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

1The 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.

2I adopt the views expressed by Justice Myers in Fimax Investments Group Ltd. v. Grossman, 2015 ONSC 2048, at paragraphs 6 and 7.

3While 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.

4I 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.

5The 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.

6The 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.

7Taking 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