Counsel Beware: Experts Can Cost You More Than You Bargained For

In the recent decision of Bailey v. Barbour 2014 ONSC 3698, Madam Justice Healey ordered counsel to pay costs personally, pursuant to Rule 57.07 of the Rules of Civil Procedure.

Following the Ontario Court of Appeal decision in Galganov v. Russell (Township), the Court considered the two-part test in deciding whether costs should be ordered against a solicitor personally. First, did the lawyer’s conduct cause costs to be incurred unnecessarily? Second, as a matter of discretion (and applying the extreme caution principle), in the circumstances of the particular case, is the imposition against the lawyer personally warranted?

In Galganov v. Russell (Township), the Court found that there was no question that having the expert testify wasted trial time; “…in this case, the harm is done; preparation and trial time wasted by the receipt of evidence on which this Court cannot possibly place any reliance…” As to whether counsel caused those wasted costs to be incurred, the Court found that he had, by calling an expert who he knew, or should have known, was not impartial.

The Court found “overwhelming evidence” of the expert’s lack of impartiality. Despite this, counsel continued to utilize his services and presented him to the Court as though he was an impartial witness. The Court stated that this was a case where no benefit of any doubt could be given to the lawyer. It was plain and obvious that the lawyer had breached his obligation to the Court to present objective expert evidence and in doing so he acted in bad faith and was directly responsible for wasting costs.

The expert took up approximately 20 per cent of the trial time. Accordingly, the Court placed the cost figure to be paid personally by the lawyer at $98,000, which was 20 per cent of the $490,000 costs awarded to the successful party.

At Howie, Sacks & Henry we understand the importance of selecting the right experts, and ensure that they will provide fair, objective and non-partisan opinions. This approach allows us to best serve our clients and pursue just results. For more information on this case or the work that we do, contact Meghan Hull Jacquin at or Michael J. Henry at

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