Sometimes you wonder how a trial court can get something so wrong. Like here.
Party A sends requests for admission to Party B, which denies them. Party A then wins at trial, and seeks cost of proof sanctions against both Party B as well as B's counsel for all the attorney's fees A incurred after the RFAs were sent. The trial court grants the motion.
Two problems. First, it's crystal clear you can only award cost of proof sanctions against a party, not its counsel. Second, in this particular case, some of the fee award was obviously improper -- like fees for attending a mediation, which hardly entails the cost of "proving" something at trial -- and Party B clearly had a basis for denying at least some of the RFAs even though B eventually lost.
So the Court of Appeal appropriately remands.
Admittedly, counsel for Party B below is partially to blame as well. He didn't specifically object to the request for fees against counsel, didn't show up at the hearing, and only spent a page and a half arguing that his denials were unjustified. Personally, if someone filed a motion asking for cost of proof sanctions of $50,000+ against me, I'd take the motion a bit more seriously.
Still, the trial court got this one wrong, and the Court of Appeal properly steps in. Justice. Albeit a bit delayed and full of unnecessary transaction costs.
