Miguel D. Mangalindan

The moving parties brought a motion for leave to appeal the order of Pollak J. dated May 10, 2021.

The Divisional Court dismissed the motion for leave to appeal and awarded costs to the responding party fixed at $5,000.

The defendant moved to dismiss the plaintiff's wrongful dismissal action, arguing the court lacked jurisdiction because the plaintiff was an employee covered by a collective agreement and the dispute should be resolved by a labour arbitrator.

The plaintiff argued he was misclassified as an independent contractor and his claim was rooted in a pre-employment contract.

The court dismissed the motion, finding it premature as the existence of a pre-employment agreement is a disputed factual issue that must be determined at trial, not on a pleadings motion.

The plaintiff brought a motion to strike the defendant's jury notice, which was served four and a half months after the close of pleadings.

The defendant argued that the plaintiff had acquiesced to the late jury notice by not formally objecting and by including it in the trial record.

The court found that the plaintiff had objected to the late notice via email and that including it in the trial record was an error of caution, not an admission.

Given the defendant's delay in seeking leave to file a late jury notice and the prejudice to the plaintiff, the court struck the jury notice and ordered the matter to proceed as a non-jury trial.

The plaintiff claimed damages for early termination of a fixed-term employment contract under simplified procedures.

The action settled, with costs remaining in dispute.

The plaintiff sought partial indemnity costs of $24,615.80, while the defendant proposed $5,000 plus disbursements, arguing for restraint in simplified procedure cases and criticizing the plaintiff's conduct and excessive time spent.

The court considered factors under Rule 57.01(1), the simplified procedure context, the amount recovered, and the defendant's reasonable expectations, ultimately fixing the plaintiff's total costs at $14,855.99.

The defendants, having successfully obtained a stay of action based on an arbitration clause, sought partial and substantial indemnity costs totaling $68,449.55.

The plaintiff conceded entitlement to costs but argued the amount was excessive.

The court applied the principle that costs should be fair and reasonable for the unsuccessful party, not merely the actual costs incurred.

While acknowledging the importance of the matter to the defendants and the plaintiff's conduct contributing to increased costs, the court found the claimed hours excessive for a two-hour motion.

Considering an offer to settle, the court awarded costs at the higher end of a reasonable range, fixing them at $40,000.00.