Fraser v. Canerector Inc., 2015 ONSC 2838

COURT FILE NO.: CV-14-507469

DATE: 20150430

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: Stuart Fraser, Plaintiff

AND:

Canerector Inc., Defendant

BEFORE: Sean F. Dunphy J.

COUNSEL: Greg McGinnis and Stephanie Ramsay, for the Plaintiff

W. Mark Fryer, for the Defendant

HEARD: April 7, 2015

COSTS ENDORSEMENT

[1] I have carefully considered the submissions and costs outlines of both the plaintiff and the defendant in this matter as well as the factors set forth in Rule 57.01 of the Rules of Civil Procedure.

[2] The plaintiff has been successful in this matter even if the level of success is only a fraction of the amount claimed. On the other hand, the defendant is correct in pointing out that the plaintiff was unsuccessful in establishing the two main pillars of his claim: inducement and entitlement to the inclusion of bonus in his damages claim.

[3] The defendant provided the plaintiff with a time limited settlement offer which, in hindsight, would have provided the plaintiff with a superior outcome than that which the plaintiff has achieved in litigation. At the time that offer expired, however, the plaintiff could not have known that he would be as successful as he was in securing alternative employment as quickly as he subsequently did.

[4] The defendant had every opportunity to make an offer in proper form under Rule 49. The offer made in this case expired prior to the commencement of litigation and is of only very limited utility in assessing costs. Even after the plaintiff secured alternative employment, the defendant could have chosen to make an offer to provide full wages and the value of benefits until that date which was well within the three months the defendant had originally offered. No such offer was made. The defendant chose to play hardball to a degree and thereby deprived itself – I must assume knowingly – of the benefit that it could have derived from that offer had it been left outstanding. Every strategy carries with it risks and potential benefits. Had the defendant wished to secure the benefit of having offered up to three months severance, there was a means open to the defendant to do so prior to litigation or at any time after it commenced. The credit the defendant can claim from its early, expired offer is thus quite limited.

[5] The plaintiff having been successful is entitled to costs, but having regard to the substantial success of the defendant on the two main issues, that costs award will be quite modest. Absent the plaintiff’s unsuccessful claims of inducement or claims to bonus entitlement, there is little prospect that this litigation would have been as lengthy or costly as it ultimately was.

[6] Both parties submitted outlines of costs claiming partial indemnity costs from the other in the range of approximately $30,000. For the reasons stated above and in the all of the circumstances, I order the defendant to pay the plaintiff’s costs fixed at $7,500.00 inclusive of disbursements and HST.

Justice Sean F. Dunphy

Released: April 30, 2015