The fact such costs, in the amount of $27,454 were awarded to the defendant is “somewhat rare” and demonstrates “you better be careful what you claim,” says Bruce Baron, an employment lawyer at Miller Canfield Paddock and Stone LLP in Toronto.
Baron says substantial indemnity costs are typically reserved for unproven allegations of fraud. “If your allegations are serious enough the courts may treat them the same and that’s what happened here.”
The plaintiff, Nicole Amota, claimed that she had been wrongfully dismissed and lost the opportunity to earn about $60,000 a year from her employer, ASAP Secured Inc., of Markham, Ont. However, in the 18 months she worked for the company she made $14,000 and $28,000 a year in 2008 and 2009 respectively. She left the company in early 2010.
“They were all guns a blazing and they came into a pretrial with excessive expectations,” says Baron. “They took the position that she was prevented from advancement and shifts were given to other people. During discovery it became clear she wasn’t going to be making $60,000 a year — it was very seasonal work, not full time; she was an occasional, hourly employee. There is no way she was going to make $60,000.”
Upon receiving the information regarding Amota’s work history, a motion was brought by her counsel to be removed from the case and Baron received an order of the court relieving counsel of record.
It also didn’t help that Amota, who lived in Angus, Ont., abandoned her claim after Baron presented her lawyer with information during discovery that detailed various attempts the company had made to provide her with employment. It presented a very different picture than the facts Amota had given her counsel.
“The plaintiff ultimately abandoned her action. She had advanced this claim so aggressively and so furiously and then absconded. If she had ultimately taken this to trial, even if she had lost, she may have only been responsible for partial indemnity,” he says.
The lesson, says Baron, is that as a plaintiff and as plaintiff’s counsel, you have to be careful what you claim. “If you make serious and aggressive claims and can’t prove them you can be liable for a substantial indemnity cost scale as opposed to a partial cost scale. She was advancing very serious claims such as bad faith, harassment, and mental distress,” says Baron.
On Aug. 17, Ontario Superior Court Justice Glenn Hainey ordered Amota to pay ASAP Secured’s costs and her claims against the company were dismissed.
Baron says Amota, who was employed as an occasional security guard earning $12 an hour between 2008 and 2010, issued the claim in early 2010 after exchanging words with her direct supervisor. An internal investigation was conducted and the company determined there were no grounds for the allegations. ASAP Secured continued to offer her occasional work but she stopped returning phone calls offering her work.
The company continued to have a difficult time getting in touch with Amota and eventually placed her on an inactive list.
“She got upset with that and said she felt she was being terminated,” says Baron. “They indicated to her that if she showed up for shifts she would be put to work.”
However, Amota returned her security guard uniform and the company was served with the claim that included wrongful dismissal, constructive dismissal, breach of contract, repudiation, negligence, assault, mental distress, intentional infliction of mental distress, harassment, and bad faith. She claimed general and specific damages in the amount of $100,000.
“She made a kitchen sick claim — there was everything but the kitchen sink in there,” says Baron. “The employer was understandably upset with this and we defended on the basis that she effectively walked off the job and wouldn’t take direction.”
ASAP Secured’s president Todd Cooper said he was never prepared to settle with the employee out of court.
“We knew this claim would take a lot of our time and have costs associated to it. Settling the claim to make it go away was never an option for us because our brand and reputation are vitally important to us. Having the decision go in our favour was very important for us, and out of principle, we fully intend to recoup the monies awarded,” Cooper said.