“A lean compromise is better than a fat lawsuit”. – George Herbert
In Dalquee v Gandhi, 2022 ONSC 3521, the defendant brought a motion to strike the claim of the plaintiffs, without leave to amend. The relief was granted in part. The claim was struck. However, Justice Myers granted leave to the plaintiffs to deliver a fresh as amended statement of claim.
In reaching his decision, Justice Myers noted factors to consider when bringing a motion:
- Civil litigation is about money. It is expensive and fraught with risk.
- If the plaintiffs chose to draft the claim on their own, then they were penny wise but pound foolish. It is therefore reasonable for them to pay partial indemnity costs.
- However, once the plaintiffs retained counsel. The solution should have been to give plaintiff counsel time to amend the pleading and to pay some costs to the defendant for the time incurred to date on the motion. Instead, the defendant pushed forward, incurring $33,000 in costs.
- Spending more than the value of the claim on technical legal arguments is not an effective way to resolve the claim.
Even though the defendant won most of the motion, they are no further ahead than before the motion. The defendant incurred enormous legal fees. They dragged out the time for the lawsuit. And she gave the plaintiffs ammunition to make a better claim.
When determining whether to bring a motion, counsel should be mindful that courts are generally reluctant to dismiss actions on technical grounds.
(This article was originally posted on Slaw.ca – Canada’s largest online legal magazine.)