Law Times

Page 4 April 3, 2017 • lAw Times www.lawtimesnews.com 'To be frank, Legal Aid clinics are already stretched for funding' Former clinic staff lawyer ordered to pay $40,000 BY ALEX ROBINSON Law Times A n Ontario judge has ordered a lawyer to pay more than $40,000 to his former employer, a legal aid clinic, Legal Aid On- tario and a lawyer retained by the employer after his wrongful dismissal claim was struck. In 2015, Carlos Bernal brought a claim against the Cen- tre for Spanish Speaking Peoples, a Toronto legal clinic, where he was employed as a staff lawyer from 2008 to 2013. His claim also named Legal Aid Ontario and other individuals in an expansive 80-page statement of claim. In Bernal v. The Centre for Spanish Speaking Peoples, Jus- tice Charles Hackland struck the entire claim, but he granted leave to amend some parts, say- ing Bernal needs to go "back to the drawing board." " . . . There is seldom any jus- tification for unsubstantiated allegations of harassment and professional misconduct and the Plaintiff has been much too free with such allegations," Hack- land wrote in his recent decision awarding costs. The judge awarded $2,922 in costs to LAO, $13,000 to the clin- ic and $20,000 to Carita Wong, the employment lawyer the clinic had retained and who was subse- quently sued by Bernal. Alex Van Kralingen, the law- yer representing the clinic, asked for costs of $28,801 on a partial indemnity rate or $39,684 on a substantial indemnity rate. Hackland, however, said these would be excessive. Van Kralingen says the costs the clinic was awarded do not ref lect the amount of work that went into dealing with Bernal's claim. What could have been dealt with at a simple pleadings mo- tion turned into a year of ex- tended deadlines and many case conferences, he says. "It is deeply affecting a com- munity hub and it's incredibly frustrating to watch them have to grind through all these legal costs because they've got finite resources they would like to be dedicating to their community instead of litigation. It's pro- foundly frustrating," he says. But the judge refused to pro- vide a larger sum saying it was not necessary for Van Kralingen to attend case management con- ferences in person, which led to costs in airfare and hotels. The judge also noted that while Bernal's behaviour was "less than professional," he had sought and received accommo- dations in the proceedings for medical reasons. Wong's counsel asked for costs awarded on a substantial indemnity basis and asked for $28,781, but Hackland awarded the $20,000 as the matter was still in the pleadings stage. "I agree with Ms. Wong's submission that the allegations against her were malicious and completely unsubstantiated," Hackland said. "The Plaintiff 's allegations against Ms. Wong were in my view, so outrageous and unjusti- fied as pleaded that costs should be awarded on a substantial in- demnity basis in order to signal the Court's displeasure with this behaviour and to deter it in the future." Wong, a lawyer representing her in the matter and Legal Aid Ontario all declined to com- ment as the matter is still under appeal. Patrizia Piccolo, an employ- ment lawyer who was not in- volved in the case, says that she thinks the court also got the costs decision right. "The main takeaway from this costs decision is the cau- tion that if a party makes base- less allegations against another party — especially where the allegations are inf lammatory towards a professional — the defending parties will not only pursue remedies in the litiga- tion proceedings but also in the costs assessment; and judges will penalize the offending party ac- cordingly," she says. In his statement of claim, Bernal claimed that he was mis- treated while he was working at the clinic and after he left on medical leave in 2010. He also claimed he was wrongfully terminated in 2013. He listed a litany of com- plaints about how he was treat- ed, including the clinic's decision not to appoint him as its director when he applied, deductions to his paycheque, as well as issues concerning his pay and benefits when he was on medical leave. He also said that he was badg- ered to return to work when he was on medical leave. Bernal contended that Wong had breached the Law Society's Rules of Professional Conduct — claims that Hackland found were baseless. He also claimed she breached his employment agreement with the clinic, but Hackland noted that she was not a party on that agreement and, therefore, could not have breached it. Bernal claimed $400,000 in damages. In his 2016 decision in the case, Hackland calls the state- ment of claim a "remarkable document" that is a "chrono- logical essay or narrative of the plaintiff 's relations with CSSP." Hackland refused to "embark on a paragraph by paragraph cri- tique" of the statement of claim, and struck the parts against LAO, Wong and other individ- uals named in the lawsuit. "Here we have a very lengthy, wandering and often difficult to understand narrative, at the end of which, is a list of 'relief ' which identifies some causes of action, but does not relate them to specific facts pleaded," Hack- land said. "The Statement of Claim can- not stand in its present form." Bernal is appealing parts of the decision to strike his claim to both the Divisional Court and the Court of Appeal. When reached, Bernal de- clined to comment, as there are still "contentious issues before the Court." Piccolo says the court's mes- sage in the decision striking the claim was "loud and clear." "If your pleadings aren't drafted appropriately, the court's going to toss it," she says. "This is a bit of a theme or lesson that we hear in employ- ment a lot, because what hap- pens in employment law cases, especially in wrongful dismiss- als, is there is feeling or need to tell the story of what happened in the termination and how we all got here and to add in a lot of detail." Piccolo says there are often claims in employment law that add too much detail that is not technically in accordance with the Rules of Civil Procedure. Litigants need to realize that not everything needs to go into a statement of claim, as the details will come out in other docu- mentation, she says. In wrongful dismissal cases, the pleadings need to be a con- cise statement of the material facts on which each of the plead- ed case of action is based, and nothing more, Piccolo adds. In Bernal's case, Piccolo says he was likely trying to convey more than what was necessary in the pleadings and did not do so in a clear way. "He went way overboard and the court said, 'Forget it. We're not going to try to fig- ure out what it is you're saying and weed through all this docu- mentation,'" says Piccolo. Van Kralingen says he hopes any court that makes a decision on cost awards in the future se- riously contemplates who the parties are. He added that in this partic- ular case, the more his client has to spend on litigation, the less it can spend on meeting the needs of the community they service. "To be frank, Legal Aid clin- ics are already stretched for funding," he says. "It's very sad that they have to defend these sorts of merit- less claims. So in the moments where they have to do those things, given who they are, my hope is that courts would be very sympathetic in terms of the award of costs." LT NEWS NEWS NEWS TECHNOLOGY LAW SPRING FORUM CHAIRED BY Kirsten Thompson, McCarthy Tétrault LLP Ian Thorburn, Solicitor, City of Toronto St. Andrew's Club & Conference Centre 150 King Street West 16th Floor, Toronto ON, M5H 1J9 MAY 18, 2017 | WWW.IT-CONFERENCE.CA 2017 JOIN US FOR THE SAVE 10% Early Bird Extended to April 18, 2017 Powered by Untitled-2 1 2017-03-28 1:07 PM It is deeply affecting a community hub and it's incredibly frustrating to watch them have to grind through all these legal costs because they've got finite resources they would like to be dedicating to their community instead of litigation. Alex Van Kralingen LegalFeeds.ca Daily Canadian legal news Get More Online

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