Monthly Archives: May 2020

An 11-Year Long Employment Case

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Civil litigation clients often ask, “How long will this case take?” People who have never been involved in a civil court proceeding may be surprised to learn that civil matters are usually measured in years, not weeks. But how long can a lawsuit go on for? An employment law case released by the Ontario Court of Appeal this past year shows just how long a lawsuit in Ontario could take.

On January 31st, 2019, the Court of Appeal heard an appeal of a case which had been argued in 2016 and decided in 2017. The Court of Appeal was remarkably efficient, releasing its decision just six (6) weeks after the appeal was argued.

The interesting date in this case, however, is not the date on which the judgment at first instance was handed down, or the date on which the case was argued, but the date on which the case was commenced – 2008.

Most people understand that even after you go to court there is a right of appeal, and they understand that an appeal will add some time to the length of your legal matter. In this case, the time between judgment and appeal (less than two (2) years) was a drop in the bucket compared to the time between the commencement of the lawsuit and the argument at first instance, which took a staggering eight (8) years.

What we do not learn from the reported decision is whether or not there were valid reasons for the eight (8) years which transpired between the employment law case being commenced and it being argued at court. Extraordinary delays sometimes happen in civil litigation, but there are usually extraordinary events behind those delays, such as one of the lawyers being removed from the case due to illness, retirement, or death, for example.

A new rule came into effect in Ontario in 2012 with the goal of trying to prevent these sorts of extraordinary delays. Rule 48.14 of the Rules of Civil Procedure now requires the Registrar of the court to automatically dismiss every lawsuit which has not been set down for trial after the five-year anniversary of it having been commenced. This rule does not mean that a lawsuit has to go to trial within five (5) years, only that it has to be ready to go to trial within five (5) years. It seeks to strike a balance between giving parties and their lawyers enough time to prepare their lawsuit, while at the same time eliminating totally unreasonable delays.

And of course, this particular case is an outlier. Rarely will a relatively uncomplicated employment law case drag on for years, let alone eleven (11) years. But this case nevertheless stands as a marker of just how long, in some circumstances, a civil lawsuit can actually take.

Litigation Lessons from the Tiger King

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The “Tiger King” documentary is one of the most outrageous things ever produced for television and it has served up no shortage of talking points.  Buried under the many, many, many layers of intrigue are a couple of interesting observations for the world of civil litigation. 

A civil lawsuit can be a long, expensive, and laborious process, and the courts have taken steps to expedite the process of civil litigation where possible.  In particular, they have encouraged a much greater use of the mechanism of summary judgment.  In summary judgment, a case will come before the Court on a motion, rather than on a full trial, and the judge will make a ruling based on the materials before the Court, which will usually consist of predominantly or solely written materials.  On summary judgment witnesses are usually not called to testify in court, having previously given their testimony in the form of a written affidavit.  Not having live witness testimony greatly reduces the amount of time spent in court and can significantly streamline the process. 

We tend to think that this is a good thing and, overwhelmingly, it is.  There is an old saying in law that “justice delayed is justice denied”, and summary judgment is a powerful tool for fighting the delay that the court system seems to be so well known for.  Summary judgment is popular because it allows a litigant to go to court and obtain a judgment sooner than they otherwise would have. 

The lesson from Tiger King is that summary judgment streamlines the process for both the winner and for the loser.

The documentary tells the story of Carole Baskin’s civil lawsuit against Joe Exotic for copyright infringement.  Carole won the lawsuit on summary judgment.  She never had to go to trial: she got the Judge to rule in her favour before a trial.  As the loser in the lawsuit, Joe Exotic’s comments are notable.  He is filmed at the time saying, “You know the saying that you get your day in court?  Well I don’t feel like we got our day in court.”

“Justice delayed is justice denied”, but another old saying in the legal profession is, “Justice must not only be done, it must also be seen to be done.”  Summary judgment is a powerful procedural mechanism for shortening the length of civil disputes, but one must always be mindful of the countervailing concern, which is that a quicker process could be seen as being less thorough and/or less rigorous, which in turn could lead to the perception that the process is less fair because shortcuts are being taken on the journey to justice. 

If it means that a lawsuit which would otherwise take years ends up taking months, with largely the same result, then obviously this trade-off is worth it.  But it is useful for those of us who participate in the civil litigation system to remember that the efficiencies achieved by summary judgment do not come without risks.  In this case, the risk being that the party who loses on summary judgment might be less likely to accept the result as legitimate. 

The other observation to take from Tiger King should be warning to all lawyers who, in this age of social distancing, are looking to set up mediations by remote means.  If you have seen the documentary, you cannot forget this scene:

After having lost the lawsuit on summary judgment, Joe Exotic entered into mediation with Carole Baskin, with a view to coming to an agreement about how to pay the judgment.  They hired a mediator and, since Joe lives in Oklahoma and Carole lives in Florida, they conducted their mediation on a conference call. 

There are a few basic rules about a mediation, one of the most important of which is that a mediation is confidential.  Unbeknownst to either Carole or the mediator, Joe allowed a business associate of his to sit in on the conference call.  As the mediation progressed, this business associate, who had up to that point kept silent, suddenly exploded in a fit of rage, levelling a barrage of disgusting and vile epithets at Carole: the sort of sickening profanities which would make even the most shameless blush.  Needless to say, the mediation was not a success.

It is a real-life example of why a mediation held remotely is not a good idea: for the simple reason that the mediator cannot control the room.  They have no way of knowing whether or not unauthorised individuals are being made privy to the discussions and they cannot guarantee the confidentiality of the mediation.  The lesson from Tiger King being that when you are dealing with a character as volatile and off-the-wall as Joe Exotic, you should insist on holding your mediations in-person, so you can exert at least some measure of control over the process of the mediation.

In this case, the Plumage DOES Enter into it

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Mr. Davy purchased a parrot from Mr. Kidwai.  It was not a Norwegian Blue; it was an Eclectus.  Named Tiberius.  And he wasn’t pining for the fjords, but he was residing on the equally picturesque Salt Spring Island.

And in this case, the plumage DOES enter into it.

You see, this parrot started losing its feathers. Worried about its thinning plumage, Mr. Davy took it to a vet who informed him that the parrot had PBFD—Psittacine Beak and Feature Disease—and as a result now has a vastly reduced lifespan.  Tiberius is not yet an ex-parrot, but because of his PBFD he will run down the curtain and join the choir invisible much sooner than he otherwise would have. 

So Mr. Davy took Mr. Kidwai to the British Columbia Civil Resolutions Tribunal for having sold him a defective parrot.  Once we get past the irresistible similarities with the Monty Python sketch, the ruling in favour of Mr. Davy is quite interesting, and quite concerning for anyone who sells animals in Canada.

It is interesting, because the Member who decided the case found that Mr. Kidwai did not know, when he sold the parrot to Mr. Davy, that the parrot was sick.  So Mr. Davy’s action for fraudulent misrepresentation was dismissed. 

However, the Member went on to rule that BC’s Sale of Goods Act applied to the sale of this parrot.  The BC Sale of Goods Act specifies that goods sold in British Columbia must “be durable for a reasonable period of time having regard to the use to which they would normally be put and to all the surrounding circumstances of the sale”.  Relying on a previous case from the Civil Resolutions Tribunal which involved a puppy that developed seizures, the Member held that for the parrot to be “durable” within the meaning of the Act meant that the parrot had to remain healthy for six months after the sale. 

Because the parrot got sick less than six months after he was sold to Mr. Davy, the implied warranty of durability prescribed by the Sale of Goods Act had been breached and Mr. Kidwai had to repay 75% of the purchase price (only 75%, because Mr. Davy apparently got some value from having Tiberius as a pet) and also had to reimburse Mr. Davy for the veterinary fees he incurred. 

This case is not binding on other courts in Canada, but it nevertheless sets a very worrying precedent for anyone involved in breeding or animal husbandry.  I think very many kennel owners or breeders of domestic pets would be surprised to learn that when they sell an animal they are guaranteeing the animal’s health for six months after it leaves their premises.  Especially because most, if not all, of the factors which affect the animal’s health are out of the control of the breeder at that point. Equally concerning is the potential liability: not just for the price of the animal, but also for the cost of the owner’s veterinary bills, which the seller has no input on or control over.  This quirky case stands as a warning of the potential downside risk when selling pets.

Two Inconsistent Hockey Cases from Ontario

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Does it help to have the right lawyer argue your case in court? We would like to think that it doesn’t matter: that the justice of the case will prevail, regardless of how persuasive your lawyer is.

Well, try telling that to Robbie Levita. He lost his personal injury lawsuit in 2015 in which he sued the guy who hit him from behind during the dying minutes of a rec-league hockey game. He has to be scratching his head at the more recently-released case of Casterton v MacIsaac, where Drew Casterton sued the guy who hit him during the dying the minutes of a rec-league hockey game and won a judgment for more than $700,000.00.

To find any substantial difference between Mr. Levita’s case and Mr. Casterton’s case is an exercise in splitting hairs very, very finely. Any difference between the cases is minor, while the similarities are striking:

LevitaCasterton
Playing in a “non-contact” recreational hockey league in OntarioPlaying in a “non-contact” recreational hockey league in Ontario
Signed a liability waiver in favour of the leagueSigned a liability waiver in favour of the league
Incident happened in the last minute of play, with his team trailingIncident happened in the last minute of play, with his team trailing
Hit by an opposing player while not in possession of the puckHit by an opposing player while not in possession of the puck
Suffered serious injuries, including a broken tibia and fibulaSuffered serious injuries, including long-term brain damage

To find any differences between these two incidents requires a fair degree of creative thinking. What tipped the results in either direction were the factual findings by the respective Judges. Mr. Justice Firestone found that that the guy who hit Mr. Levita did not do so with an intent to injure, while Madam Justice Gomery found that the guy who hit Mr. Casterton deliberately attempted to injure him, or was reckless about the possibility that he would do so. It was on these findings of fact that the respective cases turned.

The Casterton case shows that the Levita case could have easily turned out differently, and vice versa. One has to question how much of a role the advocacy of the respective lawyers played in these cases.

  • Did Mr. Casterton have more effective advocates than Mr. Levita?
  • Or, did the Defendant in the first case have more effective advocates than the Defendant in the second case?
  • Perhaps it was a combination of both?

At the same time, it may have been some other reason or reasons, completely unrelated to the effectiveness of counsel. Perhaps the Defendant in the Levita case came across as sympathetic and remorseful in a way that the Defendant in the Casterton case did not: we can only speculate. All the same, we cannot rule out the strong possibility that the effectiveness of counsel played some role in these two very similar cases ending up with very, very different results.