Court File and Parties

CITATION: Mazza v. Ornge Corporate Services Inc., 2016 ONSC 1390

COURT FILE No’s: CV-15-527629 & CV-13-472403

DATE: 20160225

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: CHRISTOPHER MAZZA, Plaintiff

AND:

ORNGE CORPORATE SERVICES INC. formerly known as ORNGE PEEL LTD., ORNGE and ORNGE GLOBAL REAL ESTATE INC., Defendants

BEFORE: S. F. Dunphy, J.

COUNSEL: Alfred Schorr, for the Plaintiff Jeffrey E. Goodman and Allison E. MacIsaac, for the Defendants Courtney Raphael, for the Defendants

HEARD: September 15, 2015

SUPPLEMENTARY ENDORSEMENT

[1] In my ruling of December 22, 2015 I granted the motion of the moving parties to dismiss the claims advanced by Dr. Mazza in one of the two proceedings pending between the parties and to consolidate the remainder into a single action. My ruling requested the parties to work together to come up with a consolidation order on consent or to make submissions to me on any issues arising and directed them to provide me with their submissions on costs. This has now been done and I am now ruling on those two matters. I shall continue to use the same defined terms as in my ruling of December 22, 2015.

[2] On the matter of the consolidation order, the parties have agreed on the form of order with one minor issue. The plaintiff in the Peel Action has proposed an Amended Consolidated Statement of Claim. This will be the surviving claim following my ruling of December 22, 2015. Dr. Mazza has taken no issue with the form of this draft pleading. The only issue he takes with the draft orders is the provision in paragraph 3 of each of the orders that Court approval be required of his Consolidated Statement of Defence (he also takes issue with the form of the orders in that they lack both the date and judge’s name – I assume that will be fixed when the order is taken out).

[3] I agree with Dr. Mazza. Should the Consolidated Statement of Defence when filed plead matters that are res judicata by reason of my ruling, that can be dealt with easily enough and the risk of costs consequences ought to dissuade any frivolous attempts to push the envelope in that direction. I see no reason for “pre-clearance” of the Consolidated Statement of Defence.

[4] I approve the draft form of consolidation orders subject to the deletion from paragraph 3 thereof of the words “to be approved by the court having regard to the reasons for decision of Justice Dunphy dated December 22, 2015”. The orders can be taken out and issued with today’s date. I trust I can rely on counsel to approve the drafts as to form and content so as to avoid the necessity of my appending the drafts to this endorsement.

[5] On the matter of costs, Dr. Mazza takes issue with the claim of the moving parties for substantial indemnity costs. He quite rightly points out the exceptional nature of such an award. I don’t view this as a case where it would be appropriate to award costs on a substantial indemnity basis. Dr. Mazza has certainly taken some steps that have introduced confusion, delay and duplication of costs. I refer in particular to the curious decision to start a second action as plaintiff in Newmarket instead of counterclaiming in the Peel Action and duplicating the claim on the long term incentive plan. The Moving Parties have had their own issues including the confusion caused by the very narrowly-focused factum filed on the motion for summary judgment.

[6] In all of the circumstances, I think that partial indemnity costs is the appropriate scale to be applied here and I so order.

[7] The parties are quite far apart on quantum. On a partial indemnity basis, the moving parties seek almost $40,000. Dr. Mazza pleads that he has been left a financially ruined man by the events giving rise to these proceedings. His counsel has provided an Outline of Costs that does not include the actual hearing of the motion and the supplementary facta called for at that hearing. To that point, Dr. Mazza’s counsel had an outline of costs of $17,335.85 including fees, HST and disbursements. I am assuming that that figure would be closer to $25,000 once an allowance for attending at the motion and filing supplementary argument is factored in. Mr. Schorr represented Dr. Mazza without a junior at the hearing while the moving parties had two counsel attending plus others from another firm observing and advising (the costs of the latter not being claimed here). It is apparent to me that the moving parties have erred on the side of having more rather than less when it comes to the hours and personnel devoted to this motion.

[8] Dr. Mazza fairly points out the confusion caused by the factum of the moving parties that focused almost exclusively on the issue of the release and barely addressed the common employer issue and the contractual context. This too suggests that a discount of some level from the hours claimed ought to be considered.

[9] It is clear to me that Dr. Mazza is doing the best he can do to defend this case having regard to his limited means. I do not have anything like full disclosure of Dr. Mazza’s current financial circumstances before me, but I am prepared to accept that loss of a very high-level position under the glare of adverse publicity has done nothing to improve his finances or prospects of future earnings. Mr. Schorr has been more than reasonable in his conduct of the case for the period of time I have been able to observe. Consents have been reasonably given and there have been no “scorched earth” tactics. The court system, Dr. Mazza and even the moving parties will be better off with Dr. Mazza represented by counsel rather than being forced by economic circumstances to represent himself.

[10] In all of the circumstances, I am exercising my discretion to give greater weight to the expectations of the losing party than I do to the strict number of hours worked and claimed rates. I am awarding the moving parties their costs in the amount of $30,000 (including HST and disbursements).

[11] The costs I have awarded relate almost exclusively to the moving parties’ motion for summary judgment dismissing the claims against them in the Mazza Action. There was never any significant dispute between the parties on the consolidation issue and that matter has been resolved quite simply and pragmatically. I am therefore ordering these costs to be payable in respect of the judgment dismissing the Mazza Action and they should be reflected in the formal order taken out in that proceeding. As costs on a judgment dismissing the Mazza Action, there is no need to make them payable forthwith as requested. They are immediately payable in any event subject only to any applicable stay under the Rules.

S. F. Dunphy, J.

Date: February 25, 2016