In pursuing litigation it is often a wise strategy to “spread the net” as broadly as possible and include, as defendants, every possible party who may be liable. Not only does this approach provide greater opportunity, through the discovery process, to uncover the evidence necessary to establish one’s claim but also, in circumstances of joint and several liability, enhances the prospects of collecting all of the damages that may be awarded.
However such a strategy can add significantly to the costs of litigation and can backfire in a significant way. In circumstances where a plaintiff pursues multiple defendants, and is successful against one defendant but not successful against other defendants, they may end up being liable for more in costs to the successful defendants than they were awarded against the unsuccessful defendant. Such was the case of the plaintiff in Schnurr et al. v Card et al., 2013 ONSC 4106 (CanLII).
In this matter the plaintiffs pursued claims against both Robert Card and Brian Card. The plaintiff obtained default judgment against Brian Card at trial but the claim against Robert Card was dismissed. This decision dealt with the cost claims on behalf of the plaintiffs and the successful defendant, Brian Card.
In Ontario, awarding costs is within the discretion of the trial Judge. However there is a presumption that the losing party will be ordered to pay a portion of the successful party’s legal costs.
With respect to the plaintiff’s successful default judgment against the defendant, Robert Card, the plaintiffs were awarded $9,346.36 inclusive of fees, disbursements and GST. However, the plaintiffs were ordered to pay to the successful defendant, Brian Card, the sum of $55,794.82 inclusive of all fees, disbursements and GST. Moreover, the Court did not accept that the argument on behalf of the plaintiffs that the at-fault defendant, Robert Card be obligated to pay the costs awarded to the successful defendant, Brian Card.
The Cost Endorsement does not provide details of the quantum of the default judgment which the plaintiffs obtained and there is no information as to whether the plaintiffs will be able to collect their default judgment and the award of costs against Robert Card.
This decision does appear to be an example where the plaintiff may have won the battle, but lost the war and reinforces the importance, before commencing litigation, of carefully considering all possible results and their risks.