Michela v. St. Thomas of Villanova Catholic School, 2015 ONSC 1145

COURT FILE NO.: CV-13-491985

DATE: 20150220

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: DOMENICA MICHELA, SERGIO GOMES,

and CATHERINE CARNOVALE

Plaintiffs/Moving Parties

AND:

ST. THOMAS OF VILLANOVA CATHOLIC SCHOOL

Defendant/Responding Party

BEFORE: Mr. Justice Lederer

COUNSEL: Stephen J. Moreau, for the Plaintiffs/Moving Parties

Ian St. John, for the Defendant/Responding Party

COSTS ENDORSEMENT

[1] I have reviewed all of the costs submissions.

[2] The substantive issue is the applicability and effect of a settlement offer made by the defendant, collectively to the three plaintiffs, pursuant to rule 49.10 of the Rules of Civil Procedure. The plaintiffs say they “beat” the offer; the defendant says they did not.

[3] To my mind, in this case, it does not matter. I do note, however, that it is not clear to me how the defendant expected its offer to be received. There is a presumption that the three plaintiffs would share the determination that the result was less than the offer. It is a benefit when plaintiffs sue together. If these three had not, the defendant might well have sought to have the actions consolidated or at least heard together. Nonetheless, this is not a team sport. Ultimately, each of the plaintiffs stands on his or her own. This is demonstrated, albeit in a small way, by the fact that Sergio Gomes claimed more than was sought by his fellow plaintiffs (a longer notice period). This speaks to the understanding that the circumstances of each of them were different. Even if, in total, the result was less than the offer, this might not be true for all three. It depends on the division of the funds offered.

[4] Having said this, I observe that the purpose behind rule 49.10 is to promote settlement. An early offer followed by an intransigent battle is not dedicated to that purpose. The defendant lost the issues that were fundamental to this proceeding. It insisted that the three teachers were fixed- term employees and that, in any event, each of them failed to mitigate their damages. The judgment rules against each of these positions. It is only because the Court determined that the notice periods, as proposed by the plaintiffs, were too long that the defendant is in a position to now propose that its r. 49.10 offer should be determinative of costs at least since the date it was made.

[5] I am not prepared to award any costs to the defendant. Making a settlement offer, taking a position at trial that by its uncompromising nature complicates and lengthens the proceedings and then relying on the offer to claim costs is contrary to the purpose of the rule. It is the use of the rule as a strategy to lessen the risk of taking an obstreperous position (which may have the effect of raising the costs) and thereby increasing the vulnerability of the other side as the action goes on. In this case, it tends to confirm one of the unhappier aspects of this case. The apparent willingness of the school to use its greater power in its relationship with these teachers to get to the result it wanted. It was not dedicated to finding a settlement that would have been demonstrative of a compromise that was acceptable to both sides.

[6] I award costs to the plaintiffs in the amount of $42,000, to be credited to them in equal amounts. I do this noting that it is the amount requested, but that it reflects a reduction in recognition of the reduced success occasioned by the lower notice period used in calculating the value of the award.

LEDERER J.

Date: 20150220