Flaherty McCarthy LLP recently obtained a significant costs award on behalf of a defendant in a personal injury action after the Ontario Superior Court of Justice found that repeated last-minute trial adjournments had caused substantial defence costs to be wasted.
In an endorsement released August 20, 2026, Justice M. Henschel ordered the plaintiff to pay the defendant, Nevada Scott, $15,038.03 in costs thrown away. The defendant was represented by Michael McChesney of Flaherty McCarthy LLP.
The decision provides a useful reminder that parties who cause a trial to be adjourned at a late stage may be required to compensate the opposing party for trial preparation that has been wasted or must later be repeated.
Background
The action arose from a motor vehicle accident that occurred on June 13, 2018. Liability had been admitted and the principal issue remaining for trial was damages.
The plaintiff was examined for discovery on November 30, 2021. Following the examination, it was apparent that a capacity assessment was required. The Court noted that plaintiff’s counsel did not dispute that this issue had become apparent at discovery.
Over the following years, defence counsel repeatedly raised the need for the assessment. The Court found that Mr. McChesney wrote to plaintiff’s counsel several times about the capacity issue and made ongoing efforts to have the assessment completed so the case could proceed.
Despite those efforts, the assessment remained outstanding as the first scheduled trial approached.
The trial had been scheduled for September 2025. However, the plaintiff did not seek an adjournment until September 2, 2025, after the trial coordinator advised the parties that they were required to attend court on September 8 to select a jury. By that point, almost four years had passed since the need for a capacity assessment had first been identified.
The September trial was adjourned to January 2026.
The capacity assessment was finally conducted on December 6, 2025. The report, completed on December 23, 2025, concluded that the plaintiff was capable.
A second adjournment followed. After the trial coordinator again contacted the parties regarding jury selection for the January 2026 sittings, plaintiff’s counsel advised on December 30 that another adjournment would be sought. The formal request was made the following day.
Defence Efforts to Move the Case Forward
The Court reviewed in some detail the steps taken by the defence over the years to address the outstanding capacity issue.
Those efforts included repeated correspondence beginning immediately after the 2021 discovery, requests for updates in 2022, raising the capacity issue before a proposed mediation, obtaining a psychiatric assessment in 2024, and continuing to press for the issue to be resolved as the September 2025 trial approached.
Of particular significance, when plaintiff’s counsel advised in July 2025 that difficulties had been encountered locating a capacity assessor, the defence identified an assessor who was available to complete the assessment before trial.
The Court accepted that the defence had made ongoing efforts over approximately four years to encourage plaintiff’s counsel to arrange the necessary assessment.
Costs Thrown Away
Justice Henschel explained that costs thrown away are intended to compensate a party for trial preparation that has been wasted, or that must be repeated, because a trial has been adjourned or a mistrial has occurred.
The purpose is compensatory rather than punitive. The question is whether work and expense incurred in preparation for trial have effectively been lost because the trial did not proceed.
The Court noted that costs thrown away may be awarded on a full or substantial indemnity basis to compensate the party for the wasted costs incurred.
In this case, the Court had “no hesitance” in finding that the defendant incurred costs thrown away because the capacity assessment had not been completed in a timely fashion and because of the late requests to adjourn the trial in September and December 2025.
The Court found that the last-minute nature of the adjournment requests increased the defendant’s wasted costs, including the expense associated with having experts prepared and available for trial.
Justice Henschel also found that many aspects of the defence trial preparation would have to be repeated because of the delay.
The Court observed that plaintiff’s counsel had been aware of the need for the capacity assessment since November 2021, but that the assessment was not conducted until December 2025, three months after the original trial date.
The Court further found that there was no explanation in the record for the lengthy delay or for why the adjournments were requested at the last minute.
Should Plaintiff’s Counsel Personally Pay the Costs?
The defendant also sought an order requiring plaintiff’s counsel personally to pay the costs thrown away under Rule 57.07 of the Rules of Civil Procedure.
The Court found that, on the face of the record, there appeared to be a clear basis upon which the conduct could fall within Rule 57.07 because costs had been incurred without reasonable cause or wasted through undue delay.
However, the Court emphasized the requirement for extreme caution before making a personal costs award against a lawyer.
The record did not clearly establish the extent to which the plaintiff herself may have contributed to the delays. Given the potential involvement of solicitor-client privilege and issues relating to capacity, the Court declined to order plaintiff’s counsel personally to pay the costs.
The costs award was therefore made against the plaintiff without precluding the plaintiff from applying for an order under rule 57.07(1)© requiring to her counsel repay her money paid on account of the throwaway costs.
Quantum of the Award
The defence sought substantial recovery for the trial preparation and disbursements that had been wasted.
The Court accepted that significant costs had been thrown away, but distinguished between preparation that would have to be repeated and work that would remain useful when the action ultimately proceeds to trial.
Some work, such as witness lists, draft examinations, legal research, reviews of medical records and other trial preparation, could still be used or updated for the eventual trial.
Other work was regarded as entirely wasted, including final trial reviews, final strategy preparation, expert scheduling and cancellation expenses, communications regarding whether the trial would proceed, work relating to the capacity issue, and the preparation and argument of the costs motion itself.
The Court concluded that approximately 50 percent of the claimed legal work would remain useful at the future trial.
It awarded $8,487.63 in legal fees on a substantial indemnity basis and $6,550.40 in disbursements, for a total award of $15,038.03.
The plaintiff was ordered to pay that amount within 30 days after completion of the trial or within 30 days of any final settlement of the action.
Why This Decision Matters
The decision illustrates the significant costs consequences that can follow when a party waits until the eve of trial to address an issue that has been known for years.
Trial preparation is expensive. Lawyers, experts, witnesses and clients commit significant time and resources as a trial date approaches. Where a late adjournment renders part of that preparation useless, the innocent party may be entitled to compensation for the resulting waste.
The decision also demonstrates the importance of documenting efforts to move litigation forward. The Court referred repeatedly to the defence correspondence and the steps taken over several years to have the capacity issue resolved before trial. That history was important in assessing both responsibility for the adjournments and the resulting wasted costs.
Finally, the endorsement draws an important distinction between an award of costs against a party and the exceptional remedy of ordering a lawyer personally to pay costs. Even where counsel’s conduct appears capable of engaging Rule 57.07, courts remain cautious before imposing personal liability.
Successful Result for Flaherty McCarthy
Michael McChesney of Flaherty McCarthy LLP successfully represented Nevada Scott on the motion.
The decision resulted in a substantial costs award compensating the defendant for legal work and disbursements wasted as a result of the two adjourned trials.
Flaherty McCarthy LLP represents insurers, insured defendants, plaintiffs and other parties in civil litigation throughout Ontario. Our lawyers regularly address complex procedural, evidentiary and costs issues arising throughout the litigation process, including motions, discoveries, trial preparation and trial.
