[1] The plaintiff brought this action for damages arising from a motor vehicle accident.
[106] While it is ultimately true that this case was finished in 8 trial days, the point is that it never should have been scheduled for that long. Had counsel applied their minds to their witness lists and documents in good faith, as required by Stinson J., this case should have taken just a few days. Another trial could have been scheduled and heard in the second week. Playing uncivil, tactical, inappropriate, old-school, trial by ambush games like: threatening to require proof of obviously valid records, holding back important documents until the last second, failing to fulfil undertakings until the eve of trial, delivering new expert’s reports during the trial, saying untrue things to counsel opposite (whether knowingly or not), failing to prepare examinations in advance to “wing it” at trial, refusing to agree to the admissibility of relevant documents while requiring changes to be made to irrelevant ones, refusing to share costs of joint expenses, refusing to cooperate on court ordered process matters, are all wrongful. Most of these things have been considered unprofessional sharp practice and inappropriate for decades.
[107] In light of the defendant’s failure and unwillingness to comply with the order made by Stinson J., its late disclosure of important documents, counsel’s uncivil conduct leading up to and at the trial, and the repeated failures of the defendant’s counsel to comply with the directions and orders of the court, it is appropriate for the court to exercise its discretion to deny the successful defendant its costs. The uncontested evidence of misconduct by the defendant’s counsel is good reason to exercise the court’s discretion to depart from the normal rule that costs presumptively follow the event.
[108] In all, as a result of the manner by which the defendant’s counsel prepared for and presented this case at trial, with his client’s assent, the defendant is being deprived of a $100,000 costs award to which it would otherwise have presumptively been entitled.