Markoulakis v. SNC-Lavalin Inc., 2015 ONSC 2995

COURT FILE NO.: CV-14-504720

DATE: 20150525

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Eftihios (Ed) Markoulakis, Plaintiff,

AND:

SNC-Lavalin Inc., Defendant,

BEFORE: Pollak J.

COUNSEL: Daniel A. Lublin, for the Plaintiff

Jeffrey P. Mitchell, for the Defendant

HEARD: November 14, 2014, December 17, 2014, February 6, 2015

COSTS ENDORSEMENT

[1] I have reviewed and considered the cost submissions of both parties. The Plaintiff submits that he was awarded 27 months of notice, equal to $326,808, which exceeded his Offer to Settle by $36,312 (3 months' pay).

[2] It is the Plaintiff's submission that his award exceeded his Offer and the Defendant's Offer. He should therefore be awarded his substantial indemnity costs of $28,477.36.

[3] As an alternate argument, the Plaintiff submits that the Court should adjourn the assessment of costs until the end of the notice period to determine if any mitigation income was earned during the balance of the notice period, when the Court can better assess whether the Plaintiff's award exceeded the Plaintiff's Offer. However, it is submitted that as this was a contested motion, the Plaintiff should receive his partial indemnity costs now.

[4] The Defendant relies on its Rule 49 Offer to Settle of August 21, 2014 for $232,000.

[5] The Plaintiff submits that his 27 month judgment exceeded the Defendant's Offer by $94,808 or an amount equal to approximately 8 months' pay.

[6] To refute the Plaintiff's submission, the Defendant submits that the award of the Court is not for a specific dollar amount in damages, as money earned by the Plaintiff during the notice period is to be deducted from the amount to be paid by the Defendant. It is therefore not possible to calculate the amount of the Plaintiff’s award, at this time.

[7] I agree that it is not possible at this time to determine whether any of the costs consequences of the Offers to Settle are applicable in this motion.

[8] When the extent of the Plaintiff’s mitigation efforts are known, if the parties are unable to agree on the appropriate costs award for this motion, this issue may be dealt with in addition to any other remaining issues in this Action by way of a further motion or at trial, as appropriate.

Pollak J.

Date: May 25, 2015