Costs ENDORSEMENT
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Bruce Rodgers, Plaintiff
AND:
CEVA Freight Canada Corp., Defendant
BEFORE: G. E. Taylor
COUNSEL: David Wires and Samantha Wu, Counsel for the Plaintiff
Neal B. Sommer, Counsel for the Defendant
HEARD: September 30 and October 1, 2014
Costs ENDORSEMENT
1On November 19, 2014, I released my Reasons for Judgment following the trial of this action for wrongful termination of employment. In my Reasons I requested written submissions with respect to costs. I have received the plaintiff’s written submissions but I have received no submissions from the defendant although the time for delivery of those submissions has expired.
2After a two-day trial in which the only witness was the plaintiff, I awarded judgment in favour of the plaintiff in the amount of $345,985 which was based on 14 months’ notice.
3The plaintiff seeks interest on the damage award in the amount of $10,770.09. The plaintiff also seeks an award of costs including disbursements and HST totaling $101,241.41.
4The plaintiff is entitled to interest on the damage award in the amount of $10,770.09.
5Although there were some nuances to this case, it was not overly complicated. Much of the evidence at trial was introduced by way of the plaintiff’s Request to Admit and the defendant’s Response. By the time of trial, the only significant dispute between the parties was the notice to which the plaintiff was entitled. He was the most senior employee of the defendant in Canada but his length of service was slightly less than three years. There were fewer than 20 documents referred to at the trial in addition to the Request to Admit and the Response to Request to Admit.
6The total number of hours recorded on this file by three lawyers representing the plaintiff is 407. This is a staggering number of hours to be spent on a relatively straightforward file. This is the equivalent of more than ten 40 hour weeks devoted to this case over a period of approximately 2 ½ years between the date of termination and the trial.
7The defendant played “hardball” up until the date of the trial. But a defendant is entitled to require a plaintiff to prove his case. That should not expose defendants to an exorbitant claim for costs. This case was important to the plaintiff and I am sure he expected his counsel to be well prepared. However, I must also take into consideration what the defendant could reasonably expect to be required to pay in costs upon being unsuccessful at the trial.
8I do not intend to review in detail the time recorded on various steps in this litigation. I am not conducting an assessment.
9The Statement of Claim was issued on November 21, 2012 and contained 36 paragraphs. Approximately 11 hours of a lawyer’s time was spent preparing the Statement of Claim. In my view this is a generous, although not unreasonable, amount of time spent preparing a Statement of Claim in a case like the present. However, thereafter, 67 more hours were spent to amend the Statement of Claim. The amendment appears to be to add two paragraphs to the Statement of Claim, one of which is largely a repetition of another paragraph. I find it is simply not reasonable to expend this amount of time on an uncomplicated amendment to a pleading.
10From what I could determine, based on a review of the time dockets, there did not appear to have been examinations for discovery. Even so, more than 35 hours were spent relating to discovery or discovery of documents. Slightly less than 45 hours was spent preparing for and attending at the pretrial conference. Finally, after excluding the time spent attending at the actual trial, the dockets indicate that two lawyers spent approximately 176 hours in preparation for trial. This is in excess of four 40 hour weeks preparing for a two-day trial. Regrettably, I must conclude that plaintiff’s counsel recorded excessive and unreasonable amounts of time throughout the entire proceeding, with the exception of the trial. I find that the trial was conducted efficiently and effectively.
11The plaintiff made an Offer to Settle dated September 23, 2013 for $400,000 inclusive of prejudgment interest and costs. This offer is of course less than the judgment at trial and I do not understand the plaintiff to suggest that the award of costs should be anything other than on the partial indemnity basis.
12I was not referred to any authority or agreement between counsel that the costs of a mediation are costs to be recovered from the unsuccessful party. Accordingly, I do not propose to include the cost of mediation in the amount of costs to be paid by the defendant.
13My task is to determine an amount to be awarded to the plaintiff that is reasonable. The principle of indemnity is an important factor but it is not to be given undue weight. I have already alluded to the principle that costs should be an amount that the unsuccessful party could reasonably have anticipated to pay. The amount of the judgment is an important factor in fixing the amount of costs but so is the relatively uncomplicated nature of this lawsuit.
14Taking these factors into consideration, it is my view that the fair and reasonable amounts at which to fix the plaintiff’s costs of this proceeding are $40,000 for fees and $2000 for disbursements, both of which amounts are inclusive of HST. Accordingly, the defendant is to pay the plaintiff’s costs of this action on a partial indemnity basis totaling $42,000, forthwith.
G. E. Taylor
Date: January 5, 2015