CITATION: Dynamic Tire Inc. v. Borrelli, 2016 ONSC 1526
DIVISIONAL COURT FILE NO.: 659/15 DATE: 20160302
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
SACHS, THORBURN AND LEMAY JJ.
BETWEEN:
DYNAMIC TIRE INC.
Appellant/Defendant
– and –
DOMENICO BORRELLI
Respondent/Plaintiff
Ryan Wozniak, for the Appellant/Defendant
Justin Baichoo, Respondent/Plaintiff
HEARD at Toronto: March 2, 2016
LEMAY J. (ORALLY)
[1] This is an appeal of a costs award issued by Mullins J. on March 5, 2014. It comes to this Court as a result of a decision of Gilmore J. granting leave to appeal on September 9, 2014. For the reasons that follow, the appeal is dismissed.
[2] The underlying case is a wrongful dismissal claim by Mr. Borrelli. He was dismissed on October 7, 2011 and cause was not alleged. At the time of his dismissal, Dynamic Tire, his former employer, offered him up to sixteen months pay in lieu of notice. If he found another job he was entitled to a “balloon” payment of half of the remaining notice. Other offers were made that, if accepted at the time, would have resulted in Mr. Borrelli obtaining a greater amount of reasonable notice than he ultimately received.
[3] Mr. Borrelli did not accept any of these offers. Instead, he commenced this lawsuit in January 2012. The defendant continued to pay the plaintiff his salary until approximately the end of April 2012. In addition, the defendant served a Rule 49 offer on Mr. Borrelli for an additional five (5) months and two (2) weeks of notice. If accepted, this offer would have resulted in Mr. Borrelli receiving a total notice of approximately a year. On the record that we have, it was the only offer that the plaintiff could have accepted after May 17, 2012.
[4] This litigation proceeded by way of a summary judgment motion before Mullins J. on September 27, 2013. In reasons released on October 28, 2013, Mullins J. dismissed Mr. Borrelli’s claims for damages for mental distress and bad faith. She determined that Mr. Borrelli should be entitled to a payment in lieu of notice of sixteen (16) months, together with commissions, vacation pay and other benefits.
[5] The parties then filed costs submissions, and Mullins J. issued a costs endorsement on March 5, 2014. After setting out a detailed review of each party’s costs submissions, Mullins J. awarded the plaintiff the sum of $6,000 plus HST in costs. The reasons for her decision are set out in para. 21 of her decision.
The claims for costs here made arise in the unusual circumstances of a plaintiff bring [sic] an end to a somewhat ill-conceived action by way of his own motion for summary judgment. The primary issue was the notice period to which the plaintiff was entitled upon termination of his employment. The defendant employer’s position on this issue was reasonable, exemplary even. The facts relevant to that issue were not complex, nor particularly disputed. The judgment given will, as best I can discern, oblige the defendant to pay such funds as are necessary to bridge the gap between what it has paid and what is due in accordance with the judgment. That the defendant offered to pay the plaintiff as much and more that he has recovered under judgment, before litigation was commenced is, in my view, relevant to whether and in what quantum the plaintiff should recover costs, or whether, and in what quantum, the defendant should have costs. The costs claimed by both sides are not dramatically different. This suggests they fell, more or less, within reasonable expectations. Having regard to all the circumstances, the plaintiff shall recover costs of the motion for summary judgment which I fix at $6,000, plus applicable HST.
[6] This is the conclusory portion of the reasons offered by the motions judge for her costs decision which included a detailed summary of the arguments advanced by counsel. Leave to appeal was given on the basis that these reasons were insufficient, and were inconsistent with the findings of fact that she made both on the motion itself and in her costs endorsement.
[7] With respect to the sufficiency and consistency of the motions judge’s reasons, these reasons must be read as a whole and in context. When this is done it is clear that the motions judge was aware of and considered the following:
(i) None of the defendant’s offers triggered the costs consequences of Rule 49. As a result, there is no requirement to award the defendants the costs of this action.
(ii) The plaintiff was successful in obtaining some relief on the summary judgment motion that he could not have obtained by accepting the defendant’s May 17, 2012 offer. This was the only offer that the plaintiff could have accepted at the time that the motion started. In fact, it was the only offer that the plaintiff could have accepted at any time after May 17, 2012.
(iii) However, the plaintiff acted unreasonably in not accepting the pre-litigation offer that was made to him. Those offers, if accepted, would have given the plaintiff more than he obtained on the motion. This is a factor that, in my view, reasonably results in a significant reduction in the amount of costs that should be awarded to the plaintiff.
(iv) Both sides sought significant costs awards at the conclusion of the summary judgment motion. The plaintiff sought substantial indemnity costs in the amount of $28,660.36, and partial indemnity costs in the sum of $20,334.97. The defendant sought partial indemnity costs in the sum of $27,645.81 and substantial indemnity costs in the sum of $35,808.33. In light of this, the costs award to the plaintiff of $6,000 plus HST was a nominal amount that reasonably reflected a balancing of the various contextual factors that I have set out above.
[8] Costs decisions attract considerable deference from a reviewing Court. A reviewing Court will not interfere with a lower Court’s costs determination unless it is plainly wrong, or if the trial judge has made an error in principle. This principle is set out in Boucher v. Public Accountants Council (Ontario), (2003) 2004 14579 (ON CA), 71 O.R. (3d) 291, at para. 20, where the Court quotes Hamilton v. Open Window Bakery Ltd., [2004] S.C.R. 303 at para. 27.
[9] The judge’s decision discloses no error in principle and far from being plainly wrong was a reasonable disposition given the circumstances of this case. For these reasons, the appeal is dismissed.
SACHS J.
COSTS
[10] I have endorsed the Appeal Book, “For reasons given orally by LeMay J. this appeal is dismissed. The respondent is entitled to his costs of this appeal and the leave to appeal motion, which we fix in the amount of $5,600, all inclusive.”
___________________________ LEMAY J.
SACHS J.
THORBURN J.
Date of Reasons for Judgment: March 2, 2016
Date of Release: March 4, 2016
CITATION: Dynamic Tire Inc. v. Borrelli, 2016 ONSC 1526
DIVISIONAL COURT FILE NO.: 659/15 DATE: 20160302
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
SACHS, THORBURN AND LEMAY JJ.
BETWEEN:
DYNAMIC TIRE INC.
Appellant/Defendant
– and –
DOMENICO BORRELLI
Respondent/Plaintiff
ORAL REASONS FOR JUDGMENT
LEMAY J.
Date of Reasons for Judgment: March 2, 2016
Date of Release: March 4, 2016