Court File and Parties

Court File No.: 09-0849
Date: 2012-03-16
Superior Court of Justice - Ontario

RE: Robert Emes, Plaintiff

AND:
Honda of Canada Mfg., A Division of Honda Canada Inc., Defendant

Before: THE HON. MADAM JUSTICE S.E. HEALEY

Counsel:
M. Lemieux, Counsel for the Plaintiff/Moving Party

R. Bandhu, Counsel for the Defendant Honda of Canada Mfg., A Division of Honda Canada Inc.

Heard: March 13, 2012

Endorsement on Motion

[1] The plaintiff moves for judgment in the terms of an accepted settlement pursuant to Rule 48.09 of the Rules of Civil Procedure, with respect to his wrongful dismissal action (09-0849) and his action for disability benefits (09-0918). These are companion motions seeking identical relief.

[2] Payment in the full amount of the settlement having been received on March 6, 2012, the contest today is over the costs of these motions. Both counsel seek costs on behalf of their clients.

[3] The evidence shows that the parties entered into an agreement in principle on or about December 19, 2011, subject to reaching agreement on how the settlement funds were to be paid and the signing of releases. The amount of the settlement was confirmed in writing by plaintiff's counsel in correspondence dated December 29, 2011.

[4] The evidence shows that the defendant’s counsel had some difficulties co-ordinating his contact with Sun Life to obtain instructions (Sun Life being his other client in the disability benefits action), and that plaintiff’s counsel was kept informed of the difficulties.

[5] Draft Minutes of Settlement were delivered by the defendant’s counsel on February 3 via e-mail. On February 6 plaintiff’s counsel sought amendments to the Minutes and requested that the cheques be delivered immediately, to be held in escrow pending delivery of signed Minutes of Settlement. Defendant’s counsel revised the Minutes and returned them the following day, noting that the delivery of cheques would not be made until plaintiff’s counsel provided his undertaking with respect to fees as required by paragraph 3 of the Minutes. This undertaking was framed as follows:

Payment of legal fees to Mr. Emes’ solicitors is further conditional upon the receipt by the solicitors for HCM and Sun Life of a written undertaking from Littlejohn Barristers Professional Corporation indicating that Mr. Emes will not be rendered an account for legal fees and disbursements, in respect of both actions, which is less than $40,344.80.

[6] On February 14 plaintiff's counsel delivered signed Minutes of Settlement, a signed release, an irrevocable direction, Notice of Discontinuance and signed consents, but not the solicitor’s undertaking.

[7] On February 16 and February 23 defendant’s counsel corresponded with plaintiff’s counsel to remind him that the solicitor’s undertaking remained outstanding, which plaintiff’s counsel delivered on February 23.

[8] Four business days later, on February 29, that portion of the settlement funds payable by Honda was delivered to plaintiff’s counsel.

[9] On March 1 plaintiff’s counsel indicated that he had instructions to bring a motion to enforce settlement, noting that motion materials would be delivered that evening. The e-mail sent by plaintiff's counsel stated that "hopefully all funds will have been received by that time (the return date for the motion) and the motions will not be necessary”.

[10] On March 2 defendant’s counsel advised that Sun Life's cheque would be available for pick up on March 5, or could be sent by courier to arrive March 6. Plaintiff’s counsel opted for March 6.

[11] Accordingly, all settlement funds were in the hands of plaintiff’s counsel seven business days after he had satisfied the condition of providing his undertaking.

[12] Two days later, plaintiff’s counsel delivered a motion confirmation form indicating that costs were the only remaining issue to be argued. In an attempt at settlement the defendant’s counsel offered $750, which included the cost of similar motions (Gill v. Honda; Gill v. Sun Life Assurance Company of Canada et al., court file nos. 08-1440 and 08-1417). Plaintiff’s counsel demanded $1,500 for this file alone. The position advanced by plaintiff's counsel at the hearing was that the plaintiff was seeking $750.

[13] The defendant’s counsel submits that this motion was unnecessary and precipitous, particularly given that there was no date by which payment was to be made in the Minutes of Settlement. Defendant’s counsel seeks costs of preparation of responding material and his attendance in the amount of $3,600.

[14] Plaintiff's counsel argues that the lengthy delay between December 19, 2011 and the date of delivery of approved Minutes of Settlement (February 7) is an unconsciously lengthy period of delay, and that the additional 28 days for delivery of full payment is likewise egregious. He argued that it was necessary to prepare motion material on March 1 in order to compel payment of the unpaid amounts from Sun Life.

[15] Weighing all of the above evidence and arguments, this court finds that this motion was precipitous. Between February 23 and February 29 plaintiff’s counsel gave no indication that it was seeking instructions for such a motion. It persevered in preparing such material even after receiving Honda's portion of the settlement funds the previous day. Plaintiff’s counsel did not request information from defendant’s counsel as to when Sun Life's portion would be made available prior to drafting his client’s materials. Given that plaintiff’s counsel had only satisfied his own obligations on February 23, receiving payment in full under the Minutes of Settlement only 8 business days later is a reasonable timeline, particularly given that there was no deadline for payment imposed by the Minutes.

[16] The plaintiff cannot rely on the delay between settlement and production of the Minutes of Settlement by defendant’s counsel to justify this motion. Such delay, if it prejudiced the client, could have been addressed by a revision of the settlement amount or through prejudgment interest. Impatience over such delay also ignores the reality of the intervening holiday period, and the fact that defendant’s counsel was communicating with and receiving instructions from two separate clients with respect to the Minutes.

[17] Finally, even after plaintiff’s counsel had prepared the motion, the defendant’s counsel made a reasonable offer that could have compensated plaintiff’s counsel for most if not all of his time and disbursements expended.

[18] In the result I conclude the defendant’s counsel was unnecessarily put to the expense of responding to this motion. Having reviewed the defendant’s costs outline, this court orders that the defendant shall have its costs payable by the plaintiff fixed in the amount of $2,800 inclusive on a partial indemnity basis and payable in 30 days.

[19] The motion is dismissed with costs as ordered above.

HEALEY J.

Date: March 16, 2012