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Simon Shields, LLB

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Civil Procedure - Orders - Taking Out Orders

Candito v. Nmezi (Ont CA, 2015)

In this case the Court of Appeal considers the mischief that can be caused when one party to an order neglects or refuses to 'approve as to form and content' a draft order sent to them by another party, as is standard practice in the profession. To me the case highlights the irrationality of court rules requiring too-often uncivil parties to co-operate in essential aspects of court process. The problem arises in other contexts, for example the relatively new 'discovery plan' Rule 29.1, which requires similar co-operation. Such procedures are too-often abused in the course of litigation to cause additional delay and expense in what is already an overly expensive and slow regime.

In the case of formalizing court orders my practice has usually been to have draft orders prepared at the last attendence before the court, for approval by the other side and execution by the court on-the-spot. When dealing with unrepresented parties counsel typically additionally request that the judge order that 'approval as to form and content be dispensed with'. Ultimately though I remain puzzled as to why the burden to formalize orders and judgments is placed on the parties, as it does not seem a great burden on the court itself to issue them in the course of their normal duties. After all, it is ultimately the expression of the court's will that is being captured here, so who better (and more efficiently) to perform this function:
[1] Civil litigation in the public courts can only deliver timely and cost-effective justice if the parties perform certain basic procedural obligations. One such obligation requires a party to settle an order under appeal in a timely fashion so that an appellant can perfect its appeal within the timeframe stipulated by the Rules of Civil Procedure. This obligation has been recognized for some time. Almost fifteen years ago, The Advocates’ Society specifically addressed this obligation in its Principles of Civility for Advocates. Principle 16 provides, in part, that counsel “should promptly prepare and submit a proposed order to opposing counsel and attempt to reconcile any differences before the draft order is presented to the Court.”

[2] In the present case, the respondent, State Farm Mutual Automobile Insurance Company (“State Farm”), failed to perform that basic obligation in a misguided attempt to thwart the ability of the Economical Insurance Group (“Economical”) to exercise its right of appeal.

[3] State Farm’s litigation tactics compelled Economical to bring a motion to extend the time to perfect its appeal. Although the substantive relief sought by Economical ended up going on consent, for the reasons set out below I conclude that State Farm’s unreasonable litigation conduct justifies awarding Economical partial indemnity costs of $5,000.00.

.....

[21] The parties cannot agree on costs. Economical seeks its partial indemnity costs of the motion in the amount of $5,000.00, all in. State Farm submits that such a request is unreasonable and that each side should bear its own costs.

[22] I disagree with State Farm’s submission. Economical’s request for costs is most reasonable. The unreasonableness in the events which transpired consisted solely in State Farm’s failure to perform its obligation to settle an order subject to appeal in a timely fashion. For State Farm to take the position that it would not settle the order under appeal until Economical had argued its motion to extend the time to perfect amounted to unacceptable litigation gamesmanship. From the submissions it made at the hearing of the motion, it is apparent that State Farm delayed responding to Economical’s requests to settle the order so that it could manoeuver Economical into a position where it might be required to argue the merits of its appeal in order to secure an extension of time to perfect. That was the thrust of the submissions made by State Farm’s counsel based upon a book of authorities tendered at the hearing.

[23] In my view, such unreasonable litigation tactics by State Farm would have merited an award of full indemnity costs against it. However, Economical only requested partial indemnity costs, so I am limited by its request.


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