Waters et al. v. DaimlerChrysler Services Canada Inc. et al., 2011 SKCA 53

• Judge: Gerwing, Jackson and Ottenbreit, JJ.A.
• Court: Court of Appeal (Saskatchewan)
• Case Date: April 19, 2011
• Jurisdiction: Saskatchewan
• Citations: 2011 SKCA 53;(2011), 371 Sask.R. 153 (CA)

Waters v. DaimlerChrysler (2011), 371 Sask.R. 153 (CA);

    518 W.A.C. 153

MLB headnote and full text

Temp. Cite: [2011] Sask.R. TBEd. MY.042

Murray Waters, Sylvain Cartier, Glen Hora and Cory Martin (plaintiffs/appellants) v. DaimlerChrysler Services Canada Inc., United Parcel Service Canada Ltd., and United Parcel Service of America Inc. (defendants/respondents)

(1812; 2011 SKCA 53)

Indexed As: Waters et al. v. DaimlerChrysler Services Canada Inc. et al.

Saskatchewan Court of Appeal

Gerwing, Jackson and Ottenbreit, JJ.A.

May 3, 2011.

Summary:

The plaintiffs applied for certification of their class action. The hearing was scheduled for three days. The hearing was adjourned when the plaintiffs' counsel filed an amended statement of claim on the morning of the second day.

The Saskatchewan Court of Queen's Bench, in a decision reported at (2009), 335 Sask.R. 303, ordered the plaintiffs' counsel to pay costs of the hearing in the amount of $2,500 to the defendant DaimlerChrysler and costs equal to the travel expenses for the hearing, including airfare and accommodation, of the defendant's counsel. The plaintiffs' counsel appealed.

The Saskatchewan Court of Appeal allowed the appeal. The order for costs was set aside.

Barristers and Solicitors - Topic 842

Duty to court - Liability for costs - For improper conduct - The plaintiffs applied for certification of their class action - The hearing was scheduled for three days - The hearing was adjourned when the plaintiffs' counsel filed an amended statement of claim on the morning of the second day - Finding that the plaintiffs' counsel's conduct was more than discourteous or disrespectful to the defendant's counsel and had caused costs to be incurred without reasonable cause, the court ordered the plaintiffs' counsel to pay costs of $2,500 to the defendant DaimlerChrysler and costs equal to the travel expenses of the defendant's counsel - The Saskatchewan Court of Appeal allowed the plaintiffs' counsel's appeal - An award of costs against a solicitor was only to be made in limited circumstances - The test was not that counsel's conduct was more than discourteous and disrespectful to opposing counsel, the court and its processes, although such behaviour could certainly not be condoned - The plaintiffs' counsel's behaviour was not measured by the court below against the legal threshold of serious dereliction of duty or behaviour in accordance with the controlling authorities - Further, the impugned conduct described as causing costs to be incurred without reasonable cause, wasting court time, resulting in unnecessary expense, risking prejudice to the defendants and frustration to all concerned did not rise to the high level of censurable behaviour which the authorities contemplated - The order for costs was set aside.

Barristers and Solicitors - Topic 849

Duty to court - Liability for costs - For conduct of proceedings - [See Barristers and Solicitors - Topic 842 ].

Barristers and Solicitors - Topic 852

Duty to court - Liability for costs - For causing delay or costs to be incurred without reasonable cause - [See Barristers and Solicitors - Topic 842 ].

Practice - Topic 210.3

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class or representative actions - Costs - [See Barristers and Solicitors - Topic 842 ].

Practice - Topic 7404

Costs - Solicitor and client costs - General principles - Solicitor ordered to pay client's or other party's costs - [See Barristers and Solicitors - Topic 842 ].

Cases Noticed:

Young v. Young et al., [1993] 4 S.C.R. 3; 160 N.R. 1; 34 B.C.A.C. 161; 56 W.A.C. 161, refd to. [para. 9].

Boyko v. Sitter (1964), 49 D.L.R.(2d) 464 (Sask. C.A.), refd to. [para. 9].

Hawrish, Re - see Boyko v. Sitter.

Counsel:

E.F.A. Merchant, Q.C., and Casey Churcko, for the appellants;

Jason Mohrbutter, for the respondents.

This appeal was heard and decided on April 19, 2011, by Gerwing, Jackson and Ottenbreit, JJ.A., of the Saskatchewan Court of Appeal. On May 3, 2011, Ottenbreit, J.A., delivered the following reasons for judgment for the court.