In West Edmonton Mall Property Inc. v. International Stereo Centres Ltd., Smart wrote while it was impossible to determine whether Edmonton lawyer SandeepK. Dhir or E. Mark Keohane was to blame for initiating the squabble, he would resist the urge to award costs against each counsel under Rule 10.49, and instead directed the parties to bear their own costs.
“As one might expect, after reading the transcript, it is simply not possible to determine who is to ‘blame’ for the questioning to deteriorate to such a state that one of the parties felt it necessary to leave,” wrote Smart. “After hearing the arguments and complaints of both counsel, even if there was evidence provided, it is impossible to reconcile what transpired. Frankly, it is disappointing that counsel found it necessary to air their grievances with each other in open court before members of the public. It served only to potentially diminish the public’s respect for the administration of justice while diminishing respective counsel’s reputation and that of the legal profession generally.”
The issue first arose April 13, 2011, when the questioning of Alberta doctor Roger Watson denigrated into several confrontations between Keohane and Dhir.
According to Smart’s ruling, Dhir and Keohane spent nearly an hour in chambers that morning during which they made serious allegations against one another, numerous interjections and objections, statements that questioning was discourteous, and complaints about inappropriate facial gestures. Both also denied that such things were occurring and complained about the other’s ediotrialization of what happened.
The squabble eventually caused Keohane to leave with his client before the questioning was complete.
Shortly after, an application was brought to compel Dr. Roger Watson, and his wife Janet Watson to appear for questioning without further payment of conduct monies and an award of costs for the application. It also called for the costs of the uncompleted questioning to be thrown out on a solicitor client basis.
Keohane did not object to questioning continuing without additional conduct money and an order was given for the Watsons to attend at a date later agreed upon.
Still, Smart was quick to let his disapproval be known as he ordered both clients to bear their own costs.
“When two young children squabble and it is impossible to determine which of them is the culprit, the solution is often to send both to their room. It strikes me that I am dealing with an analogous situation . . . .” wrote Smart.