September 1, 2022
Not all possible steps in your lawsuit are worth the cost. Often, motions are brought for tactical reasons that turn out to be a bad investment. Motions to strike pleadings are a classic example.
Poor drafting can be expensive to fix, so is something you want to avoid. But what happens when it is the other side who serve a poorly drafted claim? What should you do then?
It is not often that the ideas for our articles come from things written by other people. But the article by Heather Douglas on slaw.ca entitled Factors to Consider When Bringing Your Next Civil Motion prompted us to share some of her insights and add a few of our own.
Douglas’ article is centred on a decision by Justice Myers of the Superior Court in Toronto. Justice Myers happens to be a very colourful writer, and most of his judgments are worth reading just for that reason. How often do you see a judge in a civil case using the word “cahoots”?
The motion before Justice Myers sought to strike a statement of claim without leave to amend, which would end the action. The plaintiffs had drafted the claim on their own, and it was not well drafted. However, the plaintiffs then hired a lawyer who would have been able to draft an amended claim which would do the job just fine. Instead of agreeing to this, the defendants write a motion to strike the record clean without leave to amend.
Justice Myers struck the existing statement of claim but did give the plaintiffs leave to amend.
Heather Douglas’ article builds upon comments made by justice Myers about the expense involved in civil litigation. They suggest that civil litigation is almost always just about money so that spending more than the value of the claim on a preliminary motion is usually not a good expense, nor is it a good way to encourage a cost effective and early settlement. Whenever you have a modest amount in issue, settlement is always going to be more cost effective than going to trial.
We generally agree with Ms. Douglas and Justice Myers, though in our experience, sometimes vindication is just as important as the money – a point not considered by either Justice Myers or Ms. Douglas. If your reasons for bringing the action, or defending the action, are not about money, then you have to consider carefully how much those non-monetary reasons are worth to you. Are you prepared to spend more than you can recover to clear your reputation or have a finding a fault against the other party?
In our experience, clients may start out thinking “I don’t care what it costs” until they realize how expensive the action will become. Some issues though really are worth the cost.
Settling a matter is often just smart. It is not a sign of weakness. It is often a sign of good legal advice and a client wise enough to follow that advice. Of course, not every matter should be settled and when we go to trial, we should do so vigorously. As we have written before, litigation is not a tea party.
The poor judgment of the defendants in bringing the motion before Justice Myers is further illustrated by a decision from the Ontario Court of Appeal released after Justice Myers decision. In that case, the Court of Appeal emphasized the importance of providing as much relief as possible from procedural defects. The objective is to secure the just determination of the real matters in dispute – in other words, claims should be decided on their merits, not because someone doesn’t know how to draft a claim.
- Proper drafting remains important
- Even if there is poor drafting, parties need to be careful not to spend more on procedure then they should
- Poor drafting will almost always be allowed to be fixed at least by one request to amend
- One of the things that lawyers are better at than self-represented parties is drafting – a reason you might want a lawyer even if you think you don’t need one
- Although vindication or other intangible rights may be worth more than money, that should not be a reason to overspend on litigation
- When confronted by a poorly drafted claim, you need sound advice to help you decide whether a motion to strike is a good strategy
HOW WEILERS LLP CAN HELP YOU
As we have said before, at Weilers LLP we believe that justice on the merits, quickly and cost effectively, is best for our clients. We have always been cost conscious. We have always believed that a quick resolution is often better for our clients than waiting in search of a more perfect truth, which is often elusive. We have always reserved tactics for their proper time and place, and oppose abuse. These are part of the “Proud Traditions” we have built up over 75 years as a firm. If you share these values and want lawyers who take justice and cost effectiveness seriously on your side, we just might be the lawyers for you.