ONTARIO
SUPERIOR COURT OF JUSTICE
HAMILTON COURT FILE NO.: 10-20390
DATE: 2012/11/06
B E T W E E N:
Nancy Christie
Heather C. Devine and Kathleen Bingham, for the Plaintiff
Plaintiff
- and -
Trent University, Trent University Faculty Association, Steven Franklin, Timothy Stapleton, Keith Walden, Joan Sangster, Dimitry Anastakis, Janet Miron, Christopher Dummitt, Fiona Harris-Stoertz, Christine Mckinnon, Olga Andriewsky, John Doe and Jane Doe
Amanda J. Hunter, for the Defendants Trent University, Steven Franklin, Joan Sangster, Christine Mckinnon
Defendants
The Honourable Justice C. A. Tucker
COSTS ENDORSEMENT
Issue
[ 1 ] Are the defendants, Trent University (“Trent”), Steven Franklin (“Franklin”), Joan Sangster and Christine Mckinnon, entitled to their costs on their motion to strike the Statement of Claim of Dr. Christie?
[ 2 ] If so, are they entitled to such costs on a substantial indemnity basis?
[ 3 ] Should a stay be granted of the determination of costs until the application made by Dr. Christie to the Ontario Human Tribunal of Ontario has been resolved on its merits?
Background
[ 4 ] The plaintiff sued the defendants in the Superior Court based on her position that although all of her causes of action were covered by Trent’s Collective Agreement that either she was not a member of the bargaining unit and/or that the wording of the Collective Agreement allowed her to pursue certain of her claims in the court. The defendants brought a motion to strike her claim and after a two-day hearing by a seven page endorsement issued on August 12, 2011, I granted their motion. The plaintiff and the defendants noted above have been unable to resolve the issue of costs and have provided me with lengthy submissions on the issue. The balance of the defendants have resolved the issue of costs.
[ 5 ] The defendants, citing their success, seek costs and for the reasons briefly discussed below, they argue entitlement to the same on a substantial indemnity basis. They claim $54,091.97 in fees, and disbursements of $2,239.84 together with a further $5,000 for the preparation of their written costs submissions. The plaintiff argues that the issue was one of interpretation and as such was properly commenced in the Superior Court and the motion was properly resisted, that she is without employment to pay such costs and that her claim of discrimination to the Human Rights Tribunal should be dealt with prior to the issue of costs being determination. The defendants claim substantial indemnity citing and blaming the plaintiff for delay and lengthy and unnecessary cross-examinations conducted not in the furtherance of the very issue on the motion. Rather they claim an ulterior motive by the plaintiff to seek evidence to be relied upon perhaps in the action itself or another forum. This is just an overview of the parties’ respective positions. The materials filed on the submissions for costs contained in each case at least 20 pages of tightly typed submissions together with volumes of supporting documents and books of authorities which put together would comprise in excess of 15 inches or close to half a banker’s box.
[ 6 ] I comment firstly on that aspect. The amount claimed by the defendants is large, but to compound the legal bill for a two-day hearing (which initially was originally scheduled for a few hours) they seek a further $5,000 in costs to recover those costs. There was some complexity to the issue, especially as the plaintiff originally appeared to resist the motion on a number of grounds, some of which she abandoned at the hearing. One such ground was that the cause of actions themselves lay outside the Collective Agreement. There was also delay in the production of material, delay in scheduling the hearing and delay incurred as a result of numerous cross-examinations of many of the defendants. The defendants use these to explain the $50,000 motion.
Analysis and Decision
[ 7 ] The defendants are entitled to costs. They were wholly successful. Although the plaintiff may have, in their opinion, unnecessarily pursued cross-examinations irrelevant to the proceedings, they acquiesced in such actions producing such individuals. The actions taken may in hindsight be taken as unnecessary. I do not see such actions as such an abuse of process so as to punish the plaintiff in the circumstances by awarding substantial indemnity costs to the defendants. The amount claimed on a partial indemnity basis would be adequate compensation for the defendant in these circumstances. In fact, even that amount appears to be large given the issue in question, and a two-day hearing. The plaintiff shall pay costs to the defendants in the amount of $35,000 in total for fees including the costs of preparing these submissions together with disbursements of $2,239.84 for a total of $37,239.84. I am not unsympathetic to Dr. Christie’s financial circumstances. However the cost of litigation must be considered when embarking on a lawsuit. The successful defendants should not be forced to fund the unsuccessful plaintiff’s action.
[ 8 ] I find no reason to “stay” my determination on costs on a motion heard over a year ago simply because a claim has been asserted by the plaintiff in a different forum. Dr. Christie’s actions in making that application is not seeking an appeal of my ruling nor would any determination by the Human Rights Tribunal change the ultimate effect of my decision to strike her claim as not properly brought in the Superior Court of Justice. Accordingly, I deny that request.
Tucker, J.
Released: November 6, 2012
HAMILTON COURT FILE NO.: 10-20390
DATE: 2011-11-06
ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: Nancy Christie Plaintiff - and – Trent University, Trent University Faculty Association, Steven Franklin, Timothy Stapleton, Keith Walden, Joan Sangster, Dimitry Anastakis, Janet Miron, Christopher Dummitt, Fiona Harris-Stoertz, Christine Mckinnon, Olga Andriewsky, John Doe and Jane Doe Defendants COSTS ENDORSEMENT Tucker, J.
Released: November 6, 2012