SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: CV-12-452513

DATE: 20140422

RE: Jack King, Plaintiff

AND:

1416088 Ontario Ltd. c.o.b. as Danbury Industrial & Danbury Sales Inc. & 1416087 Ontario Ltd. c.o.b. as Danbury Appraisal & 2184493 Ontario Ltd. c.o.b. as Danbury Solutions & 986866 Ontario Ltd. c.o.b. as Danbury Capital and/or DSL Commercial, Defendants

BEFORE: Mr Justice Graeme Mew

COUNSEL:
Matthew A. Fisher, for the Plaintiffs

W. Eric Kay, for the Defendants

HEARD: 24 and 25 February 2014

Costs AND INTEREST award

[1] Following a two day trial in this wrongful dismissal case, I gave judgment for the plaintiff. I awarded him net damages for wrongful dismissal of $148,562.57 based on 24 months’ pay in lieu of notice less eight weeks’ pay that the plaintiff received prior to trial. In addition I awarded damages based on retirement compensation of $736.60 per month payable from 28 October 2011 (29 months for a total of $21,361.40) and a declaration of continued entitlement to receipt of retirement compensation.

[2] I awarded the plaintiff costs on a partial indemnity scale and invited submissions on the quantum of costs if the parties were unable to agree.

[3] The parties not having agreed on costs, I have received and considered their submissions on quantum.

[4] No offers to settle are relied upon.

[5] The plaintiff invites me to exercise my discretion to award substantial indemnity costs until virtually the eve of trial, being the time at which what the plaintiff describes variously as various “spurious”, “untenable”, “vexatious” and “baseless” defences were abandoned.

[6] Pre-judgment interest of $5,319.79 is claimed on the sum of $169,924.07. The defendants do not challenge the plaintiff’s calculation of interest.

[7] The defendants assert that costs should be awarded on a partial indemnity scale throughout. The total claimed should be reduced to reflect:

a. Time spent between 25 June 2012 and 2 January 2013, valued at $16,016 related to a summary judgment motion which was settled with costs payable to the plaintiff fixed at $2,500;

b. Time spent by a senior lawyer in respect of preparation for and attendance at trial, valued at $6,422, despite that lawyer not having appeared as counsel at trial;

c. The reasonable expectations of the parties having regard to the fees of $30,106.00 charged to their clients by the lawyers for the defendants (ignoring summary judgment fees).

[8] Although some of the defences pleaded and apparently maintained by the defendants until shortly before trial were unmeritorious and bound to fail, it seems unlikely that they would have had anything more than a minimal aggravating effect on the plaintiff’s overall legal fees.

[9] It would be appropriate to take into account the fees now claimed in respect of work relating to the summary judgment motion, the costs of which have previously been agreed.

[10] The fact that a lawyer involved in the preparation for trial did not attend trial as counsel would not necessarily result in that lawyer’s time being discounted in whole or in part. Nor should a lawyer’s attendance at court to support or instruct counsel never be compensable.

[11] Having regard to the foregoing, and to the factors set out in Rule 57.01(1) and the Court of Appeal’s admonition in Boucher v. Public Accountants Council of Ontario, (2004) 2004 14579 (ON CA), 71 O.R. (3d) 291 at para. 26, that amount of costs should be fair and reasonable to the unsuccessful party in the particular proceeding rather than an amount fixed by the actual costs incurred by the successful litigant, I find it fair and reasonable to fix costs at $47,500 (inclusive of HST and disbursements).

[12] The plaintiff is therefore entitled to costs of $47,500 payable by the defendants jointly and severally, as well as pre-judgment interest of 5,319.79 and post-judgment interest in accordance with s. 129 of the Courts of Justice Act.

Mew J.

Date: 22 April 2014