How to Avoid Breaking the Bank on Civil Litigation Legal Fees & Still Win in Canada (Especially Ontario)
Gordon Scott Campbell
Lawyer Avocat • Indigenous & Aboriginal Law • Criminal, Civil & Administrative Trials, Appeals & Judicial Reviews in Federal & Ontario Courts • Supreme Court of Canada Appeals
"Keep out of Chancery ... it's being ground to bits in a slow mill; it's being roasted at a slow fire; it's being stung to death by single bees; it's being drowned by drops; it's going mad by grains."
Charles Dickens, Bleak House, March 1852
In a perfect world, we'd all be entitled to speedy, affordable civil justice. Someone wrongs you, and you get speedy, reasonable compensation for that wrong. Or someone falsely accuses you of a wrong, and you quickly get that accusation thrown out of court. Period.
As we live in a clearly imperfect world, we instead often get slow, outrageously expensive civil justice. Or no justice at all.
MOVING PAST THE DICKENS WORLD OF 200 YEARS AGO
Charles Dickens saw civil litigants being ground down by delays and legal fees working as a court reporter in England's Chancery courts starting in 1829. My 28 years of being called to the bar have taught me how Dickens' works continue to ring true almost 200 years later!
But it doesn't need to be that way. There are steps you can take to ensure your civil claim is adjudicated upon in a relatively timely and somewhat affordable way. Talk to your lawyer about the advisability of these steps in your case.
Lawyers generally aren't out to rip off clients on fees; they just sometimes don't sufficiently canvass all the civil litigation options by looking far enough down the procedural road in planning out a cost-benefit analysis prior to recommending a particular civil litigation step. They may be too focused on being exhaustive in the remedies they seek for you, or too fast on the trigger in trying to land a knockout blow early on in your case.
TOO EXHAUSTIVE COSTS YOU & CONFUSES THE COURT
Being too exhaustive means lawyers pick a very expensive civil litigation procedural route, that may five (or more) years down the road, after $200,000 in legal fees, get you what you want. Maybe. Or maybe not.
Too exhaustive also means the court could become confused about the nine remedies you are seeking, and wind up giving you numbers 6 and 7, but not numbers 1, 2, 3, 4, 5, 8 and 9, while really all you wanted originally was numbers 1 and 2. Or perhaps give you nothing at all, because your case as presented by your exhaustive lawyer is simply too complicated to comprehend easily.
Yes, it's a judge's job to figure out complex things. But judges are human. And even smart hard-working humans can become confused. Why increase the chances of such confusion if you can keep things simple?
I'm frequently approached by potential clients, whose first message starts with the phrase: "I have a very simple case." No case is simple, but there are always ways to simplify the case you want to bring in order to speed up resolution and control costs.
TOO FAST COSTS YOU & MAY DELAY YOUR CASE
Being too fast means lawyers attempt what's often known as a summary judgment motion (or some similar interlocutory motion to have a case immediately decided prior to a trial), with that motion itself consuming large resources. However, the odds on such a motion are likely at best never better than 50-50, and even successful summary judgment motions in Ontario are overturned by the Court of Appeal about once in every three cases, after you've maybe spent $100,000 (or more) in fees just on the motion and appeal, only to be sent back to the trial court with nothing to show for your efforts, except two costs awards against you.
So you're rolling the dice gambling that you'll beat the odds (50-50, then 66.5-33.5, meaning you need to win twice, and in combination that means your overall odds are no better than 40-60 to start). And likely spending $100,000 in fees for the motion plus appeal in hopes you'll land a knockout blow, when in fact you're the one who probably will be knocked back, and you'll also be out $60,000 in costs (60% of the $100,000 in legal fees the other side likely spent fighting you) paid to the other side in Ontario's loser pay system. So you'll be $160,000 total in the hole, where if this was a Monopoly game you'd be returned to GO and not collect your $200.
From a speed perspective, there's a good chance you'll lose at least one to two years in the summary judgment and appeal process, putting your 5-year trial date even further away. In rushing to get a quick cheap win, you wind up with a slow, expensive stalemate.
BE REALISTIC ABOUT CASE VALUE & YOUR COSTS EXPOSURE
Now if your case is truly worth $10,000,000, then perhaps complex interlocutory civil motions would be proportional, since it usually costs just as much to bring a summary judgment motion for a $10 million case, as it does for a $150,000 in value case. But most cases are never worth $10,000,000.
Plaintiffs (and their lawyers) might delude themselves into thinking they're worth that much. But unless it's high-stakes business litigation with truly provable damages at that quantum, civil litigation is rarely worth more than a few hundred thousand dollars in Canada. Canadian courts aren't big on punitive damages - unlike some of our southern neighbours - so you're only going to get back what you lost. And you don't get much for "pain and suffering" in Canada either. You need serious bodily injury, serious income loss, or serious business loss to get you beyond a few hundred thousand in damages, where you will always have the risk of your legal fees anywhere outside of Small Claims Court amounting to that same "few hundred thousand" range. Leading an even when you "win" you really "lose" in the end result.
Even if your lawyer has taken your case on contingency and you think you have not a worry in the world about proportionality as to civil litigation legal costs, think again. That iffy summary judgment motion and appeal that you think you aren't paying for? If you lose it, you're be writing the other side a cheque for $60,000 in their legal costs. Read your retainer agreement - your lawyer's not on the hook for that; it's you. While if your lawyer had just avoided such a risky motion unless the odds were massively in your favour, you might not be at risk of any adverse costs award until the trial itself, which you may have a much greater chance of winning than the summary judgment motion.
LAWYERS MAY OVERLY FOCUS ON TACTICS, NOT STRATEGY
We were never taught civil litigation strategy in law school. Or even in bar school. We were only taught a bit about "civil procedure" (what the rules of court say you must or can do with the steps of a case) and "evidence" (what the law says proves a case at a trial or on a motion) and "advocacy" (how to persuade the court why your client should win).
This lack of education in strategy may lead to your lawyer focusing solely on short-term tactics: (1) how to get a case off the ground; (2) how to amass evidence to prove (or disprove) a case; (3) how to present a case to the court orally or in writing. Those tactics might be good enough to "win" the case, but perhaps not in a manner that is proportionate to the issues in dispute because either the timeline and/or the costs of the case are totally disproportionate to what is in dispute.
MY REAL-WORLD EXAMPLES OF TACTICS AT EXPENSE OF STRATEGY
I've seen lawyers:
All those bad results are a product of tactics over strategy. Of thinking along the lines of: I'm going to pursue an expensive procedure to claim as many remedies or as quick of a win as possible, without taking a cold hard look at the true cost-benefit ratio of those procedures.
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ASK HARD QUESTIONS ABOUT NECESSITY OF EACH LITIGATION STEP
But one can't overly generalize. There may be a very valid reason to pursue an Action over an Application, to proceed in Superior Court rather than Small Claims Court, or to launch a summary judgment motion:
But any client of a lawyer in civil litigation needs to ask their lawyer hard questions prior to authorizing any civil litigation step. The key question being: must I do this?
Some steps are mandatory:
But many steps are optional, particularly any motions which can be very costly. You should anticipate Superior Court motion costs to range between $25,000 to $50,000 per motion. Small Claims and Court of Appeal motions will be much cheaper. Some motions may be essential. Some may not.
Ask your lawyer. Discuss the pros and cons. Asking hard questions is a key part of trusting your lawyer.
2023 OCA CONTINUES TO WREAK HAVOC ON SUMMARY JUDGMENTS
To reassure you that I'm not being overly dramatic here about the risks of procedural missteps in civil litigation breaking the bank, without anything to show for that broken bank, we're only 4.5 months into 2023 and already the Court of Appeal for Ontario - deciding a large proportion of all appeals in Canada - has set aside so many Summary Trial Judgments. Taking just the last month alone, the Court of Appeal has set aside four summary judgments:
These were all litigants who were hoping for knockout blows - as either plaintiffs or defendants - early in the civil litigation process, invested considerable resources in delivering what they hoped were knockout punches, only to have the Court of Appeal send them back to the locker room.
I'm not suggesting any lawyer did anything wrong here. The Supreme Court of Canada in the case of Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87 actually encouraged these early knockout blows to cut back on litigation costs by stopping proceedings without trials. However, the problem appears to be that while the SCC stated sweeping principles in Hryniak about avoiding trials, the facts in Hryniak were pretty much a "no brainer" that the appellant had stolen $10 million from investors, which neither the Ontaro Superior Court nor the Ontario Court of Appeal hesitated over granting and upholding summary judgment. Few cases are that clear cut, leading to endless disagreement among judges as to what needs a trial and what doesn't.
PROPORTIONALITY OF CIVIL STEPS APPLICABLE THROUGHOUT CANADA
Your risks of being overturned on appeal from a pre-trial civil case determination are lower in provincial and territorial appellate courts outside Ontario and at the Federal Court of Appeal, but there are still real risks. I was taught by my mentors early in my career that the goal can never be to win at the trial court by any means possible; the goal must also be to survive all the appeals.
Likewise, outside Ontario, you won't always have the same choices of Application versus Action and Small Claims Court versus Superior Court. For instance, the Federal Court doesn't distinguish between Applications and Action - they are all the same procedure - and in Quebec, the Small Claims Court limit is only $15,000. But the principle of proportionality is equally applicable in every Canadian jurisdiction: don't pursue legally costly civil remedies and steps when you could live with less.
USE QUICKEST CHEAPEST PROCEDURE AVAILABLE TO OBTAIN MINIMUM SATISFACTORY REMEDY
Cheated out of $50,000 in a contract? Sue in Ontario Small Claims Court for $35,000. With all the legal fees and time you save, you'll be ahead in the end unless you truly have a very high value claim.
Your home driveway being illegally blocked by someone else who claims to own it, and think you're owed $50/day for every day of the last year it's been blocked ($18,250)? Bring an Application, not an Action, in the Ontario Superior Court of Justice to secure lifetime rights to the driveway, and don't pursue the $18,250 (except maybe in a later Small Claims Court claim). The Application might only cost you $25,000 in fees to finish and take under a year to a final order. The Action could cost you $250,000 in fees, and take over five years to a final order. All because you're pursuing that extra $18,250.
The Government of Canada wronged you, and you have the choice between commencing a $15,000 in legal fees Judicial Review and a $150,000 in fees civil action? You need to think long as hard as to why you need that action instead of the JR. The mere hope that you might squeeze some money out of the action in addition to other remedies won't justify it, if it might cost more to pursue than you'll potentially get back.
PROPORTIONALITY JUST AS IMPORTANT FOR DEFENDANTS
If you're a defendant in civil claim, you might be tempted to launch a counterclaim against the plaintiff(s). I'm actually a fan of the best defence is a good offence principle. But don't launch a weak counterclaim which could significantly drive up your legal costs and drag out the timelines to get rid of the case.
Likewise, summary judgment motions are just as tempting for defendants as they are for plaintiffs. Some defendants additionally like motions to strike, which are brought even prior to filing a defence. Then they bring a summary judgment motion after filing a defence if they lose the summary judgment motion. And then maybe bring a motion to compel a better affidavit of documents. Followed by a motion to compel certain answers on discoveries. And so on. And so on.
If you're a defendant with essentially unlimited resources, who really does not care that your legal fees will be out of all proportion to your true damages exposure, and you're going into the litigation with eyes open knowing that, then there may be nothing unethical in your lawyers bringing civil motion, after motion, after motion, hoping to either score a lucky knockout blow. Or at least wear down the other side.
But few defendants (other than governments) have unlimited resources. And most would rather spend those resources on things other than lawyers. A better holiday party? Enhanced employee bonuses? They all strike me as a better use of funds than pouring money into a legal black hole.
So defendants, just like plaintiffs, need to ask the same hard questions of their lawyers:
There's no need in Canada to break the bank to win at civil litigation as either a plaintiff or defendant if you make careful proportional choices at every step down a litigation pathway. But one misstep off that path could still make you a character in a Charles Dickens novel of the mid-19th century. Only careful collaboration with your lawyer will avoid landing in a Bleak House.
Gordon S. Campbell represents civil applicants, plaintiffs, appellants, defendants and respondents throughout Ontario and Federal Courts including at the Ontario Superior Court of Justice, Ontario Divisional Court, Court of Appeal for Ontario, Federal Court, Tax Court of Canada, Federal Court of Appeal and Supreme Court of Canada. Learn more at www.acmlawfirm.ca.