It’s okay to be tactical in your litigation strategy. But when that strategy consists of “unacceptable litigation gamesmanship” litigants may be sanctioned with a costs award. In Candito v. Nmezi 2015 ONCA 793, Brown J.A. had strong words against counsel’s decision to strategically delay the settling of an order under appeal.
In Ontario an appellant must “perfect” its appeal (in other words file all the relevant documents including an appeal book) within 30 days of filing his or her Notice of Appeal. The appeal book must contain a copy of the order being appealed from. While it is open to either party, usually counsel for the winning party prepares a draft order and sends it to all parties for approval as to form and content. Once that approval is obtained, the order may be signed and entered and can be included in the appeal book.
In this case, the appellant sent a draft order to the respondent’s counsel for approval. There was no response. The deadline for perfection was missed and the respondent’s counsel opposed a request for extension of time to perfect the appeal. The appellant was forced to bring a motion to extend time.
The Motion and Costs
The parties ended up consenting to an order to extend the time to perfect the appeal and the respondent’s counsel eventually approved the draft order. Nevertheless, the appellant sought and was granted $5000.00 in partial indemnity costs for the motion it was forced to bring. Justice Brown, however, would have awarded full indemnity costs if he was not limited by the appellant’s request for partial. Justice Brown had this to say at paragraph 22:
The unreasonableness in the events which transpired consisted solely in [the Respondent’s] failure to perform its obligation to settle an order subject to appeal in a timely fashion. For [the Respondent] to take the position that it would not settle the order under appeal until [the Appellant] had argued its motion to extend the time to perfect amounted to unacceptable litigation gamesmanship.
It appears as though counsel was hoping to manoeuver the appellant into a position where it had to argue its merits of the appeal in order to get the extension of time. Justice Brown did not approve of this strategy:
In my view, such unreasonable litigation tactics by [the Respondent] would have merited an award of full indemnity costs against it. However, [the Appellant] only requested partial indemnity costs, so I am limited by its request. (para.23)
Refusing to settle the order ended up wasting both parties’ time and that of the Court’s. As Justice Brown noted “[c]ivil litigation in the public courts can only deliver timely and cost-effective justice if the parties perform certain basic procedural obligations.”(para.1)
Erin C. Cowling is a freelance litigator, researcher & writer at Cowling Legal Freelance and President and Founder of FLEX LEGAL, a network of freelance lawyers.