Accounting for Law
Employment & Labour

Plaintiff wins summary judgment, gets $24K for claim, $35K costs

By Barry B. Fisher

In this case, the judge found that a 72-year-old security guard with 12 years’ service was entitled to 8.6 months notice and $7,500 for mental distress.

In the cost assessment, the plaintiff beat his Rule 49 offer. Moreover, the judge noted that the defendant refused to have the case mediated.

The result was a $35,000 substantial indemnity cost award, more than the amount awarded at trial for the claim. The judge had this to say about the defendant’s conduct:

“I found that the Defendant treated the Plaintiff – an elderly immigrant of very limited means and sophistication – unfairly. The Defendants then played hardball litigation. They are entitled to do that and it is not necessarily unethical or immoral. But it is expensive. When I take into account the offer to settle and the manner in which the case was litigated, I agree that $35,000.00 in substantial indemnity costs, all-inclusive, payable to the Plaintiff, is appropriate.”

The defendant submitted a cost claim for its side at 50 per cent of the plaintiff’s claim. We can, therefore, assume that they spent at least $17,500 for their own costs. Thus their total cost of this litigation would have been at least $24,576 + $35,000 + $17,500 = $77,076.

Apparently, the main issue at trial was based on whether the 72-year-old plaintiff was able to mitigate his damages.

That apparently was the $77,000 question.

Gee, I wonder what the outcome and cost would have been if the defendant had agreed with the plaintiff’s proposal to mediate.

Unfortunately, Rule 24.1 (mandatory mediation) and the relevant practice directions do not require a mediation before a motion for summary judgment, only before a trial.

Fixing this loophole in the Rules would go along way to reducing litigation costs, at least in the three jurisdictions that have mandatory mediation, namely Toronto, Ottawa and Windsor.

Read More at Barry Fisher’s Employment Law Blog

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