I noticed recently that Justice Frederick L. Myers gave a decision in which he betrayed some unhappiness about so often having to adjudicate issues of costs. He made it clear that counsel should be able to settle costs and that if they cannot, at least in proceedings before him, there will probably be consequences.
In Gillespie v. 1766998 Ontario Inc., 2014 ONSC 6952 (CanLII), he said this:
I note that in all but rare cases the costs outcome, if not obvious, is well within experienced counsels’ ability to predict. While predictions may differ, the order of magnitude of the differences makes settlement readily available. Costs submissions should not be viewed as either a low cost way to take a shot at a ridiculous outcome or as a way to defer to a judge a difficult conversation with one’s client. Counsel should be able to settle costs. If costs do not settle, counsel should be prepared to make submissions on the costs of the costs submission process. I will in that process look at the offers to settle costs made prior to the filing deadlines set above and assess whether anyone’s conduct caused unnecessary or wasteful proceedings. [Emphasis added]
It would not be surprising if making submissions about the costs of making costs submissions (perhaps “meta-costs submissions”?) becomes more common.
Justice Myers put his “meta-costs” principle into practice in 1465152 Ontario Limited v. Amexon Development Inc., 2014 ONSC 4384 (CanLII) where he chastised counsel for trying to get costs on a substantial or full indemnity basis, with no good reason for doing so. He penalized the successful party by ordering it to pay the costs of the costs submissions:
Here, for the cost of a mere two pages, the applicant sought to increase its costs by approximately $22,000 without any real basis to do so. Page limits are imposed to highlight that costs matters are usually so routine that written argument is generally unnecessary and inefficient. The page limits are designed to encourage settlement not to create a low entry fee gamble. Therefore, there should be a downside to prevent parties from taking a low-cost shot at doing better. Absent reasonable grounds, such submissions just waste the time and resources of counsel opposite and the Court. I award costs of the costs process to the respondent landlord in the amount of $1,500 thereby reducing the costs payable by it to $28,331.49.
One other interesting thing about the Gillespie decision. As he did in in Picicci v. 1485528 Ontario Inc., 2014 ONSC 6496 (CanLII), Justice Myers ordered that the costs submissions be made electronically:
All submissions are to be made by pdf searchable attachments to emails to my Assistant. No case law should be enclosed. References to case law, if necessary, should be by hyperlinks to CanLII or an alternative resource embedded in the written submissions. If counsel need assistance with making pdf searchable attachments, reference should be had to the Guide to E-Delivery at http://www.ontariocourts.ca/scj/practice/practice-directions/edelivery-scj/.
As I said in my post about that case, I actually was not aware that there is now a protocol for electronic submissions that applies across the province and became effective on July 1, 2014. It can be accessed at the link above.
Now that Justice David Brown is on the Court of Appeal, I think we can expect an acceleration in the process of reducing paper in the courts.