Category Archives: Canada

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.

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.