Renowned criminal defense and civil rights lawyer and blawger, Norm Pattis, recently tweeted this amusing story about the failed “Crunchberry” lawsuit:
In Canada, the rules of court in provincial jurisdictions impose a “loser pays” rule: the party that loses a lawsuit (or motion) has to pay some (partial indemnity costs), most (substantial indemnity costs ) or, rarely all (full indemnity costs) of the opposing side. The “loser pays” rule of cost indemnification acts as a form of “checks and balances” in the civil justice system; it encourages reasonable settlement offers (with adverse cost consequences: e.g. Rule 49.10 of the Rules of Civil Procedure) and acts as a deterrent for frivolous or unmeritorious lawsuits. The inherent risk analysis for the client involves a two-step process: choosing to sue and then retaining and paying a lawyer to represent them in court (unless they cannot afford a lawyer and opt to be self-represented).
The downside, of course, is when the client is on the losing end and has to pay both his or her own costs (i.e. lawyer’s fees and disbursements), but also a proportion of the costs of the winning side. In today’s brief costs endorsement in 1117387 Ontario Inc. v. National Trust Company, 2010 ONCA 492, Justice Epstein of the Ontario Court of Appeal reminds civil lawyers that when it comes to litigation, there’s always a choice:
 In my view, the Receiver and National Trust are entitled to their reasonable and fair costs. I do not accept the submission of 1117387 Ontario Inc. and Mr. Ishac that they had no choice but to appeal due to the problem created by the application judge in approving the Receiver’s report and giving them the right to sue the Receiver. They had the alternative of simply not suing. [emphasis added]
As the saying goes: “A knowledgeable consumer is our best customer.”