In Tessema v. Nemesis Coffee Holdings Inc (2022 BCCRT 1113) Tribunal Member Lopez awarded 3 weeks notice to a 32 year old courier driver making $20/hour for a 30 hour work week for a total of $1,800
To do some simple math, that means the Plaintiff effectively earned $1,920 for one days work, or $384/hour . Not bad pay for a courier.
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In Pohl v. Hudson’s Bay Company, 2022 ONSC 5598, Justice Centa determined that costs for the winning plaintiff who beat his own Rule 49 offer was to be $35,559 plus disbursements where his full indemnity costs were $42,425.
I found this following passage most interesting, where the Judge commeneds on the difference between how large firms bill and how small firms bill
“HBC submits that Mr. Pohl’s “higher than expected costs simply reflect a failure to appropriately delegate work.” It is true that all of the work done on Mr. Pohl’s file was done by one lawyer. This contrasts with the defendant who had four lawyers, four students, and a law clerk work on the file at various times. But there are many ways to organize legal work efficiently and effectively. Looking at the work done by Mr. Pohl’s counsel, it appears to have been done very efficiently, even taking into account his higher hourly rate, which it itself appropriate for a lawyer with 43 years of experience. I do not accept that the differences in how these files were staffed should mean that Mr. Pohln should receive less on a blended substantial indemnity / partial indemnity scale than HBC would have sought on a partial indemnity basis if it was successful.”
My Comments :
Ontario judges have been awarding significant cost awards in employment cases even where the hearing only takes one of two days. This matter can often play out in a mediation where there is a relatively small difference between the parties final offers. This is especially relevant in a simple notice case, where in most cases the Defendant has only paid out the ESA and the parties are only arguing about the length of the notice period. In those cases, the defendant will lose at trial, the only issue will be by how much. Since a loss almost always carries an adverse cost award ( unless the Defendants beats its own Rule 49 offer) , the cost award can easily exceed the difference between their last offers. As many Plaintiffs are on a contingency arrangement, going to trial carries less risk as the extra work is done by the lawyer and does not affect the Plaintiff’s recovery.
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In Janmohamed v Dr . Zia Medicine PC ( Ct file # CV-20-00646993) Justice Myers had a situation where the Plaintiff accepted the Defendants Rule 49 Offer of $15,000 plus costs to be assessed. The parties could not agree on costs.
The judge made the following comments after writing about what he thought was the ” very aggressive” fight by the Defendant.
“A plaintiff whose employment is terminated without cause is entitled to pay in lieu of reasonable notice. Employers should not be incentivized to low-ball and then force a plaintiff to sue to obtain what everyone knows is justly due. Costs and delay are horrible risks to a plaintiff who finds herself sitting at home having to spend thousands of dollars, while unemployed and vulnerable, to chase money that is obviously due from a well funded employer. In my view a plaintiff should reasonably expect to be paid her costs on a partial indemnity basis in a wrongful dismissal action. The quantum is an issue and I deal with it below. But it would be fundamentally unjust to leave the plaintiff under water as a result of bringing her employer to a position that it ought to have arrived at or near and offered fairly at the time it terminated her employment.’
I love the way Justice Myers gets to the point and doesn’t pull punches. Kinda reminds me of myself.
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