More and more individuals involved in civil litigation are representing themselves in Court proceedings. Often the reason is cost – many individuals simply cannot afford to retain a lawyer to assist them – however litigants are occasionally unrepresented because their claim has no merit in law. In either case, there is no question that for the employer, defending a claim brought by an unrepresented litigant will be more expensive. A recent employment case from the BC Court of Appeal, Routkovskaia v. BC (Human Rights Tribunal), illustrates this point.
Ms. Routkovskaia (we’ll call her Ms. R for short) was hired as a marketing coordinator for Fireplace Products International Ltd. (“FPI”) in 2007. Not long after she started work for that company she discovered she was pregnant. Ms. R alleged that when she told FPI about her pregnancy, FPI raised concerns about her future ability as a single parent to perform her job duties. FPI’s version of the events was different – it said that in response to Ms. R’s inquiry about management positions, FPI told Ms. R that such positions required overtime and travel which might be difficult to manage as a single parent.
In February 2008 (approximately 6 months after Ms. R informed FPI that she was pregnant), FPI terminated Ms. R’s employment. It gave no specific reason for the termination; however, due to performance concerns, she was still on probation at the time of her termination. Ms. R brought a human rights complaint against FPI, alleging that her termination was motivated by discrimination (i.e. marital status and pregnancy), contrary to the BC Human Rights Code. The Human Rights Tribunal found little evidence of discrimination, even by Ms. R’s own account, and also noted the significant length of time between FPI learning of the pregnancy and Ms. R’s termination. As a result, the Tribunal granted FPI’s application to dismiss the complaint on the basis that it had no reasonable likelihood of success. Ms. R sought a reconsideration of the decision by the Tribunal but that application was also dismissed.
Ms. R then applied to the BC Supreme Court to have the Tribunal’s decision reviewed. After three days of hearing in 2011, the Court dismissed the application for judicial review, holding that the Tribunal’s decisions were not “patently unreasonable” (the applicable standard for judicial review). In dismissing Ms. R’s application, the Court held that FPI was entitled to its costs of the proceedings and that Ms. R’s claim of strained financial circumstances was not grounds to refuse to order costs in favour of the successful party.
Not about to give up despite three previous unfavourable rulings, Ms. R then appealed the decision of the Supreme Court to the BC Court of Appeal. In dismissing her appeal in March 2012, the Court found no error in the Supreme Court’s finding that the Tribunal’s decision was not patently unreasonable. On the issue of costs, the Court of Appeal found no error in the Supreme Court’s decision, although they did allow a small deduction for the cost of transcripts from the Supreme Court proceedings (despite the usual rule that the unsuccessful party is responsible for such costs).
All in all, FPI had to make the application (and attend a hearing) at the Tribunal, respond to an application for reconsideration, defend the BC Supreme Court application for judicial review (which took a further 3 days of hearing), and defend the appeal of that decision at the BC Court of Appeal (another hearing). From the time her employment was terminated, to the date of the BC Court of Appeal hearing, 4 years had elapsed. Although FPI was successful at every level, and even though it was awarded court costs for both the BC Supreme Court and BC Court of Appeal hearings, it is certain that FPI’s actual costs (both legal and company time) to defend this matter were far greater than any recovery of court costs that FPI may have been able to collect against Ms. R. That is because court ordered costs are based on a tariff set out in the rules of Court, and they typically amount to less than half of the actual cost of a lawyer.
We do not know if in this case the parties ever discussed possible settlement options, however, given the time and cost involved to defend the matter, FPI may now wish it had simply paid a sum to Ms. R at the outset to settle her complaint. One of the advantages of having lawyers represent both sides is they are able to objectively assess the facts and law, and then make reasonable assessments of likelihood of success and of the costs that will be incurred to prosecute or defend the claim. Employment disputes often involve parties who are emotionally invested in the outcome, so if these parties are also representing themselves, there is an increased chance that they will have unrealistic expectations of their chances of success or the amount of damages a court or tribunal is likely to award if they were successful. This in turn makes it difficult for these parties to engage in reasonable settlement discussions.
As this case illustrates, any litigation or claim made by an unrepresented former employee will be more expensive, time consuming and frustrating, irrespective of the merits of the claim – a point to bear in mind when considering the appropriate response to such claims.