A recent Ontario costs decision deserves employer-side counsel’s attention, and it carries a sharper edge than the usual “we lost, we paid” story. It is a clear example of how enhanced costs for unreasonable litigation conduct can turn a manageable loss into an expensive one.

What happened in Adelman v. IBM Canada

In Adelman v. IBM Canada Limited, the employee won his wrongful dismissal trial, with Justice Parghi awarding $682,151 in damages. The court then ordered IBM to pay $215,000 in costs on a substantial indemnity basis, the elevated scale reserved for conduct a court views as unreasonable or in bad faith.

What elevated the award is the part worth studying.

Running a foreclosed argument

Roughly 40 per cent of the award reflected cancelled restricted stock units (RSUs) and stock options. IBM argued throughout the litigation that its equity-grant language extinguished the employee’s right to those amounts during the reasonable notice period.

But the Ontario Court of Appeal had already rejected that exact argument, on materially the same language, in Milwid v. IBM Canada Ltd., 2023 ONCA 702, a case IBM itself lost, defended by the same counsel. That ruling came down before discoveries in Adelman. At examinations for discovery in March 2024, the employee’s counsel raised Milwid directly and asked IBM to identify any difference between the two equity-grant terms. IBM maintained its position anyway.

The distinction that matters

This is the line every litigant should keep in view. Losing a genuinely contested issue is part of litigation, and clients are entitled to have real arguments advanced on their behalf. Running a position already foreclosed by binding appellate authority, on the same contractual language, is something else. It forces the opposing party to spend money defeating an argument that was never live, and courts increasingly treat that as a costs event.

How the principle applies in Alberta

Adelman and Milwid are Ontario decisions. They are persuasive rather than binding in Alberta. But Alberta courts have the same tools.

Rule 10.33 of the Alberta Rules of Court directs the court to weigh the conduct of the parties when fixing costs. The Court of King’s Bench has shown a willingness to depart from the Schedule C tariff toward elevated or solicitor-client costs where a party litigates unreasonably, as it did in Banovich v Banovic, 2025 ABKB 280. The Court of Appeal’s decisions in McAllister v Calgary (City), 2021 ABCA 25, and Barkwell v McDonald, 2023 ABCA 87, confirm that misconduct during the litigation process is a recognized basis for moving off the tariff.

For employers in Ontario or Alberta, the lesson is the same: litigation conduct has a price.

A balanced approach serves Calgary employers better

Getz Collins and Associates takes a balanced approach for its Calgary employer clients: assess the risk honestly, recognize where the law actually sits, and litigate strategically. That serves clients far better than treating every file as a war of attrition, and it avoids the exact exposure Adelman illustrates.

Enhanced costs against unreasonable litigants are a healthy development. This is an access-to-justice issue as much as a professionalism one. Resources consumed defending foreclosed arguments are resources unavailable to litigants with legitimate claims and to the courts that must hear them.

The principle for employers is straightforward. Fight the issues worth fighting. Concede the ones that are not. The bill for ignoring that line is getting larger.

This article is provided for general information and does not constitute legal advice. For guidance on a specific employment or litigation matter in Alberta, contact Getz Collins and Associates.