The former solicitor for the County of Norfolk in Ontario has been ordered to pay more than $24,000 in legal costs following a a series of complex motions related to her wrongful dismissal case — which isn’t over yet.
The Ontario Superior Court of Justice’s decision pointed to the contentious nature of the litigation, which involved multiple motions, affidavits, and cross-examinations.
A notable aspect of the ruling was Justice Valente’s decision to set aside a certificate of non-attendance obtained by the terminated solicitor’s counsel when a key witness was unavailable for cross-examination due to being on a family vacation in Mexico.
A turbulent legal battle
P.B., who began her role as Norfolk County solicitor in September 2019 and was terminated without cause in November 2021, filed a wrongful dismissal claim on Feb. 4, 2022. In response, the defendants, including the County of Norfolk, the Board of Health for Haldimand-Norfolk Health Unit, a former Norfolk County mayor and a consultant, have mounted a vigorous defence, leading to a series of legal skirmishes.
Among these was the plaintiff’s move to dismiss a contempt motion filed by the defendants, arguing it was “frivolous, vexatious, or otherwise an abuse of process.” The proceedings have been marked by numerous refusals and undertakings, with each side accusing the other of procedural missteps and unreasonable behaviour.
Setting aside the certificate
One of the interesting points in the ruling was the decision to set aside the certificate of non-attendance. The certificate was issued after P.B.’s counsel scheduled a cross-examination date for the witness without consulting the defence, who promptly informed that he would be unavailable due to his vacation.
Justice Valente found that it was unreasonable for P.B.’s counsel to unilaterally set the cross-examination date and obtain the certificate, stating, “It was unreasonable for the Plaintiff to have obtained it, and later, to have required the Defendants move by motion to set it aside.”
The judge pointed to the importance of co-operation and trust between legal counsel to ensure the effective functioning of the judicial system.
Compelling answers and cost orders
In addition to setting aside the certificate, Justice Valente ordered P.B. to provide written answers to a series of refused questions and those taken under advisement during her cross-examination. The questions pertained to two affidavits central to the case: one sworn in December 2023 and another in October 2022.
The court found that questions related to the merits of the defendants’ contempt motion were relevant and should be answered. Justice Valente rejected P.B.’s argument that the questions were premature or protected by solicitor-client privilege, stating that privilege had been waived in specific instances where P.B. had put certain communications with her lawyer in issue.
Significant costs awarded
Given the complexity and contentious nature of the proceedings, the court awarded substantial costs to the defendants.
Norfolk County and the Board of Health were awarded $10,786, while the former mayor and a consultant were awarded $13,476. Justice Valente justified the cost awards on a substantial indemnity basis, citing the plaintiff’s unreasonable position and conduct, which had unnecessarily escalated the litigation.
“The Plaintiff’s intransigence had no factual or legal basis in my opinion, and that type of conduct is to be discouraged. This type of litigation strategy serves one purpose and one purpose only: to increase the temperature and cost of what is already high conflict and expensive litigation,” Justice Valente stated.
The court set aside the certificate; ordered P.B. to provide written answers to the questions refused and taken under advisement during her cross-examination; ordered P.B. to re-attend to be cross-examined at her own expense to answer any questions arising from her answers; and a total of $24,262 in legal costs.
For more information, see Boutis and The Corporation of the County of Norfolk et al, 2024 ONSC 3985 (CanLII).
