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Litigation is expensive, time-consuming, unpleasant and risky for everyone involved. Outcomes are hard to predict, as too are the fees and time that parties will spend either pursuing or defending a claim. Let’s not even talk about the potential reputational damage if litigation becomes public.

I am not litigation-averse. It has its time and purpose. For one reason or another, it sometimes just can’t be avoided.

However, in most cases, I like to think that reasonable people can find a way to avoid or settle litigation at any early stage. I often tell my employer clients that it would be a better expenditure of their resources to use the legal fees that they would otherwise pay for litigation to settle with an employee – of course, that is if a reasonable settlement can be achieved.

Most employers appreciate and agree with this practical business approach. Other employers recognize its worth, but feel strongly – often based on principle — that they are just not prepared to settle with the employee.

In the future, when I have employers who want to proceed with litigation based on principle or otherwise, I will send them links to the following recent Ontario Court of Justice decisions by Justice Quinn:

The Hearing Clinic v. 866073 Ontario – Judgment

The Hearing Clinic v. 866073 Ontario – Costs Award

While not an employment case, these decisions illustrate the perils of litigation. After a 72-day trial, the plaintiff (who had purchased a Niagara Falls hearing clinic from the defendant) was awarded damages in the amount of $423.20 for breach of contract – but was ordered to pay close to $1.2 million in costs to the defendants!!

The very first paragraph of Justice Quinn’s 326-page judgment sets the tone for his judgement, when he states:

Leave an untruthful man in the witness box long enough and he will reveal himself to the world. Here ends the lesson, but not the story.

The decision continues in much the same manner. Near the end, Justice Quinn states:

[The plaintiff] has taken everyone on a hideously time-consuming and obscenely expensive journey down his private yellow brick road to the outskirts of the Emerald City where, it appears, he has a residence. It was not a worthwhile adventure.

Costs will be a challenge. I expect that they are enormous. I would not be surprised to learn that solicitor-and-client costs exceed $1 million for each side.

He was right. When the parties could not reach agreement on costs, it came back before Justice Quinn who started his 32-page costs decision with:

We have a marvellous legal system in Ontario. Anybody is permitted to walk into a courthouse and commence a civil law suit about anything. The court will patiently provide all of the time and services reasonably (and, sometimes, unreasonably) necessary. The matter may go on interminably (and, usually, does) but our accommodating nature does not abate; our patience persists; we listen, we sit and we listen some more. However, when the law suit ends, the idioms arrive: the chickens come home to roost; the jig is up; the second shoe is about to drop; the cat is out of the bag; the fat lady sings; one sows what one reaps; and, here, so aptly, the cacophonous wait in the background is that of a piper, warming up and waiting to be paid – the sum of $1,316,535.16, to be precise.

Not only did Justice Quinn ultimately order costs of almost $1.2 million, he pierced the corporate veil and ordered $1 million of those costs to be paid personally by the plaintiff’s owners.

These decisions are worth the time to read – for both their illustrative and entertainment value.

Litigants beware!

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