In Thambapillai v Labrash Security Services ( 2017 ONSC 3299) Justice Goldstein 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% 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 judgement, 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.