Negotiated Settlement Means No Costs Award

BarristerAfter several motions and a series of settlement discussions, the parties were able to settle all the issues in their family dispute and ultimately, signed a settlement agreement.

However, after the settlement the respondent, Mr. Dwyer, asked the court to award costs to him in the range of $27,000 to $35,000 representing a partial indemnity of his legal fees.

His former wife disagreed, positing that costs could not be awarded since the parties had settled their differences outside of a trial. She cited the case of Ball v. Ball 2014 ONSC 5754 where the court said:

“I accept the following summary statement from Orkin, The Law of Costs, 2nd Ed. (2014 Looseleaf) at paragraph 403: “Costs are generally not appropriate for a consent order on the reasoning that the order was not made as a result of adjudication on the merits of the application.” Without adjudication it can be very difficult to know who has had success. As noted in Barber vs. McGee, [2013] O.J. No. 4657 (O.C.J.) at paragraph 23:

Consideration of success is the starting point in determining costs. However, any attempt to determine a “winner” or “loser” in a settlement, is in most cases, complex if not impossible. … Unless there are compelling reasons to do so, costs in the circumstances of the settlement between parties ought not to be awarded by the court.”

Based on the material filed, the court said that it could spend hours and hours trying to determine which rendition of the facts provided by each party were accurate and chose instead to apply the principle found in Ball, declining to order costs.

The reality is that outside of a trial or a chambers application it is nigh impossible for a judge to determine who was reasonable, what positions ought to have been advanced, and when, and generally the conduct of the litigation….all factors that come into play in a costs decision.

Where parties settle their cases, the norm is to either negotiate costs as part of the settlement, or more commonly agree that each party will pay their own costs. Day v. Dwyer 2018 ONSC 5018

Lawdiva aka Georgialee Lang

The Client From Hell

_DSC4851In the mid-2000’s Toronto police officer Richard Wills, pulled off the most masterfully cunning manipulation of Ontario’s justice system and shockingly, got away with it, mainly because nobody cared enough to pay attention. The refrain “It’s not my job” became the mantra that brought the Ontario Attorney-General’s office and Legal Aid Ontario to their knees.

Wills’ married mistress of six years, Linda Mariani, went missing in 2002. Having been dumped by Ms. Mariani, Wills was immediately identified as a viable suspect even though he broadly hinted to his police associates that her husband was the likely culprit. Four months after her disappearance Wills retained top criminal counsel to cut a deal for him. He would admit that Linda accidentally fell down the stairs in his home, and acceding to her wishes, to avoid an undesirable burial in her husband’s mausoleum, he hid her in a 60 gallon vat behind a wall in his home, so he could later bury her in the resting place she desired.

The police weren’t buying what Richard Wills was selling. They located Linda’s body where Wills said it was but the evidence screamed homicide. She had a skipping rope tied around her neck and a baseball bat jammed in beside her. She died of blunt-force trauma. Mr. Wills was promptly charged with first degree murder.

But Richard Wills was not your garden-variety repentant rage killer. No, he was different. Despite overwhelming evidence, including his confessions to at least two persons, he insisted that Linda’s death was accidental, or if it wasn’t, he was mentally ill and therefore incapable of forming the intent to murder her or understand the consequences of his actions.

The “Richard Wills Show” began with a 65 day preliminary hearing, a process designed to determine if there is sufficient evidence to proceed with a trial. Wills paid his first set of lawyers with his own money, after all, he was a millionaire. By the time he had fired multiple sets of new lawyers, he had transferred all his assets, including real estate and his police pension to his ex-wife and was now officially a pauper begging for legal aid. As an indigent criminal defendant the Attorney-General was obliged to follow Canadian case law and compelled to pay for his defence. Legal Aid received funds for Mr. Will’s defence from the Ontario government and was expected to oversee payments to his lawyers, only they didn’t realize they were to do more than just dole out money.

Representing himself for much of the preliminary hearing, his behaviour was outrageous. He was rude and childish, belching, passing gas, lying prone in the prisoner’s docket, and contemptuously degrading, swearing, and insulting the Judge, the prosecutors, and anyone else unlucky enough to be a part of the process.

He regularly urinated in the police van on the way to and from the courthouse and on one occasion displayed a handful of excrement to the Judge after a well-coordinated courtroom bowel movement. He revelled in the spotlight, ignoring the Judge’s admonitions and rebuke and obstreporously belaboured and delayed proceedings with his interminably irrelevant questioning of witnesses.

He rambled and repeated himself with the obvious goal of drawing out and delaying the hearing. He was finally ejected from the courtroom and forced to watch the proceedings via video from a separate room. Ultimately, he achieved his goal when the Attorney-General, in an unusual move, declared an end to the preliminary hearing even though it was far from finished, and directed that Mr. Wills go straight to trial. Of course, pre-trial motions occupied another 144 days before Mr. Wills 84 day trial commenced.

His antics at trial were no different. He laughed out loud, feigned mental illness, bullied his own lawyers and was repeatedly racist.

Legal Aid initially estimated that legal fees for Mr. Wills would amount to about $50,000. Boy, did they miscalculate. Thirteen lawyers took their turn at bat for Mr. Wills, including two “friends of the court.” One of Mr. Will’s last lawyers, Munyonzwe Hamalengwa, was fired by Wills before the trial commenced. He alone billed almost $700,000 for “preparatory work” and was later disbarred by the Law Society of Upper Canada for overbilling by more than $100,000.

His last and final lawyer, Raj Napal, began his representation by announcing to the Court he would be calling 18 expert witnesses.

If it is not already apparent it was Mr. Wills who was running this trial. On March 1, 2005, Justice Shaughnessy, declared, with no pun intended: “I think we have unfortunately a test of wills here.”

Sadly, at the end of this fiasco, the administration of justice and Ontario taxpayers were the fools, while Mr. Wills sits in prison, convicted of first degree murder, no doubt confounding prison authorities and fellow lifers.

Yes, it is the inmates running the asylum, or in this case, dictating the administration of justice.

Lawdiva aka Georgialee Lang