Time To Eliminate Bogus Lawsuits -- Summary Judgment Must Be Strengthened

The Tim's Toonie case is an example of a lawsuit gone insane. Sadly all lawyers have seen this type of problem before -- law and madness seem to be tied together sometimes.

The case shows why we must have tighter controls on what goes forward in Court -- truly merit less cases must be dismissed, with finality, early.

In this case the plaintiff was fired for stealing a toonie. She was then charged with theft under $5,000 but the charges were dismissed (perhaps illustrating the Court's time ought not to be wasted on trifles).

Now, it could have been argued that the termination was wrongful because there was no theft or, perhaps, the theft did not go to the root of the employment relationship. Such a claim, if successful, might have, with enhanced damages for the 'wrongful' nature of the termination (Wallace damages), been worth as much as, say, $25,000. (To be clear, my sense is the theft might well have been established to a balance of probabilities and cause found -- hence no damages).

A claim for malicious prosecution on the face of things seems absurd but if successful might have gotten $5,000. Maybe.

But here damages of more than $23 million were first sought – the amount claimed is now down to $10 million. This is beyond absurd -- it is delusional.

And the case of a "stolen toonie" has resulted in hundreds of thousands of dollars in legal fees none of which can ever be recovered by Tim Hortons because the plaintiff has no money (quaere how is she paying her lawyer? Or is he acting for free?).

Anyway, the case failed and the plaintiff turned to the Ontario Court of Appeal.

The appeal was scheduled for today but the absurd became surreal. Asking for an adjournment, the plaintiff's lawyer argued that he was ill and couldn't proceed (that's fair enough -- an adjournment for illness is totally proper).

But this claim of illness was after he had asked for an adjournment earlier in the day and was denied.

Part of his argument was based on the fact that a judge on the panel had earlier referred to him and his co-counsel as "you people" (an unfortunate usage but certainly not racist -- more likely reference was being made to pettifoggers -- but the judge would have been better to have kept silent).

The lawyer, who is black, said he was offended by that reference.

After meeting behind closed doors, the panel judge said he was "personally offended" by the suggestion of racial bias but in the interests of the case, decided to make way for a replacement.

The Court of Appeal will now hear the case on Friday morning.

James Morton
1100 - 5255 Yonge Street
Toronto, Ontario
M2N 6P4