by Retired Justice, Cliff Nelson as part of “Cliff’s Notes” a feature in FDRIO’s newsletter

This month, I am going to refer to two cases: one from the Ontario Court of Appeal, the other from the Superior Court of Justice. Neither case is of particular importance (except, of course, to the parties themselves) nor do they have much precedent value. However, I still think it is worth bringing them to your attention for reasons that will become apparent.

We all know that litigation costs are beyond the reach of the majority of our citizens. Time and again, we have heard repeated the fact that our courts are available to the very poor (Legal Aid) and the very rich. The majority of the middle class can, however, simply not afford to litigate. That is one reason why mediation services have grown exponentially.

The cases are Marchese v. Marchese 2019 ONCA 116 and Malik v. Malik 2019 ONSC 1217. Both deal with the issue of costs. Both deny the full amount of requested costs by a successful party who had used both a senior and a junior lawyer on the file. In Marchese, the Court of Appeal finds little merit in the appeal, stating that the matter did not require two counsel. In fact, the Court even denied the successful respondent costs for the new counsel to cover work done to get up to speed.

In Malik, the Court states that just because a party achieves success does not mean that the party is entitled to “whatever” costs were incurred. In this case, costs to the successful party, for the services of two lawyers, were reduced. A senior lawyer, with 27 years of experience, and a junior lawyer, with 7 years of experience, worked on the file. Both appeared on the motion. The Court found that much of the time docketed showed both lawyers working together at the same time and on the same date. The Court pointed out that the costs motion was one that could have been taken by the junior lawyer alone. The case certainly did not require two lawyers.

Of course, the rationale for having two (or more) lawyers on a file is that some services can be provided at a lower cost by the lawyer with less experience. The lesson here is that, in the majority of cases, one should be leery of having two lawyers appear together. At today’s rates, one lawyer is expensive enough! Having said this, there is no hard and fast rule. Some complex cases do require more than one lawyer for a party. The Court is always concerned about the concepts of “reasonableness” and “proportionality” when dealing with costs. Arbitrators and counsel should, however, be aware that, even when successful, a client might be deprived of costs for two lawyers if the case does not justify the expense.

Until next time,

Cliff