SUPERIOR COURT OF JUSTICE - ONTARIO
COURT FILE NO.: CV-12-4735-00
DATE: 2014 08 19
RE: ROSEMARY RITA MAROTTA - and - GANZ (an Ontario partnership registered as “2121200 Ontario Inc.”)
BEFORE: EMERY J.
COUNSEL:
Stephen J. Moreau, for the Plaintiff/Moving Party
Jed Blackburn, for the Defendant/Responding Party
COSTS ENDORSEMENT
[1] I invited submissions on costs in paragraph 51 of my reasons for decision on the plaintiff’s motion released on May 15, 2014. I have now received a book of submissions from counsel for the plaintiff seeking costs in the amount of $12,177 exclusive of disbursements and HST, plus a further $1,000 for the preparation of those submissions. I have received a responding book of cost submissions from the defendant Ganz. Ganz takes the position that costs should be refused or be awarded for only a nominal amount. I also acknowledge receiving reply submissions and a request that I clarify the order I made from counsel for the Ms. Marotta in the form of letters dated June 18 and June 19, 2014, and a letter from Ganz dated June 19 in response to the request for clarification.
CLARIFICATION
[2] Mr. Moreau’s letter dated June 18, 2014 seeks clarification from the court about whether the court intended to order the defendant Ganz to produce further documents in the form of any calendars, travel documents, accounting records, or other such documents evidencing her trips as the sole representative for Ganz to four specified meetings and conferences in the US. He seeks this clarification because paragraph 46 of my reasons makes reference to paragraph 58 of the plaintiff’s factum. In that paragraph, counsel for Ms. Marotta describes those documents in addition to the authorizations Ganz has already been ordered to list in a further and better affidavit of documents.
[3] Counsel for Ganz points out in his letter dated June 19, 2014 that in respect of my order that Ganz provide a further and better affidavit of documents with specific reference to what it should include, I referred only to the certain documents in paragraph 50, subparagraph 2 of my reasons. He submits that when I dismissed the balance of the motion at the end of the orders made in paragraph 50, this included any motion for the disclosure of the travel related documents.
[4] Ganz opposes the request for clarification for two further reasons. First, Ganz argues that Ms. Marotta’s request for disclosure of the travel related documents did not arise from any answer provided to undertakings. As such, the request to include these documents in the further and better affidavit of documents does not flow from the answers to undertakings given by Ganz.
[5] Second, Ganz states that it has never denied Ms. Marotta’s attendance at the meetings to which the travel related documents relate. It is not in dispute that such trips occurred, and Ganz argues that any travel related documents for those trips is therefore irrelevant.
[6] I have reviewed Ms. Marotta’s evidence filed in support of the motion with respect to her request for clarification. In paragraph 25 of her affidavit, Ms. Marotta clearly states that one of the issues in the case is the precise nature of the position she held with Ganz. In paragraph 27 of her affidavit she describes that she provided legal work to Ganz at a high level, and attended meetings on behalf of Ganz. In paragraph 28 she deposes that Ganz has disputed the nature and level of the legal work she provided in the course of her employment. In paragraph 29 she describes the meetings she attended on behalf of Ganz as its sole representative, including meetings she attended in Washington and New York City between 2008 and 2012. And in paragraph 30 Ms. Marotta deposes that Ganz would have maintained travel records, calendars, accounting records and similar documents that would prove that she was the only legal representative for Ganz at those meetings.
[7] The clarification at issue relates to of the plaintiff’s motion for a further and better affidavit of documents. It is not relative to answers for undertakings or refusals.
[8] In view of the request by Ms. Marotta that the order include those documents described in paragraph 58(b) of her factum and reading no significant opposition except as stated, I hereby exercise the discretion given to me under Rule 59.06(1) to rectify an omission to my previous order. I therefore amend paragraph 50, subparagraph 2 of my reasons for decision on the motion as follows:
(2) Ganz is to serve a further and better affidavit of documents to list all authorizations signed by Ms. Marotta while employed as a lawyer at Ganz, any calendars, travel documents, records, or other such documents evidencing her trips as Ganz’ sole representative to four (4) specified meetings and conferences in the US, as well as all documents from the email search Ganz is ordered to conduct under subparagraph 1-B above;
COSTS
[9] The court is given broad discretion to determine by whom and to what extent costs should be paid in any step in a proceeding under section 131 of the Courts of Justice Act. This motion is one such step.
[10] The motions judge is generally required to fix the costs of a contested motion and order them to be paid within 30 days under Rule 57.03(1).
[11] When exercising the discretion of the court under section 131 of the Courts of Justice Act, the motions judge may consider the factors set out under Rule 57.01. Those factors include, but are not limited to the amount of costs that an unsuccessful party could reasonably expect to pay in relation to that motion, the complexity in the proceeding, the importance of the issues, the conduct of any party that tended to shorten or to lengthen unnecessarily the duration of the proceeding, and a party’s denial of or refusal to admit anything that should have been admitted. The court is also directed by Rule 57.01(7) to devise and adopt the simplest, least expensive and most expeditious process for fixing costs and may fix costs after receiving written submissions, without the attendance of the parties. That is what I propose to do here.
Complexity and Importance of the Issues:
[12] This action is all about what amount Ganz should pay for terminating Ms. Marotta from her employment without notice. As indicated in my reasons on the motion, no cause is alleged against Ms. Marotta and therefore liability is not an issue. All that must be determined is what Bardal factors are relevant to the assessment of damages for the amount of notice and related relief she seeks in the statement of claim.
[13] I find that the motion to enforce undertakings and to have the court determine what refusals were proper questions was necessary for the plaintiff Marotta to advance her case. In most dismissal actions, the employer retains most, if not all relevant documents the employee requires to prove her or his claim. The plaintiff relies heavily on the obligations of the defendant employer to make full and continuous disclosure as required by the Rules. The motion here was moderately complex and Ms. Marotta was successful in connecting the questions to the allegations made in the pleadings to make them relevant. The motion was important to her case as the relief she obtained relates directly to issues central to her claim.
Unnecessary Lengthening of the Process:
[14] According to the motion materials, Ms. Marotta was in a vulnerable position both emotionally and financially as a result of her termination from employment. She and her counsel could only refer to the positions taken by Ganz at the point in time when the decision was made to bring the motion and to spend the time and expense for that motion. They had no obligation to rely on any representation or forecast on how Ganz might respond at a later date.
[15] I have given no weight to the argument by the defendant Ganz that the motion was unnecessary. It is clear from the record that Ms. Marotta was made to wait over ten months before any meaningful answers to undertakings were provided.
[16] I also do not accept the argument that Ganz was collecting all information to answer the undertakings as a package. Undertakings on a question by question basis should be answered in a timely way in the course of the ongoing disclosure and discovery process. This is made evident by Rule 31.07 which provides that a person who undertakes to answer a question is considered to have failed to answer a question if no answer is provided within 60 days. By implication or analogy, this to my mind is authority for the proposition that individual undertakings must be answered within 60 days of the date they were given.
Expectations and Quantum:
[17] Ms. Marotta has provided a bill of costs for the time and work her lawyers have expended on the motion. This bill of costs shows how the total fees in the amount of $12,177 is calculated, the disbursements of $460.50 claimed and HST on those amounts. She claims a total of $14,280.38 on a partial indemnity basis.
[18] Mr. Moreau’s time makes up the greatest amount of the fees claimed, being 26.9 hours for preparation and respect of the motion and 10 hours for the preparation and presentation of oral argument. I take no issue with the number of hours expended by Mr. Moreau in either regard. In his written submissions on behalf of Ms. Marotta, he states that his actual rate to Ms. Marotta is $350 an hour, which I understand to be an hourly rate on the lower side of the spectrum of legal fees charged by lawyers of his vintage in downtown Toronto.
[19] The fees attributed to Mr. Moreau on a partial indemnity basis are allowed at $275 an hour, on a partial indemnity basis. This is also the rate allowed by the court for counsel with a similar call year in Geographic Resources Integrated Data Solutions Ltd. v. Peterson, 2013 ONSC 1041. For the 36.9 hours of time he claims, I therefore award costs to Ms. Marotta in the amount of $10,148 for Mr. Moreau’s time, $170 for Ms. O’Connor’s time and $135 for Ms. Downer’s time, resulting in a total of $10,913.50 for fees, plus $460.50 for disbursements and HST where applicable. I find this amount to be reasonable and in accordance with the principles for awarding costs set out in Boucher v. Public Accountants Council for the Province of Ontario (2004), 2004 14579 (ON CA), 71 O.R. (3d) 291 (Ont. C.A.) and Zesta Engineering Ltd. v. Cloutier, 2002 25577 (ON CA), [2002] O.J. No. 4495 (Ont. C.A.)
[20] This amount should not surprize Ganz or its counsel. They have not provided any indication of what Ganz expected to pay as an unsuccessful party.
[21] I thank counsel for the request to clarify my order and for their thorough and thoughtful submissions on costs. In view of the expense incurred by each side to make these submissions, I award no further costs for making them.
Emery J
DATE: August 19, 2014
COURT FILE NO.: CV-12-4735-00
DATE: 2014 08 19
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: ROSEMARY RITA MAROTTA - and -
GANZ (an Ontario partnership registered as “2121200 Ontario Inc.”)
BEFORE: EMERY J.
COUNSEL: Stephen J. Moreau, for the Plaintiff/Moving Party
Jed Blackburn, for the Defendant/Respondent Party
COSTS ENDORSEMENT
EMERY J.
DATE: August 19, 2014