Bauer,
Another aspect to keep in mind regarding the Ad agency pursuing the legal avenue pertains to the Mandatory Mediation process. As outlined below, both parties would explain their position to a mediator who would then help them to arrive at a workable solution. Should that fail, then it's onto Pre-Trial, then Trial.
If you'd ready for an extremely comprehensive read on the Courts of Justice Act, click the 1st link. The 2nd link takes you to the Mediation Process I've copied below.
http://www.e-laws.gov.on.ca/html/regs/english/elaws_regs_900194_e.htm#sched24.1.01
http://www.attorneygeneral.jus.gov.on.ca/english/courts/manmed/notice.asp
What is mediation?
Mediation is one way for people to settle disputes or lawsuits outside of court. In mediation, a neutral third party - the mediator - helps the disputing parties look for a solution that works for them.
Mediators, unlike judges, do not decide cases or impose settlements. The mediator's role is to help the people involved in a dispute to communicate and negotiate with each other in a constructive manner, to gain a better understanding of the interests of all parties, and to find a resolution based on common understanding and mutual agreement.
The purpose of mediation is not to determine who wins and who loses, but to develop creative solutions to disputes in a way that is not possible at a trial.
What is the Ontario Mandatory Mediation Program?
The Ontario Mandatory Mediation Program started on January 4, 1999 in Toronto and Ottawa, and in Windsor on December 31, 2002. The Program is designed to help parties involved in civil litigation and estates matters attempt to settle their cases before they get to trial, thereby saving both time and money.
Many parties negotiate during the course of litigation. Over 90 percent of all lawsuits settle before getting to the trial stage. Under the Ontario Mandatory Mediation Program, cases are referred to a mediation session early in the litigation process to give parties an opportunity to discuss the issues in dispute. With the assistance of a trained mediator, the parties explore settlement options and may be able to avoid the pretrial and trial process.
Under Rule 24.1, civil actions that are subject to case management are referred to mandatory mediation. Case management is a system in which the court supervises cases and imposes strict timelines on their movement through the pretrial and trial process. Certain civil actions, such as family law cases, are excluded from mandatory mediation. Under Rule 75.1, contested estates, trusts and substitute decisions matters are referred to mandatory mediation.
What are the benefits of mediation?
Mediation often leads to resolutions that are tailored to the needs of all parties. Generally, the best solution to a problem is one worked out by the parties themselves.
Many people find mediation more satisfying than a trial because they play an active role in resolving their dispute, rather than having a solution determined by a judge.
The mediation process is informal and completely confidential. Parties in mediation may speak more openly than in court. Many people find mediation a more comfortable and constructive process than a trial.
In situations where the parties have an ongoing relationship, mediation is particularly helpful because it promotes cooperative problem-solving and improved communications.
How does Rule 24.1 work?
Civil, case-managed actions (except family cases) that are defended are referred to mediation. Cases may be exempted only if the parties obtain a court order.
The mediation is conducted by a private-sector mediator. Parties may agree to select a mediator from the Program's roster of mediators or one who is not on the roster. This decision must be made within 30 days after the first defence is filed.
If the parties cannot agree on a mediator, one will be appointed for them by the Local Mediation Coordinator, who is responsible for administering the Program.
The mediation must take place within 90 days after the first defence is filed, unless the court orders otherwise. However, parties in a standard track action may agree to postpone the mediation for an additional 60 days by filing a consent with the Local Mediation Coordinator.
At least 7 days before the mediation, parties must provide the mediator and the other parties to the lawsuit with a Statement of Issues, which identifies the issues in dispute and the parties' positions and interests. The pleadings and any documents of central importance to the case must be included.