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Unreasonable Behaviour and the Costs of Litigation

How are the costs of litigation paid after a matter goes to trial?  Is the ‘loser’ always ordered to pay the costs of the ‘winner’?  What if the successful litigant behaved unreasonably throughout the case?

In the recent judgment Jordan v Vancouver (City) (2016 BCSC 167), the plaintiff, Mr. Jordan, brought suit against the City of Vancouver for defamation, claiming city employees had circulated an untrue story about him, damaging his reputation.  The alleged defamation arose out of a discussion between two city employees, made in the expectation of confidence, regarding Mr. Jordan’s behaviour towards his female colleagues.  The story was spread and twisted to inaccuracy amongst city employees.  Inevitably, it found its way back to the plaintiff, who was outraged to hear that he was the subject of discussion and, by that point, investigation.  A series of e-mails and phone calls followed, each escalating the matter further.  The eventual commencement of the lawsuit only exacerbated the problem, as each party became more deeply entrenched in their respective positions.  Throughout the course of litigation, both parties sought to rely on technicalities and seemingly attempted to irritate the other into submission.

Before entering into his analysis of the matter, Justice Kent noted that the trial could easily have been avoided had the parties simply cooperated with each other, writing that the 12-day trial was “an unfortunate example of mutual pugnacity triumphing over common sense.”  After discussing the evidence and the technical nature of the tort of defamation, Justice Kent ultimately dismissed the plaintiff’s claim for failing to fulfil the necessary legal tests.

It is worth noting here that judges are bound to follow the law in issuing their judgments, regardless of who is the more sympathetic litigant.  However, while a victory on a mere technicality is a victory nonetheless, judges do have some leeway to condemn uncooperative behaviour by the parties at bar by refusing to award costs.   In this case, Justice Kent declined to award costs to the City, the successful litigant.  He gave the following reasons:

[170]     Ordinarily, a successful litigant before these courts is entitled to an award of costs.  However, the awarding of costs is a matter of discretion and the court has the ability to deprive a successful litigant of the costs to which they would otherwise be entitled and to make no award of costs if that is considered appropriate in the peculiar circumstances of any given case…

[172]     This case was in large measure triggered by a breach of confidence by Mr. Vuorma, a City employee at the time.  … This, in turn, triggered Mr. Jordan’s outraged and misplaced pursuit for exoneration and led to his inaccurate belief that a false accusation of inappropriate sexual touching had been made.

[173]     Further, the City unreasonably refused to respond to Mr. Jordan’s requests for information.  As soon as he received Mr. Soulliere’s email, he asked for the details of his misconduct.  He was led to believe the matter was being investigated and that he would likely have an opportunity to reply.

[174]     When no information was forthcoming, Mr. Jordan’s lawyer wrote to the City’s solicitor on two occasions seeking information as to the allegations made against Mr. Jordan.  The City deliberately failed to reply.  This is more than a simple lack of courtesy or, in the case of the City solicitor, arguably a breach of Article 7.2-5 of the Code of Professional Conduct, governing lawyers in British Columbia, which not only mandates courtesy but also reasonably prompt answers to all professional letters from other lawyers.

[175]     Had the City, whether through counsel or otherwise, provided Mr. Jordan with a carefully crafted reply to his requests for information, a reply that possibly defused suggestions of inappropriate touching but addressed personal style of communications and a preference for same to be directed through supervisors rather than front-line staff, it is entirely possible that this litigation would have been avoided.

[176]     The reply to the FOIPPA request was nothing short of insulting.  In purported compliance with the Act and perhaps in a technically correct way, the City merely provided Mr. Jordan with copies of his own correspondence (or that of his counsel) and otherwise supplied blank pages of redacted information.  The potentially inflammatory nature of such a response could readily have been perceived and could have been tactfully avoided with a carefully crafted explanation designed to defuse same.

[177]     Once litigation had ensued, the City engaged in some less than impressive tactics.  It knew full well that paragraph 11 of the Notice of Civil Claim, referencing the so-called “defamatory statement” as defined by the pleading, was not an exact quote, and it knew full well that no one in the City had been told by Ms. Ribatto that Mr. Jordan’s conduct had made her cry.  It elected not to seek particulars of the express words claimed to be defamatory but, rather, adopted a tactic of lying in the weeds and raising pleading deficiencies and absence of proof of the statements specifically referred to in paragraph 11 as a defence to the claim.  This is not conduct to be encouraged.

[178]     The episode of the lost video footage is particularly disturbing.  The evidence at trial was that the video footage was retained for 14 days before being taped over.  The City representatives were well aware of this and, indeed, had a copy of the video in question preserved by an outside contractor.  Yet that video, which could very well have been helpful evidence in this case, was lost.  Whether this was simply ineptitude or by design is not entirely clear.  Yet even assuming that it was the former and not the latter, the lack of an explanation is troubling, particularly since the evidence of Mr. Sidhu could have been made available to the court.

[179]     The reply to the FOIPPA request inaccurately stated that the video was on a seven-day loop and that it was not available.  Again, whether the failure to disclose what actually occurred was driven by ineptitude or deliberate withholding of information, it is not acceptable.

[180]     And of course neither the loss of the video nor the documents relating to its production in the first place were disclosed to Mr. Jordan until very shortly before trial.  No acceptable explanation has been provided for this nondisclosure and it does not speak well of the City’s diligence in complying with its document discovery obligations in litigation of this sort.