The High Cost Of Unreasonable Conduct: Why A "Hardball" Litigation Strategy Is A Costly Gamble

It is a fundamental strategic decision in litigation: to offer nothing, or to offer next to nothing, in hopes of forcing a plaintiff to abandon their claim or accept a low settlement offer rather than finance a trial and risk an adverse cost award. This "no offer" or "lowball" strategy may seem like a smart, albeit high-stakes gamble, but a growing body of Ontario jurisprudence makes it clear it may not be a gamble a prudent litigant should make. Courts are increasingly using their power to award costs to punish this approach, framing it not as a legitimate tactic, but as a form of unreasonable litigation conduct that undermines the very purpose of the justice system.

Of the recent decisions on this issue, none are more powerful than the Ontario Court of Appeal's recent ruling inBarry v. Anantharajah,2025 ONCA 603.