In Clarke v. Tennant, 2019 ONSC 7222, costs were ordered against one of three defendants at a pre-trial conference.
The action arose out of a motor vehicle accident. At a mediation, the defendant, Silcox, was prepared to settle for a significant amount. However, at the pre-trial conference, Silcox maintained a “no liability” position and refused to contribute to a settlement. This was apparently based on an engineering report and “some less than cogent and persuasive evidence obtained on discovery”.
Justice Gans stated that a defendant is permitted to maintain a “no liability” position but only if it is based on a rational foundation in law or on the evidence. His Honour was not persuaded that the position adopted by Silcox met that criteria.
In addition, Silcox did not communicate her change in position prior to the pre-trial conference. The plaintiff had traveled from outside of the country to attend the pre-trial conference. If Silcox had informed the plaintiff of her position in advance, the plaintiff could have avoided traveling to Canada and could have participated in the pre-trial conference by telephone.
Justice Gans ordered Silcox to pay for the plaintiff’s out-of-pocket expenses, as well as legal costs of the plaintiff’s lawyer and the co-defendants’ lawyers.