Inappropriate comments in costs decision

I've seen lots of chatter about the cost award in Pye v Di Trapani, 2024 ONSC 2265. Skarica J ordered over $1 million in costs and interest to the successful plaintiff after an 18-day personal injury trial--roughly the equivalent of the damage award in the action itself.

I've only just had the chance to review the decision. I have a couple observations.

First, the two juniors on the case--a four- and one-year call, respectively--were billed at $550/hour. To put that in perspective, the most senior criminal lawyer in Ontario defending the most serious offence in the Criminal Code on the strength of a Legal Aid certificate earns a maximum rate of $186.44/hour. (That is up from $161.05/hour, the rate in place when Pye v Di Trapani was tried.)

I accept that private lawyers are entitled to fix their rates and expect they will exceed what Legal Aid can pay, even to senior lawyers in serious cases. But paying a 1-year junior three times the rate of a 30-year senior seems disproportionate, to say the least. I'm having trouble with Skarica J's finding that $550/hour for a one-year call was reasonable.

Second, I think Skarica J was way out of line with his choice of language. There is nothing wrong with thanking counsel for their helpful or able submissions, or even referring to their advocacy as unusually persuasive or impressive. But praising lead counsel for the plaintiff as "a true artist in advocacy" and "bold as a lion", referring to his advocacy as "a lost art rediscovered", undermines the impartiality of the bench. These kinds of remarks might put undue pressure on defendants in future trials opposite this lawyer to settle, if they learn that Skarica J will be their trial judge.

Worse still is his disparaging referral to the plaintiff himself as "miserable, unlikeable, old Mr. Pye". Skarica J used the plaintiff's presentation as "a miserable old man" to emphasize the "brilliance" of his lawyer's advocacy. It would be inappropriate for a lawyer to make demeaning comments of a party or witness like this, let alone the presiding judge. Skarica J is quite senior and ought to have known better.

I hope the Court of Appeal's dismissal of an appeal from this cost award (2025 ONCA 355) won't be taken as an endorsement of these rates or this language. On my reading, the panel took care to stress that they were dismissing the appeal because cost awards are discretionary, and not because they agreed with the decision below. I hope that care is reflected in how the case is treated as a precedent.