A man who alleged the territorial government was liable for a violent assault against him inside Yellowknife’s jail has been told he must cover a significant share of the GNWT’s legal costs.
Justin Clillie was randomly attacked and injured by another inmate, Jason Bard, in 2018.
In November last year, NWT Supreme Court Justice Annie Piché ruled corrections staff had not breached their duty of care in failing to prevent that attack.
Clillie ultimately requested $25,000 in damages before Piché ruled against him. Before that, he had initially sought $100,000 in general damages, special damages,
punitive and exemplary damages from Bard and the GNWT. (Bard is in default. His liability was not a part of the trial.)
Following Piché’s verdict, the GNWT – having successfully defended itself – applied for costs from Clillie.
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Clillie asked the judge to decline ordering costs against him, according to a written decision released on Tuesday, in part on the grounds that his case had “raised a novel issue” and that making him pay the GNWT’s costs “would deter others like him, who have modest means, from initiating litigation even in circumstances where they clearly have suffered injuries.”
Piché disagreed.
In her written decision, she said this was “far from the first time courts across the country have considered this issue,” so it could not be considered novel.
She said Clillie had not demonstrated how much his own legal fees were and had not shown that his means were a barrier to pursuing his case.
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“This was not a purely public interest litigation. Mr Clillie sought damages from the GNWT. He had an economic interest in the outcome of this litigation,” she wrote.
“I see no valid reason to deny costs to the successful party.”
Expert’s fees
However, Piché said Clillie shouldn’t have to bear all the costs of the expert the GNWT hired to testify during the case.
The territorial government asked that expert to review more than 14,000 pages of documents, attend the trial any time a witness gave evidence, and appear at the trial in person even though he doesn’t live in Yellowknife. All told, the costs of the expert attending the trial were more than $100,000.
Piché agreed with Clillie that there was no reason the expert had to fly to Yellowknife to appear at the trial. While the GNWT had said that was important as technology can be unreliable, Piché pointed out that Clillie had attended the whole thing remotely from Fort Simpson with barely any problem.
The judge also found that the GNWT had hired “an expensive expert” in part to try to make sure it won a case that could have set a “difficult precedent” had the court ruled in Clillie’s favour.
“It is legitimate for the GNWT to adopt such a litigation strategy, but Mr Clillie should not alone bear the burden of this approach,” Piché ruled.
“The GNWT must bear the greater part of the financial burden of this decision.”
The overall outcome is that Clillie must pay most of the GNWT’s costs – the dollar value of which was not specified – but does not have to pay for the expert’s travel expenses and must pay only 30 percent of the expert’s non-travel expenses.
