ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CV-13-493186
COURT FILE NO.: CV-14-496075
DATE: 20150720
BETWEEN:
LORENE LOPEZ
Plaintiff
– and –
DR. M. DOURIS DENTISTRY PROFESSIONAL CORPORATION
Defendant
AND BETWEEN:
DR. M. DOURIS DENTISTRY PROFESSIONAL CORPORATION
Plaintiff by Counterclaim
– and –
LORENE LOPEZ and CLIVE ESTY
Defendants by Counterclaim
Melanie Williams for the Defendant Dr. M. Douris Dentistry Professional Corporation
Parisima Zandi for Clive Esty, Defendant by Counterclaim
AND BETWEEN:
MARILYN VEGA
Plaintiff
– and –
DR. MICHAEL DOURIS
Defendant
AND BETWEEN:
DR. MICHAEL DOURIS
Plaintiff by Counterclaim
– and –
MARILYN VEGA and CLIVE ESTY
Defendants by Counterclaim
Melanie Williams for the Defendant, Plaintiff by Counterclaim, Dr. Michael Douris
Parisima Zandi for Clive Esty, Defendant by Counterclaim
HEARD: In writing
PERELL, J.
REASONS FOR DECISION - COSTS
[1] This is a costs decision after summary judgment motions in two actions.
[2] The background is that Dr. Clive Esty, a dentist, was sued in counterclaims in two actions. In the first action, he was sued by Dr. M. Douris Dentistry Professional Corporation, and in the second action, by Dr. Michael Douris, who is also a dentist.
[3] In the first action, the Plaintiff Lorene Lopez sued Dr. M. Douris Dentistry Professional Corporation for damages for wrongful dismissal, and in turn, Dr. M. Douris Dentistry Professional Corporation counterclaimed and sued Ms. Lopez, who formerly was an employee of Dr. Esty’s, for slander, and it joined Dr. Esty to the counterclaim to sue him for: (a) damages for misrepresentation and breach of contract; and (b) an indemnity for any amounts it was obliged to pay Ms. Lopez. The claims for misrepresentation, breach of contract, and for indemnification, arose out of a contract between Dr. Douris and Dr. Esty under which Dr. Esty sold his dental practice to Dr. Douris.
[4] The situation was similar in the second action. In this action, the Plaintiff Marilyn Vega, another former employee of Dr. Esty’s, sued Dr. Michael Douris for wrongful dismissal. Dr. Douris, in turn, counterclaimed against Ms. Vega for defamation, and he joined Dr. Esty to the counterclaim to sue him for: (a) damages for misrepresentation and breach of contract; and (b) an indemnity for any amounts he was obliged to pay Ms. Vega. The claims for misrepresentation, breach of contract, and for indemnification, once again, arose out of the contract between Dr. Douris and Dr. Esty.
[5] Dr. Esty moved for summary judgments in both actions to have the counterclaims dismissed. I granted the motions; see Lopez v. Dr. M. Douris Dentistry Professional Corporation, 2015 ONSC 3675.
[6] Dr. Esty claims costs on a substantial indemnity basis for the summary judgment motion and costs on a partial indemnity basis for the other steps in the proceeding. He requests costs of $27,901.79, all inclusive, for the first action (the Lopez action) and $9,358.56, all inclusive, for the second action (the Vega action).
[7] Dr. Douris and Dr. M. Douris Dentistry Professional Corporation submit that a significant portion of the legal work could and should have been delegated to a paralegal and that the Vega action, in particular, should have been much less expensive because of the efficiencies achieved by joining the summary judgment motions that raised the same or similar issues. They submit that the appropriate awards should be $12,500, all inclusive, for the Lopez action and $2,500, all inclusive, for the Vega action, which awards, they argue, would better reflect what would have been within the reasonable expectations of the unsuccessful party. See Boucher v. Public Accountants Council for the Province of Ontario (2004), 2004 14579 (ON CA), 71 O.R. (3d) 291 (C.A.).
[8] Dr. Esty claims costs on a substantial basis on two grounds; i.e., first because it is submitted that the counterclaims were totally devoid of merit and without any chance of success; and second, because Dr. Esty served two unaccepted offers to settle. One offer to settle was to settle the actions before trial and the second offer was to settle the summary judgment motion at two-thirds of partial indemnity costs. In my opinion, the costs should be awarded on a partial indemnity basis. Apart from the offers to settle, there is no reason to make a punitive costs award, and the second offer to settle was a tactical offer made by a defendant after much of the costs for the summary judgment were already sunk. Dr. Douris and Dr. M. Douris Dentistry Professional Corporation were entitled to their day in court, but as the unsuccessful party they shall be ordered to pay costs on a partial indemnity scale.
[9] As it happens, the substantial indemnity claims of Dr. Esty were quite reasonable, perhaps because of the efficiencies of hearing the motions together, and thus the adjustment to a partial indemnity scale is relatively modest.
[10] Having reviewed Dr. Esty’s bills of costs and considered the parties’ costs submissions, I award Dr. Esty $23,250, all inclusive, for the Lopez action and $8,250 all inclusive, for the Vega action.
Perell, J.
Released: July 20, 2015
COURT FILE NO.: CV-13-493186
COURT FILE NO.: CV-14-496075
DATE: 20150720
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
LORENE LOPEZ
Plaintiff
– and –
DR. M. DOURIS DENTISTRY PROFESSIONAL CORPORATION
Defendant
AND BETWEEN:
DR. M. DOURIS DENTISTRY PROFESSIONAL CORPORATION
Plaintiff by Counterclaim
– and –
LORENE LOPEZ and CLIVE ESTY
Defendants by Counterclaim
AND BETWEEN:
MARILYN VEGA
Plaintiff
– and –
DR. MICHAEL DOURIS
Defendant
AND BETWEEN:
DR. MICHAEL DOURIS
Plaintiff by Counterclaim
– and –
MARILYN VEGA AND CLIVE ESTY
Defendants by Counterclaim
REASONS FOR DECISION - COSTS
PERELL J.
Released: July 20, 2015