CITATION: Lorion v. 1163957799, 2015 ONSC 3420
COURT FILE NO.: 14-61896
DATE: 2015/05/29
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Kayla Lorion, Plaintiff
AND:
1163957799 Quebec Inc. et al, Defendants
BEFORE: Justice Patrick Smith
COUNSEL: Cheryl Letourneau, Counsel, for the Plaintiff
Lawrence Greenspon, Counsel, for the Defendant 1163957799 Quebec Inc., c.o.b. as Calypso Park Inc. and Calypso Theme Park
HEARD: via written submissions
ENDORSEMENT
[1] The plaintiff, Kayla Lorion (“Lorion”), alleged in her Statement of Claim that she was sexually assaulted by the defendant, Curtis Strudwick.
[2] Curtis Strudwick was employed by the defendant 11663957799 Quebec Inc., carry on business as Calypso Park Inc. and Calypso Theme Park (“Calypso”).
[3] In her Statement of Claim, Lorion claimed damages against the defendants for sexual harassment, sexual assault, assault, battery, false imprisonment and intentional and/or negligent infliction of mental suffering.
[4] The defendant Calypso Park Inc. and Calypso Theme Park (“Calypso”) moved for an order striking out the plaintiff’s pleadings on the ground that they disclose no reasonable cause of action and for an order dismissing the action.
[5] Three issues were addressed on the motion:
Was the tort of sexual harassment a recognized cause of action in the Province of Ontario?
Did the plaintiff’s Statement of Claim disclose a reasonable cause of action in vicarious liability against the Calypso?
Did the plaintiff’s Statement of Claim disclose a reasonable cause of action in negligence against Calypso?
[6] The defendant’s motion was dismissed save and except for the plaintiff’s claims with respect to vicarious liability for sexual harassment which were ordered struck.
[7] In paragraph 68 of my reasons I asked that the parties file written submissions with respect to the issue of costs. I have now received and reviewed those submissions.
General Principles of Costs
[8] The general rule is that costs should follow the event. As stated in Orkin, The Law of Costs:
In general, it can be said that when a motion is properly brought costs should be awarded to the moving party, if successful, otherwise to the responding party subject always to the discretion of the judge of judicial officer. (Mark Orkin, The Law of Costs, 2nd ed., vol. II, Canada Law Book, Section 402 at page 4-1.)
[9] In Fong et al v. Chan et al, (1999), 1999 2052 (ON CA), 46 O.R. (3d) 330, the Ontario Court of Appeal set out three fundamental purposes of modern cost rules:
to indemnify successful litigants for the cost of litigation;
to encourage settlements; and
to discourage and sanction inappropriate behaviour by litigants.
[10] An award of costs is a matter in the discretion of the court by virtue of s. 131(1) of the Courts of Justice Act, which provides:
Subject to the provisions of an Act or rules of court, the costs of and incidental to a proceeding or a step in the proceeding are in the discretion of the court, and the court may determine by whom and to what extent costs shall be paid.
[11] Rule 57 of the Rules of Civil Procedure sets out the factors to be considered by a court when exercising its discretion under s. 131 of the Courts of Justice Act. The rule places emphasis on the result in the proceeding and any written offer to settle when considering the other factors enumerated in the rule.
[12] The text of rule 57.01(1) provides as follows:
57.01 (1) Factors in discretion - In exercising its discretion under section 131 of the Courts of Justice Act to award costs, the court may consider, in addition to the result in the proceeding and any offer to settle or to contribute made in writing,
• the amount claimed and the amount recovered in the proceeding;
• the apportionment of liability;
• the complexity of the proceeding;
• the importance of the issues;
• the conduct of any party that tended to shorten or lengthen unnecessarily the duration of the proceeding;
• whether any step in the proceeding was,
• improper, vexatious or unnecessary, or
• taken through negligence, mistake or excessive caution;
• a party’s denial of or refusal to admit anything that should have been admitted;
• whether it is appropriate to award any costs or more than one set of costs where a party,
o commenced separate proceedings for claims that should have been made in one proceeding; or
o in defending a proceeding separated unnecessarily from another party in the same interest or defended by a different solicitor; and
• any other matter relevant to the question of costs.
The Positions of the Parties
[13] The plaintiff submits that, because she was predominantly successful in opposing the motion to strike. She submits that an award of costs on a substantial indemnity basis the amount of $7,155.75 is warranted. In the alternative, partial indemnity costs of $$5,179.75 should be allowed.
[14] Specifically, the plaintiff maintains, inter alia, that “The moving Party was not successful in having the claims for vicarious liability for sexual assault as well as negligence struck.”
[15] The Defendant argues that “Calypso was successful in having the references to the tort of vicarious liability for sexual harassment struck from the pleadings, simplifying the action. Calypso was not successful in striking the claims for vicarious liability for sexual assault and negligence struck. As the motion had divided success, Calypso takes the position that no costs should be awarded on the motion.”
Disposition
[16] I agree that success was mixed on the motion, however, on balance the plaintiff was more successful than the defendant and is therefore entitled to a reduced award of costs.
[17] Costs are awarded to the plaintiff fixed in the amount of $3,000.00 payable forthwith.
Patrick Smith J.
Date: May 29, 2015