The story of the creation of “Incredibull”
A quick comment on, Hearing Clinic (Niagara Falls) Inc. v 866073 Ontario Ltd. 2014 ONSC 5831
Readers of Canadian law are blessed with the literary skills of Justice Quinn. Not only are his decisions legally interesting, they offer a literary flair that encourages further reading of an otherwise difficult subject.
The decision of Hearing Clinic (Niagara Falls) Inc. v 866073 Ontario Ltd. 2014 ONSC 5831, is another masterpiece; however, reading it can be quite a challenge since it comes in at an astonishing 1,500 paragraphs – or about 230 full pages.
The case touches on numerous topics (apart from the merits of the case itself) which may be of interest to the legal profession and public. In particular, Justice Quinn provides a rare look at excerpts of cross-examination. Specific questions and answers are provided from a cross-examination that Justice Quinn notes may be some of the most effective he’s ever seen:
“He entered the box as an articulate professional with impressive academic credentials, displaying what appeared to be a sound and comprehensive recollection of events. When he stepped down, after more than 14 days of withering cross-examination, he was noticeably dazed, his credibility was reduced to existential confetti and he even appeared to be physically shorter than when the trial began”.
The scope of this trial is incredible. A trial about the sale of hearing aid clinics turned into an epic, complex tale that make’s Homer’s Odyssey seem like a Dr. Seuss book.
The trial lasted 72 days (over three years), included thousands of pages of documents and “closing argument was in writing: an eye-glazing, bum-numbing, disc-herniating total of 662 pages (single spaced, medium sided font and heavily footnoted).”
At the end, the plaintiff was partially successful and was awarded damages of….$423.20. In concluding, Justice Quinn stated that the plaintiff “has taken everyone on a hideously time-consuming and obscenely expensive journey down his private yellow brick road to the outskirts of the Emerald City where, it appears, he has a residence. It was not a worthwhile adventure.”
As fantastic as this case is (it included the creation of a new word – incredibull), the inevitable costs decision is highly anticipated and will be framed around these suggestions by Justice Quinn:
1497 I will mention a few costs factors to consider, for the assistance of counsel in their negotiations: (1) Success was divided, although only modestly so; (2) This might be a case where costs should be awarded or refused on an issue-by-issue basis; (3) Is there “conduct of any party that tended to shorten or to lengthen unnecessarily the duration of the proceeding, “as contemplated by clause 57.01(1)(e) of the Rules of Civil Procedure? (4) The case was marked by unproved allegations of fraud and other misconduct.