Court of Appeal for Ontario

Date: 2018-09-19 Docket: C62310

Judges: Simmons, Roberts and Nordheimer JJ.A.

Between

Antonio Filice Plaintiff (Respondent)

and

Complex Services Inc. Defendant (Appellant)

Counsel

Frank Cesario, for the appellant

Margaret A. Hoy, for the respondent

Heard: January 19, 2018

On Appeal

On appeal from the judgment of Justice Antonio Skarica of the Superior Court of Justice, sitting without a jury, dated May 17, 2016, with reasons reported at 2016 ONSC 3256.

Costs Endorsement

[1] On July 10, 2018, this court released its decision allowing the appeal, and awarding costs of the appeal to the respondent in the amount of $10,000. At the same time, we invited the parties to make submissions on the issue of the appropriate disposition of the costs of the trial. We have now received and reviewed those submissions.

[2] The appellant submits that each side should bear their own costs of the trial because of the limited success enjoyed by the respondent and because of the operation of r. 76.13 of the Rules of Civil Procedure, R.R.O. 1990, c. C.43. Alternatively, the appellant submits that the respondent should be awarded the costs of the trial but reduced in amount to $20,000. The respondent submits that he should be entitled to the costs award made by the trial judge.

[3] After the trial judge announced his decision, he immediately requested submissions on costs. After hearing briefly on the subject, the trial judge awarded the respondent costs fixed at $82,600. This amount reflected a slight reduction from the amount requested by the respondent, largely as a result of the trial judge reducing the hourly rate claimed by counsel for the respondent. At the same time, the trial judge accepted the number of hours spent by respondent's counsel, indicating that the respondent, as plaintiff, had to spend more time than the defendant to prepare the greater number of witnesses he called. The trial judge also found that the matter was complex.

[4] The trial lasted for seven days. The respondent called seven witnesses, in addition to himself. The appellant called one witness. Much of the evidence was directed towards the punitive damages claim, not the constructive dismissal claim.

[5] The respondent, while unsuccessful in part on the appeal, was still ultimately successful on his constructive dismissal claim. The proceedings at trial, however, were significantly lengthened by the other issues raised by the respondent. The constructive dismissal claim itself would not have required the number of witnesses called nor the length that the trial took.

[6] Another salient fact is that the respondent's constructive dismissal claim, by itself, was a claim that fell within the simplified procedure under the Rules of Civil Procedure. However, the claim was much broader than that when the action was originally commenced. It was reduced in scope as a result of a successful summary judgment motion brought by the appellant that resulted in all of the claims, other than the constructive dismissal claim and a claim for punitive damages, being struck out. At that point, the respondent could have proceeded under the simplified procedure, as permitted by r. 76.02. The respondent did not take that step.

[7] Rule 76.13 stipulates that a plaintiff "shall not recover any costs" if a claim that properly falls within the simplified procedure is not pursued under Rule 76. While that consequence is mandatory, there is a discretion in the court to depart from it if the court considers it reasonable to do so. We do so here.

[8] As our reasons on the appeal indicate, this was an unusual employment law situation because of the gaming registration issue that gave rise to the issue of frustration of the contract of employment. Moreover, it is not clear from the record whether, by the time the respondent's other claims were struck out, the action had progressed to a point where there would have been any practical difference to proceeding under the simplified procedure. We also note that there is no indication that, prior to its costs submissions, the appellant ever objected to this matter proceeding under the ordinary procedure. Given all of those considerations, we are prepared to excuse the respondent's failure to proceed under the simplified procedure.

[9] In the end result, the respondent was successful in his constructive dismissal claim. He is, consequently, entitled to an award of costs for the trial. The amount of the costs must, however, be reduced from the amount awarded by the trial judge as a result of the factors that we have set out above.

[10] We therefore grant the respondent his costs of the trial. However, we reduce the amount of those costs to $40,000, inclusive of disbursements and HST, payable by the appellant.

Janet Simmons J.A.

L.B. Roberts J.A.

I.V.B. Nordheimer J.A.