Legal Blog

Litigant

Some individuals and corporations are more litigious than others. However, sometimes people take litigation to extremes. In the past five to ten years, the name of John Susin (“Susin”) has frequently popped up in the law reports. The latest case is Susin v. Goodreau, a 2005 decision of the Ontario Court of Appeal.

It is no wonder that the latest case went to the Court of Appeal. Susin’s appeal reminds us of a litigation lawyer in the mid-20^th century who was arguing one appeal before a panel of the Ontario Court of Appeal in the morning and a second appeal before the same panel in the afternoon. At the commencement of the afternoon case, one of the judges asked him, with a touch of sarcasm, whether he appealed all of his cases. He replied, no my Lord, only those that I lose.

Susin History 

We did a quick search of a case law database and determined the following:

a)   There were 80 hits (i.e. there were 80 reported decisions involving Susin). Of course, one case could engender more than one hit (e.g. one case may have a decision on a motion, at trial, on appeal etc.).

b)   The first 18 hits involved 9 different actions. We then grew weary and did not review the remaining 62 hits.

c)   Many of the actions related to matters that occurred in the 1980s and even the 1970s.

d)   Susin often acted for himself or his corporations.

e)   His success rate did not seem to be very high.

Acting for Himself 

When a litigant acts for himself or his corporation, everybody suffers. Because the litigant is not trained to do the job properly, the litigant may suffer due to an adverse result; the opposing party suffers because the pre-trial procedures, the trial, and the appeal are far longer, complicated, and expensive than they otherwise would have been with competent lawyers representing all parties.

As an example of the court’s frustration, the court stated at the outset: “I regret to say that I have found Mr. Susin’s factums to be prolix, repetitious and confusing. I do not say this in order to “scold” Mr. Susin, as I appreciate that he is not a lawyer, but merely to indicate that I have found it extremely difficult to ascertain exactly what it is that Mr. Susin is attempting to submit on a number of points. Mr. Susin has a tendency to refer to portions of the evidence in no particular order. The result is confusion. I have read and reread Mr. Susin’s submissions. Unfortunately, the rereading has not been any more enlightening.”

The trial of this matter took 43 days.

Trial Decision 

Susin persuaded the general to tender the construction of a marina. Susin was to have run the job, be paid a weekly salary, and then split the project’s profit with the general. The general retained a sub to perform the dredging portion at $3.75/cubic metre. The sub had some problems on the job and, unbeknownst to the general, contracted with Susin to perform part of the dredging work at $1.75/cubic metre. Ultimately, the sub walked, complaining about non-payment; the general told Susin to finish the dredging work, but did not specify the remuneration. All the parties ultimately claimed against each other. Susin commenced six actions, including personal actions against the principals of the general and the sub. All of the various actions were ultimately consolidated into one action.

The trial judge dismissed the personal actions and held that the general should pay the sub $21,000 for the work that the sub actually performed. He ordered the general to pay Susin $37,000 (i.e. $3.75/cubic metre) for the dredging work that Susin had performed. He ordered an accounting hearing to determine the profits that the general may or may not have earned on the project. The general and Susin appealed.

Appeal 

Although it was not fully apparent from the reasons for decision, it seems that Susin had claimed $178,000 against the general. Conversely, the general had wanted to pay Susin for the dredging work that he had performed at only $1.75/cubic metre, the same amount that Susin was to have received from the sub. The trial judge had allowed Susin payment at $3.75/cubic metre, the same amount that the general had been prepared to pay the sub. The Court of Appeal dismissed both their appeals.

The trial judge had awarded substantial indemnity costs to the sub against Susin. The court held that this was not one of those special cases to warrant the higher scale of costs. Therefore, Susin had to pay the sub’s costs at the partial indemnity rate. We suspect that these costs will far exceed anything that Susin is to receive from the general.

The court agreed that there should still be an accounting, which is like a separate trial, regarding Susin’s claim for half of the profits. Unfortunately for the general, the nightmare continues.