It’s an unfortunate reality that litigation counsel will sometimes utilize procedural motions to drive up costs or delay a proceeding.
Such motions are frowned upon by the court as was recently affirmed by the Superior Court of Justice in Olasz Scanning and Core Drilling Inc. v. J&S Mechanical Incorporated et al (“Core Drilling”).
In Core Drilling the Plaintiff was forced to bring a motion to validate service of the Statement of Claim on the Defendant, Shakil Ahmad (“Ahmad”) as a result of Ahmad’s lawyer’s refusal to accept service of the Statement of Claim on his behalf. By way of brief background, the Plaintiff made an unsuccessful attempt to serve Ahmad on Jun 7, 2024. Despite the fact that the Statement of Claim had not been served on Ahmad, on August 4, 2024, his counsel wrote to counsel for the Plaintiff advising that his offices had been retained by Ahmad in relation to the proceeding. The correspondence went on to discuss the merits of the Plaintiff’s claim in the action and why Ahmad would not be liable. In the same correspondence, Ahmad’s counsel:
- Requested a waiver of the Statement of Defence;
- Requested that the Plaintiff’s counsel not take any steps to note Ahmad in default without prior written notice; and,
- Stated that the email did not constitute acceptance of service of the Statement of Claim on behalf of Ahmad.
In the weeks that followed the Plaintiff’s lawyer requested that Ahmad’s lawyer accept service of the Statement of Claim but these requests were refused by Ahmad’s lawyer. As a result of the refusal to accept service of the Statement of Claim, the Plaintiff was forced to proceed with a motion to validate service.
Ahmad’s lawyer advanced the argument that he could not accept service of the Statement of Claim because he did not receive instructions from Ahmad to do so. Associate Justice Rappos rejected this argument stating that lawyers are officers of the court and are “not free to act on whatever instructions they have received from their clients.” Lawyers are obliged by the Rules of Professional Conduct to, amongst other things, “agree to reasonable requests concerning…the waiver of procedural formalities, and similar matters that do not prejudice the rights of the client.”
The court granted the Plaintiff’s motion and more importantly, awarded the Plaintiff costs on a substantial indemnity basis. Associate Justice Rappos held that the motion should never have been before the court and went on to state that Justice Myers’ comments in Strathmillan Financial Limited v. Teti regarding default proceedings are equally applicable to matters relating to service. Service issues should not be used by lawyers for tactical purposes. Using the service rules for tactical advantage just sets the parties down the path of unnecessary motions.
Core Drilling affirms that the courts will not look kindly upon parties taking unreasonable positions and wasting the court’s time with unnecessary procedural motions which are intended to drive up litigation costs and delay the proceeding.