Kashif Sher

Following a successful summary judgment motion dismissing the plaintiff’s claim and granting judgment on a counterclaim subject to later assessment of damages, the defendants sought costs on a full indemnity basis.

The court reviewed the defendants’ claimed hours and rates in light of the Civil Procedure Rules Committee grid, the indemnity principle, and the factors under Rule 57.01 and s.131 of the Courts of Justice Act.

The court found the time expended and rates claimed to be reasonable and determined that the litigation conduct of the plaintiff reflected tactical litigation intended to harm a competitor.

While recognizing the discretion to award costs against corporate principals, the court declined to pierce the corporate veil due to insufficient evidentiary foundation.

Costs of $58,878.22 inclusive of HST and disbursements were awarded to the defendants.

The defendants brought a motion for summary judgment to dismiss the plaintiff employer's claims for breach of a non-solicitation agreement, breach of fiduciary duty, duty of fidelity, negligence, and 'time theft', and to grant the defendant employee's counterclaim for constructive dismissal.

The court dismissed all of the plaintiff's claims, finding the non-solicitation clause void and expired, the employee not to be a fiduciary, and the remaining claims without merit.

The court granted summary judgment on liability for the employee's constructive dismissal counterclaim, finding the employer created a toxic work environment and repudiated the employment contract, and directed a trial solely on the quantum of damages.