In Graat v. Adibfar, 2013 ONSC 3264 (CanLII), Justice David Brown fixed costs following the six-day trial of a medical malpractice action. The jury had dismissed the plaintiff’s claim and the defendant doctor sought costs of $74,732.59. The plaintiff suggested that $15,000 would be a reasonable figure.
His Honour came closer to the defence figure: he allowed costs totalling $55,437.84. However, along the way, he made some interesting observations.
- When a plaintiff [or presumably, any party] serves a jury notice, that party must reasonably expect that in the event she does not succeed at trial, her liability for costs may well be higher than had the trial proceeded before a judge alone.
- If a party takes the position going into a mediation that it is not prepared to engage in settlement discussions, then it should only expect to recover a modest amount for that step in the proceeding. $500 was allowed here instead of the sum of almost $3,000 that had been claimed.
- Counsel for the defendant did not file any time dockets. As a result, its claim for time expended in trial preparation by a junior lawyer was reduced by half and allowed only at the hourly rate for a legal clerk ($50/hour).
- With respect to time claimed for junior counsel at trial, Justice Brown said the following:
As to the fees claimed for junior counsel at trial, since junior counsel did not conduct any of the examinations or make any of the statements to the jury, I think fees should be allowed only at the rate of a legal clerk – i.e. $50/hour. I do not want to be misunderstood in this finding. I think it good mentoring for law firms to bring junior counsel to the counsel table at a trial; that is the only way junior lawyers can learn the craft of advocacy. But the costs of that training should not be borne by the opposing party. As to the hours claimed for trial work by the second person, I think using 10 hours per day over the course of the 6 day trial would be reasonable. [Emphasis added]
What if junior counsel at this trial had conducted examinations or made statements to the jury? Would fees have then been allowed for that counsel’s time, in addition to the amount claimed by the senior counsel? Or would this still fall within Justice Brown’s concept of “mentoring”, such that the junior counsel’s time should still not have to be paid for by the opposing party?
Or would there be an argument, in that situation, that the senior counsel’s fees should be reduced somewhat, to reflect the fact that some of the work at trial had not had to be done by him?
This is probably not the last we’ve heard on this subject.