Judges and Electronic Searches

In Denis v Truemner (2007), 84 OR (3d) 260 (Ont. S.C.J.), in dealing with the costs claimed in the action, Spies J. said:

[26] The disbursements claimed by the defendant are significant. They include airfare in the amount of $398.00 and online electronic legal research in the amount of $606.00. On its face, the amount for research is excessive as the defendant only referred to six cases. Airfare for counsel is not dealt with in the Tariff, although I have the power to award it if I find that this disbursement was reasonably necessary. I note the plaintiff claimed for mileage and parking in the amount of $477. I was advised that although both the plaintiff and defendant reside in Ottawa, the action was commenced in Toronto and the plaintiff requested in the claim that it be tried in Toronto. As it was reasonable for the defendant to retain Ottawa counsel, I find that that disbursement is reasonable. For these reasons I fix the defendant’s disbursements in the amount of $1,100.

How can we convince judges that good research might in fact be represented by counsel only referring to six cases rather than, say, the 25 or more he or she could possibly have found by using QL or some other database?

See http://www.canlii.org/en/on/onsc/doc/2007/2007canlii292/2007canlii292.html

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Comments

  1. You mean apart from the fact that the judge’s comment might be factually wrong because that was for just the amount of time it took to find those 6 cases and it didn’t take all that long? Some of the databases are that expensive.

    You can’t, in too many cases, for the oppoiste side of the reason we get things like this.

    Wilson v. Bobbie, 2006 ABQB 22
    http://www.canlii.org/en/ab/abqb/doc/2006/2006abqb22/2006abqb22.html

    [42] Since neither counsel cited the binding decisions of the Court of Appeal (or indeed, any authority at all), neither party is entitled to costs of this motion.

    For those who care, go to the case and count the number of cases the judge listed that could have been mentioned, not to mention the texts that could have been mentioned.

  2. There’s this in Milsom v. Corporate Computers Inc., 2003 ABQB 609 (CanLII), perViet, J:

    [7] The plaintiff is not entitled to a disbursement for legal research: using legal research techniques such as searching of electronic data bases or using legal researchers presumably reduces the fee for preparation that is already built into the tariff. These are techniques for lowering a lawyer’s costs, not for increasing them.

    She goes on to cite these references on the matter of computer searches:

    [14] On the issue of computer searches: Standquist v. Coneco Equipment 2000 ABCA 138 (CanLII), [2000] A.J. No. 554; 2000 ABCA 138 (C.A.); Stevenson & Côté, Civil Procedure Guide (1996) p. 1948; Civil Procedure Handbook 2002 p. 451; Lee et al v. Leeming (reflex-logo) reflex, (1985) 61 A.R. 18, at 19, (Q.B.); Argentia v. Warshawski (1990) 106 A.R. 222 (C.A.); Sidorsky v. C.F.C.N Communications Ltd. (reflex-logo) reflex, (1995), 27 Alta. L.R. (3d) 296 (Q.B.) at p. 304; Dornan Petroleum v. Petro‑Canada [1997] A.J. No. 21 (Q.B.); Lalli v. Chawla [1997] A.J. No. 457; 53 Alta.L.R. (3d) 121; 203 A.R. 27 (Q.B.) at para. 25; Kelly v. Lundgard (reflex-logo) reflex, (1997), 47 Alta. L.R. (3d) 184 (Q.B.); Atkinson v. McGregor 1998 ABQB 629 (CanLII), (1998), 66 Alta. L.R. (3d) 289 (Q.B.); Reid v. Stein 1999 ABQB 222 (CanLII), [1999] A.J. No. 533; [2000] 2 W.W.R. 349; 73 Alta.L.R. (3d) 311 (Q.B.); Standquist v. Coneco Equipment 2000 ABCA 138 (CanLII), [2000] A.J. No. 554; 2000 ABCA 138 (C.A.); Westco Storage Limited v. Inter‑City Gas Utilities Ltd (reflex-logo) reflex, [1988] 4 W.W.R. 396, (Man.Q.B.), at p. 407; Holmes (Re) (reflex-logo) reflex, [1991] A.J. No. 462; 80 Alta.L.R. (2d) 373; 121 A.R. 170; 7 C.B.R. (3d) 82; 2 P.P.S.A.C. (2d) 106 (Q.B.M.); Interclaim Holdings Ltd. v. Down, [2000] A.J. No. 327 (Q.B.), Kent, J. at para. 12; Vysek v. Nova Gas International Ltd. [2001] A.J. No. 1154 (Q.B.) Rawlins, J., at para. 293: Edmonton (City) v. Lovat Tunnel Equipment Inc. [2002] A.J. No. 1440 (Q.B) Lee, J. at para. 199: The Law of Costs, Mark M. Orkin, 2nd Edition, 17th Release

  3. I think that the way in which clients are billed for on-line research does not always reflect well on the profession and I am certainly not opposed to assessment officers taking the view, as they do in Alberta (as Simon’s comment indicates), that the cost of on-line research, like library research, pacing the floor or staring out into space seeking inspiration, and lots of other things should be considered as overhead and covered by the lawyer’s hourly rate. I’m waiting to find the first firm that charges a client its pro rata share of the office rent and secretarial assistance, leaving aside the question of just how the calculations might be made. New software to identify overhead costs to be billed to the client is continually being sold to and used by law firms. These issues are quite separate from the point I was making.

  4. Sorry, John, if I appeared to be deflecting from your point, which I take to be that 6 appropriate cases are better than a hundred scatter-shot judgments. And while I agree that QL etc. make the latter approach more likely in practice (what someone referring to the then new word processors called “greasing the skids of prolixity”), there’s no necessary connection. I guess that since there are fewer of them, it might be easier to inculcate the “quality” veiw in judges than in the profession at large and then hope that the court influences practitioners. I can’t say that I’m sanguine about the chances.

  5. Simon

    Don’t hold your breath. The best description of what goes on in much of the practitioner world (in my experience) is GIGO. Remember the Richard Prior / Gene Wilder movie where one was blind and the other lame. The practice situation is worse. It’s a quartet where the third person is deaf and the fourth mute. They’re led by a mim-conductor who hasn’t any useful knowledge about the subject in issue, or isn’t able to pass it on if he or she does and, in any event, even if her or she had such knowledge, is not competent in any of the languages spoken or understood by the quartet.

    That’s the good news.

    The bad new?

    The conductor doesn’t realize any of this.

  6. I agree with all of the above comments, but I want to add another. QL and ecarswell are tools which, in my view, are necessary for currency and completeness and, when used in as part of an informed, strategic approach to proper legal research, are there to complement print legal research (not as a replacement or even supplement). It is frustrating that so many lawyers (and students, who of course have been introduced to these tools as free services) do approach computer research in the same “Google” approach many take to Internet research. (This is where those of us who handle research instruction have a challenge to meet.)

    Also, as others have said, $600 can be incurred quite easily in firnding and ensuring the currency of 6 useful cases. Of course there are ways to reduce the hard costs in QL and ecarswell research, but, depending on the rate of the lawyer doing the research, these savings might be outweighed by additional time that may be spent.

    When I used to do freelance legal research (as an independent researcher for law firms), I paid a flat rate fee for QL so I used to include in my invoices a small flat charge for computer searches (with the blessing of the Law Society of Alberta). This was arond a decade ago so I don’t know if that approach still would work.

  7. That should have been mime-conductor.

  8. Here’s a blatant example of how bad it is out in ‘practice-land’.

    There’s at least a half-dozen, maybe more, cases released since March 2007 in which the lawyers have argued about factual causation, and the judges have written reasons dealing with factual causation issues, not mentioning the SCC’s decision in Resurfice v Hanke 2007 SCC 7 and clearly argued and decided based on the case law predating Resurfice.

    Anybody care to attempt to justify how that occurs, at least at the practitioner level?