ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CV-12-453330
DATE: 20130918
BETWEEN:
JAN PETROOK,
Plaintiff,
Responding Party on the Motion
– and –
NATUZZI AMERICAS, INC.,
Defendant,
Moving Party on the Motion
Andrea J. Sanche, Counsel for the Plaintiff
Peter J. Pliszka and Zohaib I. Malawala, Counsel for the Defendant
WRITTEN SUBMISSIONS ON COSTS
endorsement: greer j.:
[1] On July 3, 2013, I released Written Reasons on a Motion before me in this proceeding. The Plaintiff, Petrook, was successful on the Motion brought on by the Defendant, Natuzzi to stay her action or dismiss it on the grounds that the Court had no jurisdiction over the subject matter of the action.
[2] In para. 40 I said since Petrook was successful on the Motion she was entitled to her Costs. I set out the parameters as to how the Costs Submissions were to be structured and sent to me within 30 days of the Endorsement being released by me.
[3] Counsel for Petrook has submitted her Bills of Costs with details as to the following scale of fees, inclusive of disbursements and H.S.T.:
a) Partial $15,996.12 at $240 per hour
b) Substantial $19,177.07 at $290 per hour
c) Actual Fees $25,857.07 at $395 per hour
Counsel for Petrook was called to the Bar of Ontario in 2005. Most of time spent on the Motion was hers.
[4] It is Petrook’s position that she is entitled to her Costs on a substantial indemnity basis. She points to the fact that her claim is an employment issue, claiming that she was wrongfully dismissed. Added to this, she says was the complexity of the matter, given the jurisdiction issue, that arose, with Natuzzi being an Italian company with its North American headquarters in North Carolina, U.S.A.
[5] Counsel points to the fact that she tried to keep Costs down by not cross-examining the Affiants on any of the Affidavits filed by Natuzzi. She further says that Natuzzi’s case was not strong on the jurisdiction issue, given that it knew that Petrook was going to bring her action in Ontario, when it moved in North Carolina for declaratory relief, trying to pre-empt the Ontario action.
[6] Natuzzi accepts, as reasonable, the payment of Petrook’s Costs on a partial indemnity scale at $15,996.12. It says the Motion does not warrant the application of the substantial indemnity scale, which should be reserved for the “rare and exceptional cases”.
[7] Natuzzi says that it was neither unreasonable nor improper for it to bring on a forum non conveniens Motion in the circumstances of this case. It made no allegations of fraud, bad faith or misconduct respecting Petrook’s dismissal from the company.
[8] The Court applies the factors in R.57.01(1) and looks to what is reasonable in the circumstances of the case before it, and what a reasonable litigant would see as that, when it is the one who lost the Motion. The Court also applies the principle of proportionality to determine what is fair and reasonable. See: Boucher v. Public Accountants Council for the Province of Ontario, 2004 1457 (C.A.) at para. 37.
[9] In Normerica Inc. and Northdown Industries Inc. v. Echo Global Logistics Inc. 2011 ONSC 6827 (S.C.J.), the Court awarded the successful parties their Costs on a substantial indemnity basis at $21,250.69 payable within 30 days. In that case, in para. 43, the Court said “The general principle is that like cases should conclude with like substantive results.” Fixing Costs is not just a mathematical exercise. There also, the Court made note that the unsuccessful moving party did not put forward its own dockets to compare what it was charging its client on the Motion. That is the case before me.
[10] I reject Natuzzi’s argument that the Costs of Petrook should be reduced because time was spent in researching and preparing submissions on the issue of jurisdiction simpliciter. In my view, Petrook had to do this, considering Natuzzi’s move to pre-empt Petrook from issuing her claim first in Ontario.
[11] In the circumstances of this case, I fix Petrook’s Costs at $19,177.07 on the substantial indemnity scale. The case is on employment case with cross-border aspects, where the Defendant had a long-term relationship with the Plaintiff. The Costs shall be payable in 30 days, with post-judgment interest running at the Courts of Justice Act rate if not paid within 30 days.
Greer J.
Released: September 18, 2013
COURT FILE NO.: CV-12-453330
DATE: 20130918
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
JAN PETROOK,
Plaintiff,
Responding Party on the Motion
– and –
NATUZZI AMERICAS, INC.,
Defendant,
Moving Party on the Motion
ENDORSEMENT
Greer J.
Released: September 18, 2013