Stephen A. Bernofsky

Following a wrongful dismissal action in which the plaintiff claimed approximately $100,000 in damages, the defendant sought costs of roughly $99,163 on a full indemnity basis or $61,425 on a partial indemnity basis.

The court considered the factors under Rule 57 of the Rules of Civil Procedure and rejected the request for full indemnity costs.

The court emphasized proportionality between the amount in dispute and the costs reasonably contemplated in such an action.

Finding the hours and rates claimed excessive given that the primary compensatory claim was approximately $32,000, the court reduced the award substantially.

Costs were fixed at $25,000 inclusive of HST.

The plaintiff commenced a wrongful dismissal action alleging he had been terminated without cause and seeking damages in lieu of notice, aggravated damages, and punitive damages.

The employer asserted just cause based on cumulative misconduct, including insubordination, performance deficiencies, refusal to follow safety instructions, and conduct undermining workplace relationships.

The court applied the contextual approach to just cause from McKinley v. BC Tel and considered whether the cumulative incidents demonstrated misconduct incompatible with the employment relationship.

It found that the employer had issued numerous warnings and that the employee’s conduct, including refusal to comply with safety directives and actions damaging workplace relations, justified dismissal.

The court concluded that the employer had just cause to terminate and dismissed the action.

Following a successful appeal, the appellants sought costs of $42,000 and $15,000 to $22,500 respectively.

The respondents argued the claims were excessive.

The Divisional Court considered the complexity of the Human Rights Code issues and the unusual circumstance of the Tribunal accidentally losing the record, which increased preparation time.

However, noting the similarity of interests between the two appellants and the principle that costs must be fair and reasonable to the losing party, the court awarded costs on a partial indemnity scale of $10,000 to each appellant.