NEWMARKET

COURT FILE NO.: CV-02-65406

DATE: 20140811

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: NAEEM SYED AHMED, Plaintiff

AND:

CONCORD HARD CHROME LIMITED, Defendants

BEFORE: THE HON. MR. JUSTICE P.H. HOWDEN

COUNSEL:
P. DiMonte, Counsel, for the Plaintiff

L. Todd, Counsel, for the Defendant

HEARD: by written submissions

ENDORSEMENT

[1] The plaintiff obtained judgment following a trial in the sum of $12,400. His claim concerned a wrongful dismissal by the defendant in January 2002. The action began in December 2002. The amount claimed was $205,000 in damages including a punitive damage claim of $35,000 which was abandoned at trial. His counsel was not Mr. Di Monte.

[2] I understand that pleadings were completed and examinations for discovery finished by November 2004 subject to undertakings of the plaintiff being met. For reasons unknown to me, this action then languished for seven years until it was set down for trial in December 2011. Neither party took a further step, during this period, the plaintiff not setting it down for trial or addressing the undertakings and the defendant not moving on the unfulfilled undertakings or for dismissal for delay.

[3] Mr. Di Monte came on this file for the plaintiff in April 2012. The undertakings were largely completed by the fall of 2012. Trial was adjourned twice and finally occurred during the sittings in May 2014 for two days.

[4] There are two issues to be dealt with: first, the costs of the action, and second, how pre-judgment interest should be awarded, given the long period of morabundity.

[5] There have been no rule 49 offers. No effort was made by the plaintiff’s counsel, present or past, to move this action to the simplified procedure or summary trial. The simplified rules procedure was to apply to actions begun after January 1, 2002 and before January 1, 2010 like this one where the amount claimed was under $50,000. After January 1, 2010, the limit was increased to $100,000.

[6] Counsel for the defendant corporation, Mr. Todd, proposes that no order on costs be made in these circumstances, and as to pre-judgment interest, he proposes that it be limited to the period from the issuance of the statement of claim on December 12, 2002 to the completion of discoveries in November 2004. In the alternative, he suggests that if an order as to costs is made, it should reflect the intended purposes of the simplified procedure rules - affordable and accessible justice - by scaling costs down from the level usual in actions under the ordinary rules.

[7] For the plaintiff, Mr. Di Monte proposes that the plaintiff be awarded costs on the substantial indemnity scale because the dismissal occurred without any notice and without cause. The costs claimed on that scale are $24,530.29. Costs on a partial indemnity scale are claimed at $19,260.29. Of the total, disbursements are claimed in the sum of $1,133.00. (All figures are without HST being included).

[8] Cost awards are in the discretion of the court, to be exercised in light of the Rules of Civil Procedure. Section 131(1) of the Courts of Justice Act, R.S.O. 1990, c. C.43, states:

Subject to the provisions of an Act or rules of court, the costs of and incidental to a proceeding or a step in a proceeding are in the discretion of the court, and the court may determine by whom and to what extent the costs shall be paid.

[9] Rule 76.13 provides:

(2) Subrules (3) to (10) apply to a plaintiff who obtains a judgment that satisfies the following conditions:

1. The judgment awards exclusively one or more of the following:

i. Money.

ii. Real property.

iii. Personal property.

2. The total of the following amounts is $100,000 or less, exclusive of interest and costs:

i. The amount of money awarded, if any.

ii. The fair market value of any real property and of any personal property awarded, as at the date the action is commenced. O. Reg. 284/01, s. 25; O. Reg. 438/08, s. 60 (1).

(3) The plaintiff shall not recover any costs unless,

(a) the action was proceeding under this Rule at the commencement of the trial; or

(b) the court is satisfied that it was reasonable for the plaintiff,

(i) to have commenced and continued the action under the ordinary procedure, or

(ii) to have allowed the action to be continued under the ordinary procedure by not abandoning claims or parts of claims that do not comply with subrule 76.02(1), (2) or (2.1).

[10] Rule 76.13(11) provides:

(11) In the case of an action that was commenced on or after January 1, 2002 and before January 1, 2010, subrules (2), (7) and (8) apply as if “$100,000” read “$50,000”.

[11] Rule 1.04 provides the following approach to applying the civil rules:

These rules shall be liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits

[12] I have considered counsel’s submissions and the cases cited by them. I am aware of the strict approach taken in some early cases after the simplified rules were adopted. See Wondercard Inc. v Electric Colourfast Printing Corp. (1999),1999 14790 (ON SC), 43 O.R.(3d)799 (Ont. Gen Div.), at pp.800-1. In this case, the claim as presented at trial was initially for well over $50,000, the limit for applying the simplified rules until 2010, according to the damages summary presented by Mr. Di Monte at the commencement of the trial. In his opening, according to my notes, Mr. Di Monte presented a somewhat different claim. He stated that his damage brief was not the correct approach and that the plaintiff was seeking $43,395 in lieu of notice, plus overtime not paid of $37,486.80. The total claim on this basis was $80,880(rounded) without deducting earnings during the notice period. The claim for punitive damages was not pursued at trial. The judgment awarded the plaintiff was $12,400, largely because Mr. Ahmed earned in mitigation $15,100 over the six months. The plaintiff agreed in cross-examination that he no longer claimed unpaid overtime, leaving the claim at $43,400 without deducting his earnings during the notice period. As originally sought in the statement of claim, damages including punitive damages were $205,000.

[13] I cannot find that it was reasonable to continue this case under the ordinary rules. Mr. Ahmed conceded the whole overtime claim without any prodding early in the cross-examination. There is no reasons why his counsel and he failed to act earlier to concede this part of the claim and the punitive damages claim for which I could see no basis and to deduct for his earnings in mitigation. However, in view of the way in which Mr. Ahmed was disposed of by the defendant, without notice or explanation where a lesser disciplinary method was available, and because this trial was brief and would not have been shorter if it continued as a simplified rules case, and because this court is master of its own procedure as rule 1.04 directs, it does not offend the purpose of rule 76 to grant the plaintiff costs as the more successful party. In my view, justice demands that the plaintiff be granted costs in these circumstances. I was given no authority to support an award on a substantial indemnity scale in the circumstances of this case. In view of the way in which Mr. Ahmed was treated for raising a valid question with his employer, it is simply not just in my view to deprive him totally of costs for what was not his mistake.

[14] Costs will be allowed on a partial indemnity basis. Following rule 1.03, the scale must be at least one-third lower than the value of the fees claimed on the substantial indemnity scale. Furthermore, no costs will be allowed to the plaintiff for the examinations for discovery, a step that would not have occurred but for the failure of the plaintiff to concede that his claim was far less than $50,000. I deduct five hours at $375/hour for examinations for discovery and 3 hours from the 16 hours claimed for attendance at trial; driving time does not attract a full hourly rate and the trial time was approximately 10 hours. I will allow a further three hours for preparation during trial. The partial indemnity equivalent of the $23,250 claimed on a substantial indemnity basis is $15,500. After the other reductions that I have found necessary to equate to a fair value for work required are made, on the partial indemnity scale, I fix costs at $12,500 plus $1,133 for disbursements totalling $13,633.

[15] The defendant shall pay the plaintiff’s costs in the sum of $13,633.

[16] As to the pre-judgment interest, it is ordered that it be allowed for the period from December 2002 to November 2004 and from December 2011 to release of the Reasons in accordance with the rules. This approach represents the periods when this action was being pursued actively and not while it did not move forward for seven years.

HOWDEN J.

Date: August 11, 2014