Lawsuits often put litigants on an emotional rollercoaster. As the lawsuit progresses and legal bills pile up, some clients start caring less about strategy and more about causing maximum pain to the other side. However, abandoning reason and moderation has a cost – usually in the form of a cost award. Such was the result in Del Giudice v Thompson, 2021 ONSC 5187. While the underlying action in Del Giudice relates to a proposed class action proceeding against Capital One, the reasons set out in this cost decision have universal application.

The cost decision, issued by Justice Perell, arose following two unsuccessful interlocutory motions brought by the plaintiffs.[1] After the parties exchanged cost submissions, Justice Perell issued his cost decision and awarded Capital One (the successful party on the motions) costs in the total amount of $125,000 on a partial indemnity basis.

Cost awards are at the discretion of the judge hearing the matter. Usually, the court refers to the factors set out in Rule 57 of the Rules of Civil Procedure. In reaching his decision, Justice Perell emphasized that the conduct of the plaintiffs during the motions strongly influenced the amount of costs awarded:

“… I have decided that rather than a punitive award, I should treat [Capital One’s] claim for costs having regard to the principle that one of the factors the court may consider in awarding costs under rule 57.01 is whether any step in the proceeding was improper, vexatious, unnecessary, or taken through negligence, mistake, or excessive caution. All of those factors were engaged with respect to the Plaintiffs’ refusal motion and its unnecessary motion to enjoin Capital One …”[2]

Justice Perell went on to describe the Plaintiffs’ two motion as “unnecessary, wasteful motions that were deplorably prosecuted. Both motions should never have been brought. Both added nothing but bad practice.”[3]

In addition to criticizing the Plaintiffs’ decision to bring the failed motions, the court also criticized the conduct of the Plaintiffs’ lawyers leading up to and during the motions. In particular, the court held that the Plaintiffs’ counsels’ behaviour was “reprehensible, scandalous and outrageous,” having advanced “numerous allegations of improper conduct, dishonesty, conspiracy and deceit against Capital One and its counsel, including through an improper cross-examination.”[4]

This decision stands as a strong repudiation of a style of litigation that involves fighting every step of the proceeding without consideration of merit, reason, or proportionality. Courts are increasingly encouraging counsel and their clients to collaborate to resolve as many issues as possible between themselves, without recourse to the courts. This is especially true for procedural steps: counsel are expected to agree on most procedural steps using courtesy, communication, and common sense. There is less and less tolerance for blind aggression in litigation. The decision to litigate for litigation’s sake will increasingly result in strong condemnation from the court and cost consequences. As Justice Perell held:

“The Plaintiffs’ failure was of the abysmal sort. The Plaintiffs’ motions were ill-advised and meritless, and the Plaintiffs took unreasonable, overreaching, and legally unavailable positions.

That said, it is an adversarial process, and the litigation cost of an abysmal failure is to waste one’s own legal resources and to also have to pay spoils to the winner.”[5]

[1] A refusals motion and a motion for an interlocutory injunction.

[2] At paragraph 9.

[3] At paragraph 8.

[4] At paragraph 14.

[5] At paragraph 3.