Appellate, Civil Litigation

Cost to be paid for courtroom antics: Cormier

By Paul Russell, Contributor

If a court case is unnecessarily extended due to the behaviour of one party, that side could very well end up paying a disproportionate share of the costs after the verdict is rendered, says Toronto trial and appellate lawyer Joel Cormier.

“If you take unreasonable positions during a trial in the hope of securing an advantage for your client, you have to be aware that you may be the one paying costs,” says Cormier, associate with Will Davidson LLP.

He recounts a case he litigated where the opposing party was awarded higher-than-usual costs due to their courtroom behaviour.

“They raised numerous motions that were later dropped, refused to admit to things they ought to have, exceeded timetables, and took positions that were simply unreasonable and that they knew were not supported by law,” Cormier tells

During the trial, he says this tactical manoeuvring “allowed them to secure some advantages,” but in the end, these tactics backfired.

“The other side’s behaviour during the trial put it at a great disadvantage when it came to the issue of costs,” he says.

“The costs assumed greater importance because the conduct of the other party simply raised the stakes, and it made the litigation much more expensive than it needed to be,” Cormier says.

Canada operates under a “loser pays” system, where the unsuccessful side in a trial is typically obligated to pay some portion of the winning side’s legal costs, he explains.

Allowing people to recover at least some of their court costs at the expense of the other side discourages frivolous claims while encouraging the settlement of meritorious actions, Cormier says.

Beyond looking at which side was victorious, he says a number of factors are taken into consideration in determining costs.

“The court also considers things like the offers to settle made by the parties,” Cormier says, adding that the judge compares those offers to the decision, he says.

“An ideal settlement will beat your opponent’s best offer and preferably beat your own offer, though that would typically entitle you to more costs,” Cormier says.

The complexity of the case and the tactics employed by counsel are other salient factors, he adds.

“Lawyers have to be aware of the cost consequences of being overly aggressive toward witnesses, or of engaging in tactics that delay the flow of the case,” Cormier says.

By awarding costs to the offending side, he says a judge can mitigate any unfair advantage secured by a party as a result of its behaviour.

“Lawyers have to really be cautious about employing stalling tactics because that can come back to haunt them when costs are being decided,” Cormier says.

It is unlikely that the successful party in a trial will recover all the money spent on the litigation, especially with long trials, he says.

“Often the issue of who won or lost is a very grey area,” he says.

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