Law Times

PAGE 4 NEWS Motion dismissed without costs Continued from page 1 would likely disappear. "The decision is very impor- tant in saying an order for secu- rities for costs is not the normal course to take," says Pribetic. "It recognizes that law firms who take on contingency-fee agreements will shy away if they feel the risk is too high, and that could become a huge liability for the system." For Pribetic, the question then becomes whether or not law firms and lawyers will begin to insert indemnification clauses into their contingency-fee retainers with added general security agree- ments padded into them as well given what he says was an "escape clause" in the ruling. 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Offer not valid in conjunction with any other offer from Carswell and Canada Law Book. Continued from page 1 highlights the importance that exceptions in the case law play under the rule in defamation cases where the court awards full indemnity costs. It also marks an unusual move by the court in awarding those costs. "The case is significant in showing that it is possible to get very GAIN INSIGHT INTO PROSECUTING OR DEFENDING WAR CRIMES NEW PUBLICATION PROSECUTING GENOCIDE, CRIMES AGAINST HUMANITY AND WAR CRIMES IN CANADIAN COURTS FANNIE LAFONTAINE Uniquely focused on war crimes legislation, this new publication will help you better understand the rules and law governing the prosecution and defence of war crimes domestically, and the legal issues surrounding different applicable law. 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"In particular, it shows that you can get costs that exceed the monetary jurisdiction of simplified rules, particular- ly under certain exceptions. This can be particularly true where there is a finding that the principle purpose was non-monetary. This is also true in situations where there is evidence that the de- fence behaved in a way that unreasonably prolonged the case or increased the costs of the simplified rules action." Riddell adds that those exceptions play an important role in protecting both the plaintiff and the defendant in such actions un- der the simplified rules. "The exceptions prevent a less wealthy client from being abused under the Trafalgar rule when they are up against a wealthier cli- ent in court," says Riddell. "It also prevents the wealthier client from stopping the less wealthy client from gaining justice under the simplified rules." Riddell notes that although the court rarely awards full indem- nity costs under such exceptions, doing so can be important in defamation cases. "Exceptions of this nature are relatively rare. In most cases, the ORDER # 983860-65199 $185 Hardcover approx. 600 pages February 2012 978-0-7798-3860-8 Shipping and handling are extra. Price subject to change without notice and subject to applicable taxes. AVAILABLE RISK-FREE FOR 30 DAYS Order online at www.carswell.com Call Toll-Free: 1-800-387-5164 In Toronto: 416-609-3800 principal objective is to have a monetary award, so this decision was particularly unique." LT added in an escape clause of sorts, and while the interpretation of it would probably be fairly narrow, there are certainly ramifications if that interpretation is widened," says Pribetic. "The alternative to the indemnification clauses may be indemnity insurance, but I am unaware of any existing [compre- hensive general liability] policies that would cover that." But Osgoode Hall Law School professor Trevor Farrow says a widened interpretation of the de- cision is unlikely to happen any time soon given the court's cur- rent views on security costs. "This appears to be new ter- rain," says Farrow. "What matters is that it is a contingency-fee case and it appears to try to strike a bal- ance between the different voices in the room. The courts rarely or- der lawyers to pay costs except in cases of misconduct, and I think it was a wise decision by the court to not close the door completely on similar cases in the future." Farrow adds that because the Court of Appeal oſten makes decisions with far-reaching im- plications, not closing the door completely on future cases also means the decision avoids mak- ing it much harder to bring such claims later on. "This policy choice was made in favour of an open and acces- sible court system," he says. "It says lawyers didn't create the world, and they shouldn't have to bear the financial burden of their cli- ent's case. If they did have to, it would create a significant chilling effect, in my opinion." Farrow also says that while the decision may not sit well with some members in the justice sys- tem, he feels the ruling was fair and will help balance the different needs and voices of those in court. "If lawyers were required to pay for security for costs in contingency-fee agreements, it would push that risk too far and create a double risk for lawyers. While contingency fees work for a number of people in the system, if lawyers became responsible for securities for costs, that would certainly chill the ability of appli- cants to file claims in the future." In the meantime, Farrow isn't surprised that Armstrong dis- missed the motion without costs. "The court rarely orders law- yers to pay costs and it appears this is no exception," he says. "I think as long as people remember the underlying policies behind the decision, its importance will continue to be recognized." LT February 27, 2012 • Law Times www.lawtimesnews.com Exceptions 'relatively rare'

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