court decided that because counsel had proffered an expert who was biased, then trial time was wasted and the lawyer, having caused those wasted costs to be incurred, would be personally responsible for the time and expense associated with that witness,” he tells

In Bailey v. Barbour, Justice Susan E. Healey of the Ontario Superior Court of Justice ordered the lawyer to pay $105,500 – or 20% of the total costs, being the portion of trial time taken up by the  expert witness who was found to be biased.

Rosen, partner with Rosen Sunshine LLP, says that while the court does have discretion to order costs against a lawyer personally where the lawyer has caused costs to be incurred unnecessarily, the case law provides that this discretion must be exercised “with the utmost care and only in the clearest of cases." It is not exercised very frequently.

Rosen says that it is surprising that the court ordered that a lawyer pay costs personally in circumstances where there is no evidence that the expert called by the lawyer had a financial or other interest in the case.

“Certainly it underscores a lawyer’s duty, which is already entrenched in the rules, to ensure that any expert called to give evidence is aware that his/her duty is to the court, rather to any one party – it’s imperative that the lawyer makes sure the expert understands that,” he says.

Rosen explains that in this particular case, the lawyer for one party proffered an expert on a central issue in the case. That expert was found by the court to have been biased. As a result, that expert’s views were given no weight by the court. The court ruled in favour of the other party on the merits of the case.

What the court then did is advise the lawyer that it was considering an award of costs against the lawyer personally and, in accordance with Rule 57.07(2) of the Rules of Civil Procedure, gave the lawyer an opportunity to make representations to the court, Rosen notes.

The court’s finding that the expert witness was biased was based on some of the communications made by the expert to counsel prior to, and during the course of, the trial, he says.

The court noted that "the decision to provide the court with expert testimony is part of the role of the lawyer who has carriage of the matter, and his/her professional expertise should include an understanding that it undermines the integrity of the justice system to direct a biased expert to step into the witness box."

Rosen says "in other words, the court found that simply by proffering an expert who was biased, the lawyer wasted the court’s and the parties’ resources and should be held responsible for the wasted costs associated with the expert."

He says the lawyer in this case was criticized for not recognizing that the expert was “too personally involved” to comment objectively on the case and on the other expert’s methodology and conclusion.

Rosen says that counsel cannot always  predict how a witness’s evidence is going to come out on the stand and therefore it’s “concerning to realize that if an expert’s evidence comes out in a manner that suggests that he/she is biased, then not only is the lawyer’s client’s case in jeopardy, but that lawyer could be on the hook for costs personally.”

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