ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 11-4228-SR
DATE: 2014-09-25
BETWEEN:
Paul Miller
J.A. Byrne and M. Sidky,
Counsel for the Plaintiff
Plaintiff
- and -
A.B.M. Canada Inc.
Defendant
R.B. Bissell and M. Sopik,
Counsel for the Defendant
GLITHERO J.
RULING ON COSTS
[1] Following a trial which lasted parts of three days in this wrongful dismissal action, I delivered Reasons for Judgment awarding the plaintiff damages based on a three month notice period. The amount awarded, exclusive of costs, was $32,425.39.
[2] I invited written submissions on costs, in the event the parties were unable or unwilling to settle the cost issue. Cost submissions have now been received. The plaintiff seeks a total of $60,300.49 in costs on a substantial indemnity basis, but if found to be not so entitled, seeks $41,530.06 for costs on a partial indemnity scale. The defendant responds that an appropriate award of costs in this case, to the plaintiff, would be in the amount of $25,000, all inclusive.
[3] Turning to the factors outlined in Rule 57.01(1), I take into account that the plaintiff claimed compensation based on six months’ notice and the defendant took the position that the employment contract called for only two weeks’ notice. In the end result, the plaintiff succeeded in recovering half of the amount claimed.
[4] Neither side claims that the issues were of anything other than normal complexity, and both agree that the issues were only important to the parties here and not of any public interest.
[5] Both sides complain that the other side took pre-trial steps that lengthened the proceedings unnecessarily. It appears that each side was responsible for some delay. With respect to the contentious allegations of delay, I simply do not have a record before me upon which to sort out which side’s allegations in that respect have merit.
[6] I do take into account that much of the evidence at trial was led in support of a claim that the plaintiff had been induced to accept this employment position and hence was entitled to increased compensation. That position did not succeed at trial.
[7] It appears clear that until the eve of examinations for discovery the defendant took the position that the defendant had been dismissed for cause. That position was abandoned on the eve of discoveries and apparently necessitated an adjournment of the discoveries so counsel could reformulate their position. I confess to some inability to understand how that last minute concession would have done anything on the examinations for discovery except make the plaintiff’s job easier.
[8] Despite the fact that the allegation of termination for cause was abandoned and hence not a live issue at trial, much of the evidence that would have been relevant to such issue was nevertheless led before me in the form of cross-examination of the plaintiff’s witnesses, or through the evidence of the defendant’s witness, by way of answer to assertions on the part of the plaintiff that he had been promised rapid advancement through the organization and hence was entitled to a longer notice period. That argument did not succeed.
[9] I need not repeat everything said in the earlier reasons for judgment, but as a factor relevant to the issue of costs, I take into account that the plaintiff’s evidence was that he read those portions of the employment contract favourable to him, but did not read the section dealing with termination. The evidence was that he was familiar with contracts, that human relations were part of his contractual responsibility, and the contract of employment here was not lengthy and was written in plain language. Had the plaintiff read the termination provisions, he could have voiced his concerns then and we would not have had this lawsuit with its attendant costs to both parties. He signed the contract following the acknowledgement provision in which he signified having read and understood its terms, which given his evidence at trial, was an untrue assertion by him, within the contract.
[10] The plaintiff made an offer to settle in writing six months before trial for an amount calculated on the basis of five months’ notice.
[11] The defendant offered to pay the plaintiff the sum of $20,000 for damages, plus interest and partial indemnity scale costs.
[12] The offer was made 26 months before trial. I have no evidence of any response by either side by way of counter-offer other than is set forth above.
[13] Plaintiff’s counsel asserts that an oral offer was made by counsel for the plaintiff to resolve this matter on the basis of three months’ pay in lieu of notice prior to issuing the statement of claim. This is not admitted on behalf of the defendant. Clearly it does not meet the requirements of Rule 49. As it is not admitted and I have no evidence to that end, in my opinion I cannot place weight upon it.
[14] Counsel for the defence quite properly relies on the observations by Wilson J. in Trafalgar Industries of Canada Ltd. v. Pharmax Ltd. (2003), 2003 40313 (ON SC), 64 O.R. (3d) 288, as it is a decision dealing with costs following a simplified procedure trial. I agree with the observations to the effect that in simplified procedure cases the costs must be reasonable, and must be proportionate to the amount awarded. At paragraph 22 it was held to be “incumbent upon counsel to take precautions to ensure that the costs of the trial does not exceed the amount in dispute”. There, as here, the amount claimed for costs far exceeded the amount of the recovery at trial.
[15] In this case, five lawyers, an articling student and two clerks worked on the case from the plaintiff’s counsel’s firm. The time spent on this matter by lawyers on behalf of the plaintiff far exceeds three 40 hour work weeks. This is in respect of a trial that took less than three days, and as found by me, involved just over $30,000.
[16] In all the circumstances of this case, in my opinion, the submission on behalf of the defendant that the appropriate amount of costs would be $25,000, all inclusive, is at least adequate.
[17] For these reasons, costs fixed in the amount of $25,000, inclusive of fees, disbursements and HST are ordered to be paid by the defendant to the plaintiff.
C.S. Glithero J.
Released: September 25, 2014
COURT FILE NO.: 11-4228-SR
DATE: 2014-09-25
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Paul Miller
Plaintiff
– and –
A.B.M. Canada Inc.
Defendant
Ruling on costs
C.S. Glithero J.
Released: September 25, 2014
/lr