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Wednesday, November 13, 2019

Defendant who played "hard-ball" pays for his bad attitude

Whenever someone is considering litigation, the issue of costs always comes up (or at least, it should come up). We have rules in Canada about who has to pay for costs in a lawsuit. The bottom line is that the judge who disposes of the case has a lot of discretion as to who pays the costs, and how much they pay. There is a general rule that the loser of a lawsuit has to pay, and much of the time, that rule is in play.

A recent case from Ontario sends a very clear message to potential litigants. In this case, Ms. Deven Brophy sued for injuries she sustained in a car accident. The defendants denied liability. There was a jury trial, preceded by discoveries and pre-trial conferences. The plaintiff made a number of settlement offers but the defendants wouldn't even talk about settlement.

The jury found the defendants liable. The plaintiff asked for about $1 million in damages, while the defendant argued that the appropriate amount would be more like $5-10,000. The jury awarded the plaintiff $62,000 which was reduced by the deductible and the amount she had received from her benefits, and ended up being about $18,000.

This is where it gets interesting. The judge awarded the plaintiff legal costs in the amount of $210,587 plus disbursements in the amount of a further $64,869. Wow!

The defendants, of course, argued against this cost award. They said it was disproportionate to the amount of the claim, but the judge said that was not a valid argument. They said the court had to take into consideration the expectations of the losing party (i.e. the defendant) but the court said it had no evidence of what those expectations were, because the defendant had ignored the court's request to include a bill of costs.

So why did this happen? The judge's last words say it all: "The defendant took what I would view to be a hard-ball approach to this claim, and now must accept the consequences of that decision."

In other words, if you don't even try to settle, if you just sit back and dare the other party to come after you, then you might just pay through the nose for that attitude. There was a fair bit of discussion in the case about how the costs rules are in place at least in part to encourage parties to resolve matters between themselves without resorting to the courts.

Given how many people I see who want to "play hard-ball" against family members in estate litigation, this seems to be a message that needs to be out there.

If you'd like to read the whole case, click here. (NOTE: link was fixed Nov. 14/19)


  1. This comment has been removed by a blog administrator.

    1. Hi Webeye,
      Thanks for the heads-up on the link. Using the old one, you would have had to click on "document" to see the case. I've replaced the link and hopefully it will be okay now.

      The more I hear about your estate nightmare, the more I shake my head. What a mess! Thankfully most are not that bad, but I know it happens. Once it goes off the rails, it's hard to regain control of it. No wonder you want out.


    2. Webeye, about that case you were trying to find: what level of court was it in? ON High Court? Appeal? I might be able to find it.



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