SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CV-11-610

DATE: 2012-02-03

ONTARIO

BETWEE N:

SANDRA POTTRUFF

C. De Leon-Culp, for the Plaintiff

Plaintiff

• and -

DON BERRY HOLDINGS INC.

P. Quinlan, for the Defendant

Defendant

The Hon. Mr. Justice Arrell

JUDGMENT ON COSTS

INTRODUCTION:

[ 1 ] The defendant brought a motion for the return of a document from the plaintiff which it considered privileged. The plaintiff opposed the motion on the basis that solicitor client privilege for the document was lost. I ruled in favour of the defendant and ordered the plaintiff to return all copies of the document forthwith. I also ruled that the document was not to form any part of the record.

[ 2 ] The parties were invited to agree on costs, however, if they could not then written submissions could be filed. I have now reviewed those written submissions.

ANALYSIS:

[ 3 ] The plaintiff has brought this action for constructive dismissal. Inadvertently, the plaintiff’s husband, while working on the defendants computer came across an e-mail summarizing discussions between the defendant and its solicitor regarding the future working arrangements for his wife. He forwarded the document to his own computer so he could copy it for his wife which she subsequently wanted to use in her constructive dismissal law suit.

I ruled that the document was protected by solicitor and client privilege and could not form part of the record.

[ 4 ] The defendant claims total success on a motion that its counsel alleges should never have been necessary and as a result should be awarded substantial indemnity costs.

[ 5 ] The plaintiff urges me to find that there were mixed results on the motion and therefore I should make no order as to costs. I disagree. The defence was clearly successful in spite of there being no order that plaintiff’s counsel remove herself from the case which would have accomplished nothing and was not really argued on the motion, as well the request that there be an injunction on discussions of the document was not argued. I do not consider that a mixed result.

[ 6 ] In the alternative the plaintiff argues that this was a novel point of law as it involved the internet, e-mails and solicitor/client privilege. I disagree. Simply because the document was electronic did not make the concept novel. Basic and long established principles of privilege applied and indeed that was the law that was presented to me by both sides.

[ 7 ] Finally plaintiff’s counsel argues that costs should only be awarded in the cause. I again, with respect, disagree. The plaintiff could have easily returned the document and agreed not to have it form part of the record as I ruled. She elected to test the waters and was unsuccessful. Our rules are clear that unsuccessful litigants are generally responsible to the successful litigant for costs. There are no unusual circumstances here to deprive the defendant of its costs. No offers were filed by either party.

[ 8 ] The respondent urges me to award substantial indemnity costs. I conclude that substantial indemnity costs should only be awarded on rare occasions to defendants to mark a court’s disapproval of a party’s conduct during litigation, when no offers are in play.

Prinzo v. Baycrest , (2002) 600.R (3d) 474 (C.A.)

[ 9 ] I concluded that the plaintiff’s argument on the motion was not persuasive. I do not, however, find that the position she took on the motion to be in any way worthy of sanction, such that substantial indemnity costs should be imposed.

[ 10 ] There is no doubt the respondent is entitled to costs. In determining quantum the court is to consider the various factors set out in Rule 57.01 of the Rules of Civil Procedure . I have considered those factors.

[ 11 ] This was not really a very complex or complicated matter. The court must consider proportionality when exercising its discretion. The court must also consider the amount of costs the applicant could reasonably expect to pay should she be unsuccessful as she was. I have also taken into account the resources of the plaintiff and that a cost award should not be such as to prevent her from pursuing her claim.

[ 12 ] I have considered the principles in Boucher v. Public Accountants Council for the Province of Ontario (2004), 2004 14579 (ON CA) , 71 O.R. (3d) 291 (C.A.) and find that costs to the respondent on a partial indemnity basis in all the circumstances is fair and reasonable to both sides and within their respective expectations.

[ 13 ] The respondent claims partial indemnity costs of $ 4,375.57 inclusive of disbursements and taxes. I consider the amount of time spent somewhat excessive under the proportionality criteria and considering the actual hearing was not much more than 1 hour.

[ 14 ] I conclude that fair and reasonable costs under all the circumstances should be fixed at $3500.00 inclusive of taxes and disbursements payable by the plaintiff to the defendant at the conclusion of the law suit.

Arrell, J.

Released: February 3, 2012

COURT FILE NO.: CV-11-610

DATE: 2012-02-03

ONTARIO SUPERIOR COURT OF JUSTICE BETWEE N: SANDRA POTTRUFF Plaintiff - and - DON BERRY HOLDINGS INC. Defendant JUDGMENT ON COSTS ARRELL, J.

Released: February 3, 2012