ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 12859/09
DATE: 2012-11-23
BETWEEN:
ANTONIO FILICE Plaintiff – and – COMPLEX SERVICES INC. Defendant
Margaret A. Hoy, for the Plaintiff
Meaghen A. Russell, for the Defendant
the Honourable Justice J. R. Henderson
costs endorsement
[ 1 ] This is my decision regarding the costs of the Defendant’s motion for summary dismissal of the Plaintiff’s claim.
[ 2 ] In the pleadings, the Plaintiff made a variety of claims against the Defendant as a consequence of the Defendant placing the Plaintiff on investigative suspension, and then terminating the Plaintiff’s employment with the Defendant.
[ 3 ] By way of my written decision dated October 24, 2012, I summarily dismissed the Plaintiff’s claims for false arrest, malicious prosecution, breach of the Charter, negligence, and intentional infliction of mental suffering. I did not dismiss the Plaintiff’s claims for constructive dismissal and wrongful dismissal, and those two claims will proceed to trial.
[ 4 ] The Defendant submits that the Defendant was the successful party on the motion because the Defendant obtained a dismissal of five of the seven causes of action. Further, the Defendant relies upon its offer to settle, dated December 16, 2011, in support of a request for substantial indemnity costs from the date of the offer.
[ 5 ] The Plaintiff submits that, although several causes of action were summarily dismissed, the main claims of constructive dismissal and wrongful dismissal survived the motion. Therefore, the Plaintiff requests his costs of the motion on a partial indemnity basis.
[ 6 ] In my view, there was mixed success on the motion. However, in light of the history of this motion and the Defendant’s offer to settle, the Defendant is entitled to some costs.
[ 7 ] This motion was initially returnable on September 27, 2011. Thereafter, there were many delays related to the organization of cross-examinations, the exchange of factums, and the scheduling of a date on which to argue the motion. Eventually, the motion was scheduled to be argued before Justice Tucker on December 20, 2011.
[ 8 ] In the Plaintiff’s factum that was delivered in December 2011, the Plaintiff referred to the issue of constructive dismissal. On the return of the motion the Defendant took the position, and Justice Tucker agreed, that the Plaintiff’s pleadings did not include a claim for constructive dismissal. Therefore, Justice Tucker adjourned the Defendant’s motion, and granted leave to the Plaintiff to amend the pleadings. Thereafter, the pleadings were amended, new materials were filed with respect to the motion, and the motion was re-scheduled to be heard by me on October 19, 2012.
[ 9 ] The Defendant made a written offer to settle, by way of a letter from counsel, dated December 16, 2011, which read in part as follows:
Please accept this correspondence as an Offer to Settle with respect to the pending motion for summary judgment, made in accordance with Rule 49. This offer shall be open for acceptance until five (5) minutes after the commencement of the motion.
The parties will proceed to trial solely on the issues of the alleged constructive dismissal on December 19, 2007, and the alleged wrongful dismissal on May 29, 2009.
The Plaintiff will dismiss the following claims against the Defendant: negligence, malicious prosecution, false arrest, intentional infliction of emotional harm/mental suffering, loss of reputation and violation of the Charter.
The Defendant will withdraw its motion for summary judgment.
No costs will be awarded to either party with respect to this motion.
[ 10 ] This offer to settle was never withdrawn. Clearly, on the summary dismissal motion, the Defendant obtained a result that was as favourable as or more favourable than the terms of the Defendant’s offer to settle.
[ 11 ] The Defendant now relies, by analogy, on Rule 49.10(1). Counsel submits that because the Defendant brought the motion, the Defendant in this case is “the plaintiff” for the purposes of Rule 49.10(1). Therefore, the Defendant requests its costs on a partial indemnity basis to the date of the offer and on a substantial indemnity basis thereafter.
[ 12 ] In my view, Rule 49.10(1) does not technically apply to this situation. Although this rule applies to a “hearing” which includes a motion, according to Rule 1.03(1) a “judgment” means a decision that finally disposes of an application or action. Therefore, the reference to a judgment in Rule 49.10(1) does not include a decision on a motion. Thus, there is no presumption that the Defendant is entitled to enhanced costs because of the Defendant’s offer to settle.
[ 13 ] That being said, Rule 49.13 clearly applies. That rule reads as follows:
Despite Rules 49.03, 49.10 and 49.11, the court, in exercising its discretion with respect to costs, may take into account any offer to settle made in writing, the date the offer was made and the terms of the offer.
[ 14 ] Considering these factors, I find that the Defendant is not entitled to any costs prior to December 16, 2011, because the Defendant’s position during this period was that all of the Plaintiff’s claims should be dismissed. However, the Defendant is entitled to its costs on a partial indemnity basis from December 16, 2011, the date on which the Defendant offered to withdraw its request to summarily dismiss the Plaintiff’s claims for wrongful dismissal and constructive dismissal. The position of the Defendant from and after December 16, 2011, was in accordance with the decision of this court.
[ 15 ] The Defendant is not entitled to its costs for the amendments to the pleadings, but the Defendant is entitled to its costs regarding any adjournment of this motion as a consequence of the amendments to the pleadings. Further, the Defendant is entitled to its costs of the Plaintiff’s abandoned motion to examine a third party.
[ 16 ] Regarding the quantum of costs, the Defendant’s request for partial indemnity costs of approximately $31,000.00, as set out in its Bill of Costs is excessive. The parties had only one significant court appearance prior to the argument of the motion. The oral argument of the motion on October 19, 2012 was approximately one-half day in length.
[ 17 ] I will allow a counsel fee of $1,500.00 for the oral argument of the motion, and another counsel fee of $1,500.00 for all of the other court appearances. For all of the preparation, cross-examinations, factums, and revisions of all materials, I will allow another $6,000.00.
[ 18 ] Therefore, the total costs award will be fees of $9,000.00 plus HST of $1,170.00, plus disbursements of $1,315.33, for a total of $11,485.33. Accordingly, it is hereby ordered that the Plaintiff pay to the Defendant its costs in the total amount of $11,485.33 payable within 30 days.
Henderson, J.
Released: 2012-11-23
COURT FILE NO.: 12859/09
DATE: 2012-11-23
ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: ANTONIO FILICE Plaintiff – and – COMPLEX SERVICES INC. Defendant COSTS ENDORSEMENT Henderson, J.
Released: 2012-11-23