High-profile defamation suit offers lessons in litigation costs.
How many Canadian employees can afford to pay $130,000 in costs to the other side’s lawyer?
That is what an Ontario court recently adjudicated. It said former Ontario Provincial Police deputy commissioner Brad Blair, who had lost a high-profile defamation lawsuit in December, should pay to help cover the legal fees of the defendant Doug Ford, Ontario’s Premier.
While $130,000 may seem steep, it could be deemed as a slap on the wrist in proportion to the financial damages Blair actually faced for his illfated action.
Employers and employees alike should take Blair’s case as a lesson learned.
While most employment-related disputes neither engage the public interest nor draw the public eye, both sides frequently level very serious allegations of misconduct against the other that have the potential to severely damage reputations.
Some, of course, are well-founded, and litigants should not shy away from making their best case if there is a serious case of misconduct to be made.
But unscrupulous litigants occasionally concoct such allegations out of thin air, hoping they will pressure the other side to settle or give up, failing to appreciate the potentially massive downside risk of deploying such a strategy.
I know one plaintiff-side employment law firm which seems to put age discrimination into virtually every claim I see. If they are over a certain age, the claim is they were fired in part because they were old. If under, the allegation is that it was because they were young. Seemingly a no-lose strategy except for this: I put into my defences that making such a calumnious allegation of violation of human rights legislation should lead to the court awarding payment of substantial costs against their clients, regardless of the result.
The costs awarded against Blair is illustrative. His troubles began back in 2018 when he was serving as the Interim Commissioner for the OPP. Blair and Ford came to verbal blows after the premier passed him over and appointed Ron Taverner, a friend of Ford’s, to the position of OPP Commissioner.
Blair called for an inquiry by the Ontario ombudsman, then asked the divisional court to compel one, revealing controversial internal and confidential OPP documents in his court filings.
Ford fought back, publicly alleging that Blair violated Ontario’s Police Services Act and breached his oath as an officer by revealing the confidential documents.
Then, Blair was fired, allegedly for the same reason.
In addition to suing for wrongful dismissal, Blair sued Doug Ford personally for $5 million for defamation for comments he made on TV, which Blair argued damaged his reputation.
Ford’s legal team described Blair’s defamation suit as an attempt to “muzzle” the premier “from speaking as the duly elected Premier of Ontario”, arguing that Blair “used and abused” his position to go after Ford for personal gain.
The defence ultimately prevailed. Justice Edward Belobaba agreed that because Premier Ford’s comments related to a matter of public interest, they could not be censored by the courts. Blair’s defamation suit was dismissed in December 2020 under Ontario’s ANTI-SLAPP (Strategic Litigation Against Public Participation) legislation.
Then came the costs award.
An often forgotten risk of the litigation process, costs awards vindicate the winning party to a lawsuit by ordering the losing party to pay some, or in extraordinary cases if a better offer to settle was made, all of their lawyers’ fees and associated expenses of bringing or defending the lawsuit.
As the losing party to Ford’s ANTI-SLAPP motion (which carries uniquely severe costs penalties), Blair faced the dire prospect of presumptively being on the hook for Ford’s entire legal bill — which was more than $500,000.
This is a potent reminder that even outside the criminal law context, the courts serve as moral arbiters, doling out justice in the form of financial consequences to deter ill-advised litigation tactics. Courts balk where serious allegations of misconduct — such as Ford and Blair’s allegations against one another — are made maliciously, spuriously, or as a bad-faith litigation tactic, and/or are ultimately found to be untrue or unsupported by any evidence.
Because pleadings form part of the public record, frivolous allegations of misconduct have the potential to cause serious reputational harm in the court of public opinion, regardless of whether they are proven.
Accordingly, judges have the power to punish a party who makes such allegations by ordering them to pay a sizable portion of the other side’s legal bill, regardless of whether they are successful in the litigation on the whole. That’s why I put the request for extra costs for just that reason into my statements of defence whenever an employee suing an employer client of mine asks for punitive or other badfaith damages as a result of alleged employer misconduct.
I have noticed this concerning trend in employment litigation which contain serious allegations, including of fraud, discrimination, and cause for discharge, that are at best, speculative, and at worst, spurious.
These bad-faith fishing expeditions involve far more risks than potential rewards. Make no mistake. Few employee lawyers believe in them and include them only for leverage, so a mediator can work out a settlement with non-taxable general damages. But by doing so, these calumnious allegations will sit there for all time on the public record against the employer. These pleadings are made on behalf of employees who seldom understand the risks being taken on their behalf.
Fortunately for Blair, while his defamation suit shared enough technical features with SLAPP lawsuits to warrant dismissal under the legislation, it was brought in an entirely different spirit from the typical Slapp-style litigation that draws the ire of judges and legislators alike. Justice Belobaba found that Blair was “not a large and powerful entity that is using litigation to intimidate a smaller and more vulnerable opponent and silence their public expression,” and that he was, rather, “a genuinely aggrieved individual trying to vindicate what he reasonably believes is a bona fide defamation claim.”
Blair’s good faith in bringing his claim accordingly saved him from doling out upwards of $370,000.
Take Blair’s case as a reminder of just how hefty legal bills can become, and heed the court’s message of deterrence when considering making allegations attacking the other side’s character. Before using allegations or cause or discrimination as a pressure tactic, think long and hard about how much you would be willing to pay for that privilege. A figure of $130,000 may sound pretty steep, but if your opponent’s legal bill is anything like Ford’s, it is actually a steep discount — and one you may not be so lucky to be given. Got a question about employment law during COVID-19? Write to Howard at levitt@levittllp.com.
Howard Levitt is senior partner of LSCS Law, employment and labour lawyers. He practices employment law in eight provinces. He is the author of six books including the Law of Dismissal in Canada.
COURTS BALK WHERE SERIOUS ALLEGATIONS OF MISCONDUCT ARE MADE MALICIOUSLY …