ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CV-15-527364
DATE: 20151223
BETWEEN:
AGNELLO PAES
Plaintiff
– and –
CASCADES CANADA ULC c.o.b. as CASCADES TISSUE GROUP TORONTO
Defendant
Bruce Baron & William Levitt, for the Plaintiff
Geoff Breen and Kristin Taylor, for the Defendant
HEARD: December 21, 2015
M. D. FAIETA, j
COSTS decision
[1] The Plaintiff seeks its costs of $35,000.00 on a substantial indemnity basis following a summary judgment motion where this Court determined that he was entitled to 20.8 months reasonable notice following his termination. Based on an annual salary of about $62,000.00, this award amounts to about $108,000.00. The Defendant submits that costs of $15,000.00 on a partial indemnity basis should be awarded.
[2] I adopt the views expressed by Justice Myers in Fimax Investments Group Ltd. v. Grossman, 2015 ONSC 2048, at paragraphs 6 and 7.
[3] While the Plaintiff’s Offer to Settle dated November 12, 2015 (that offered a settlement based on 20 months reasonable notice) did not comply with Rule 49, it nonetheless is a factor to be considered in assessing costs under Rule 57.01.
[4] I do not agree that Defendant’s conduct was “unreasonable, unnecessary, approaching deceptive, and not in good faith”. An award of substantial indemnity costs is not justified in these circumstances.
[5] The Plaintiff submits that Mr. Baron agreed to reduce his hourly rate from $425/hour to $295/hour and that the Defendant should not benefit from that reduction. I refuse to award costs based on a notional hourly rate of $425.00 as it would result in an award of substantial or full indemnity costs where the circumstances do not justify such result. See 790668 Ontario Inc. v. D'Andrea Management Inc., [2015] O.J. No. 4018, 2015 ONCA 557, at paras. 22-23.
[6] The Ontario Court of Appeal in Davies v. Clarington (Municipality), 2009 ONCA 722, 100 O.R. (3d) 66, stated that the amount of a costs award should reflect what an unsuccessful party could reasonably expect to pay rather than the exact amount of costs actually incurred by the successful party.
[7] Taking into account the considerations under Rule 57.01, I order that the Defendant pay the sum of $25,000 in costs, inclusive of taxes and disbursements, to the Plaintiff. Given that the Defendant’s partial indemnity costs were about $17,000.00 primarily comprised of the billings of a 2011 Call to the Bar (as opposed to the Plaintiff’s lawyers who were 1999 and 2000 Calls to the Bar), I find that the above award of costs ought to have been within the Defendant’s reasonable contemplation.
Mr. Justice M. D. Faieta
Released: December 23, 2015
COURT FILE NO.: CV-15-527364
DATE: 20151223
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
AGNELLO PAES
Plaintiff
– and –
CASCADES CANADA ULC c.o.b. as CASCADES TISSUE GROUP TORONTO
Defendant
COSTS DECISION
Mr. Justice M. D. Faieta
Released: December 23, 2015