Wednesday 1 October 2014

Offers to settle claims                        

For many years, I represented clients in civil courts in Ontario and served as one of the consultants conducting a study on the procedures in Small Claims Courts for the government. 

In a great many civil cases before the courts, offers of settlement by the defendants are made. Now when the plaintiffs are dealing with such offers, they have to be prepared to take a certain amount of a loss. For example if you as a plaintiff sued someone for $50,00o and the defendant made an offer of settlement for $45,000, you have to decide if you are prepared to take a loss of $5000 plus your court costs and your lawyer’s fees if you hired one to represent you.  Your lawyer’s fee could be as high as $2,000. And if it is, your net settlement would only be approximately $43,000. You can make a counter offer but if the defendant doesn’t wish to settle the case for the amount you proposed, the trial will continue and if you lose your case, you will not only be out the $45,000 that the defendant offered to pay you, but you will also be stuck with the defendant’s  court costs and lawyer’s fee along with your own lawyer’s fee and court costs.

What follows in this article is an interesting case involving an offer to settle.

Late in 1997, police officers in Nishnawbe-Aski, Ontario answered Ms. Magiskan’s call for help, arrested her fiancé and charged him with assaulting her. When she interfered with their attempts to arrest him, Ms. Magiskan, who was then a police officer with the same police force, was warned not to interfere. When she ignored the warning, she was arrested. She was charged with assaulting and obstructing a peace officer.

The plaintiff’s fiancé ultimately pleaded guilty to assaulting her even though Ms. Magiskan denied that he had done so. Ms. Magiskan was found guilty of assault and obstruction at trial but was acquitted on appeal in October, 2003.

Later she was dismissed from the Nishnawbe-Aski Police Service so she sought judicial review of the decision of the Chief of Police of NAPS to terminate her employment on July 14, 1998. The Ontario Provincial Police and the Ministry submitted that her application should be dismissed for “extreme, unjustified” delay.  A delay of six months or more in commencing an application, or 12 months in the perfection of an application has been held to be serious enough to warrant dismissal of an application for judicial review.  For this reason, her application was dismissed. She appealed to the Divisional Court for a reversal of the decision of the Superior Court. The defendants argued that waiting nine years for a review in the Divisional Court was far too long.

Ms. Magiskan bungled her civil trial from the beginning. There were far too many delays that unnecessarily lengthened the proceeding. The statement of claim was issued in July, 2004 and now six years later, she wanted another chance at the kick at the can so to speak.

Years ago, a woman sued the Toronto Star, its reporter, the Ottawa Citizen and me also for defamation of character. She had no real case to pursue against us but her case was dismissed before trial for the same reasons Ms. Magiskan case was dismissed.

Ms. Magiskan had sued the police officers involved in her arrest along with the Police Services Board for general damages in the amount of $100,000 for assault, unlawful arrest and detention; for damages for breach of her Charter rights; for punitive damages; as well as special damages in the amount of $2,217.50 for repairs to her vehicle. The case finally came to a hearing in the Divisional court almost fourteen years after the events complained of. Her claim was dismissed. Now the matter of costs came up.

Her case was moderately complex. Initially, multiple defendants were sued. By the time of trial, there were only three left. The plaintiff abandoned her claim for negligence at trial. The issues remaining included a consideration of the powers of arrest available to police officers; what constitutes reasonable grounds for arrest; use of force principles measured against the actions of the officers; and the plaintiff’s response to their use of force. As well, the parties argued limitations issues. Finally, the court was required to assess general, punitive and Charter damages in accordance with various previous court decisions as claimed by the plaintiff.

The defendants served on her an offer to settle in September, 2007, proposing that her claim be dismissed without costs if the offer was accepted before October 15, 2007. In other words, if she withdrew her claim, the defendants wouldn’t seek their costs against her. The offer to settle also contained alternative costs dispositions contingent upon acceptance of the offer at various stages in the proceedings. The offer was open for acceptance at the commencement of trial. Their offer of settlement was not accepted by her. Fortunately for her, the defendants were not seeking substantial indemnity costs from the date of the offer but they were asking for some costs nevertheless.

This case involved a determination of when a member of the public is entitled to interfere with a police arrest. From the perspective of police operations, this issue is critical. The police argued that they should not have to weigh their actions in the midst of an arrest to assess whether a third party is justified in intervening.

There can be exceptions. For example, many years ago, a group of friends in Hamilton, Ontario had a quiet party in one of the friend’s home. Two police officers suspected that something might be wrong because a car belonging to one of the men was known to the officers as a convicted drug dealer so they decided to go into the house. They forced their way into the house and started harassing the so-called drug dealer. He and his friends pushed the officers out of the house and one of the officers fell down the steps and broke his neck. He died instantly.

The men were charged with manslaughter. The charges against them were dismissed because it was the officers who broke the law and not the men in the house. The officers had entered the house without a warrant and they had no justifiable reason to believe that a crime was being committed in the house. Further, the judge said that the men in the house had the right to forcibly remove the officers who were in fact trespassing as soon as they forced their way into the house.  Further, the fall was accidental.                     

Now this raises a very interesting question. If both Ms. Magiskan’s husband and she denied there had been an assault, and the police still wanted to arrest her husband, would she be justified in trying to stop them?         

A number of years ago, the governor of a college asked me to represent him in a criminal court. He was charged with assaulting his wife. He was acquitted when his wife testified that there was no assault. She said that when she called 9i11, she thought her husband had slapped her in the face but within seconds, she realized that while she was attempting to get into the bathroom where he was, her husband was trying to close the door and his hand slipped off the door and struck her in her face. Realizing that it was an accident, she called 911 back and said she made a mistake when she made the first call.  Now the police have to come anyway since she could have been forced to make that second call. When they arrived, she told them what had really happened. The officers didn’t care and arrested my client and charged him with common assault. As I said earlier, this case was dismissed.

My client asked me to prepare a statement of claim against the arresting officers for 5,000. It never went to trial because the police department offered to settle for $2,000 which my client agreed to accept. He would have been justified in resisting his arrest since the police had no justifiable reason to arrest him since his wife had told them that the slap was caused when her husband’s hand slipped off the door while trying to close the door. The police at that moment were trespassing when they refused to leave and were in effect, no longer having the legal right to arrest my client.

Now back to the matter of the defendant’s costs that they wanted Ms. Magiskan to pay them for not accepting the offer and prolonging the civil case against them. 

She told the three judges in the Divisional Court that she was not aware of the fact that her original judicial review application was dismissed (in July 2003) until early in 2004 when she consulted her present counsel.  His advice was that judicial review was unavailable to her in relation to her wrongful dismissal proceeding which was started in July 2004 as an alternative.  Apparently she did not diligently pursue that action because it had not even proceeded to discoveries when it was dismissed more than three years later.  The judges decided that her explanations for the delay to be unsatisfactory.  Furthermore, the delay of thirteen months in perfecting her application after it was first filed is not satisfactorily explained by her.

It is incumbent on all plaintiffs that they proceed as quickly as they can in their claims so that their defendants are not waiting for their trials for an inordinate length of time.

The defendants claimed costs of a ten-day trial on a partial indemnity scale, at $154,623.78. (lawyer’s fees) Of that amount, $53,278.03 was for disbursements. The actual bill for the defence of the claim was $176,000. She was ordered to pay the defendants $154,623.78, inclusive of fees, disbursements and GST (taxes).  Suing someone can be costly, especially when you have to not only pay your own costs but also pay the costs of who you sued if you lose.

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