Law Times

Law Times • January 23, 2017 Page 3 www.lawtimesnews.com Insurance expert wins battle over bill with lawyer BY ALEX ROBINSON Law Times A judge has ordered an Ottawa lawyer to pay his own expert $36,000 in costs in a spat over a $2,768 bill. Lawyer Alan Clausi launched a $95,000 lawsuit against insur- ance broker James Bullock, after he thought he was overcharged for unfinished work. In 2014, Clausi retained Bull- ock, who often testifies as an ex- pert in insurance-related cases, on an insurance claim matter. Clausi realized that Bullock could not assist his client and told him to stop work, send him a bill and return the remainder of a $5,000 retainer. When Bullock sent a bill of $2,758.50, Clausi threatened to sue him, and he later launched his action for breach of fiducia- ry duty, misrepresentation and other damages. What started as a dispute over $2,000 soon escalated into a matter in which judicial resourc- es were "consumed out of all proportion to the real issues in dispute," said Ontario Superior Court Justice Calum MacLeod. "It is hard to overstate how improper it was for a lawyer to commence an action such as this against an expert he had re- tained in the circumstances out- lined above," MacLeod wrote in his costs decision, Alan Clausi PC v Bullock. "It was not simply foolish. It was a blatant attempt to bully the defendant by commencing inf lated abusive and frivolous litigation." MacLeod dismissed Clausi's action in a summary judgment motion in March 2016. At the time of the dismissal, MacLeod was a master. In the costs proceedings, Clausi's lawyer John Cardill ac- knowledged that his client "had acted foolishly in initiating the law suit" but that Bullock's ac- tions had compounded the situ- ation "by responding in kind," the decision said. Cardill had urged that the case was one of "co-operative stupidity" and that neither side should be awarded costs. "I guess this would be the judicial equivalent of sending the children to bed without any supper when a parent is told 'he started it,'" MacLeod said in the decision. Lawyers say the case shows what can happen when litigation is based on principle rather than merits. Brian Cameron, a certi- fied specialist in civil litigation, says it is hard to understand how the matter got to this point, as the litigation ended up being so much more expensive than sim- ply settling the matter. "They didn't assess it from a merits point of view, they as- sessed it from an 'I'm not fold- ing, I'm right' point of view," says Cameron, a partner with Oatley Vigmond, who was not involved in the case. "Sometimes being right is one thing, but would you rather be right and poor or save your money?" Cameron says he thinks the cost awards were high but that they were about sending a mes- sage. "It's what happens when peo- ple fight over principle and not over money, because courts are about money, especially in civil litigation," he says. MacLeod found that much of the misunderstanding could have been avoided if Clausi had provided documented specifics to Bullock of fees and the scope of the work when he retained him. When Clausi ended the re- tainer, Bullock said his hourly rate was usually $450, but he had reduced it to $350 considering the circumstances. Clausi responded by saying he could not justify that sort of bill, that the normal hourly rate for an expert was $100 and that he would agree to pay $700. Bullock countered by saying, "If you were looking for a pro bono case, it should have been explained at the time of engage- ment." When Clausi threatened liti- gation, Bullock said, "I am not an advocate for your case and my work is/was not contingent on finding information supportive of your case." While MacLeod found that Clausi was responsible for fail- ing to establish a fee up front, he said Bullock could have also helped avoid the ensuing situa- tion by reducing his account or by refunding the balance of the retainer. MacLeod referred the matter to an assessments officer, who determined the bill should be $1,500. MacLeod noted that while Clausi launched what he called an "inf lated claim" that had "all the hallmarks of abuse of pro- cess," he was not necessarily wrong in the underlying dispute and successfully got Bullock to lower his bill. The judge said the action could have been resolved at an early stage in the process or at Small Claims Court, but instead there were discoveries, motions and an assessment of an expert's fees in addition to the proceedings concerning costs. But Clausi refused to have the matter moved to Small Claims Court and wouldn't abandon his claim, the decision said. "This is indeed a case in which proportionality, common sense, communication, and tra- ditions of collegiality appear to have been largely ignored," Mac- Leod said. Alden Christian, the lawyer who represented Bullock in the costs proceedings, says the fur- ther a matter goes, the higher costs become and the more re- luctant anyone is to settle. "I don't think the plaintiff knew how to stop the ball rolling down the hill once he started," says Christian, a partner with MBC Law PC. Clausi and Car- dill did not respond to requests for comment. LT NEWS Brian Cameron says a judge who ordered a lawyer to pay $36,000 in costs to an insur- ance expert after a fight over a bill was sending a message. law.utoronto.ca/ExecutiveLLM GPLLM Global Professional Master of Laws [Get a Master of Laws] Because business issues are legal issues. So if you want to get ahead in business, get the degree that gets you there faster. 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