ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
MARK URBANSKI Plaintiff
– and –
THE CORPORATION OF THE TOWNSHIP OF RAMARA Defendant
Carol S. VandenHoek and Trent Johnson, for the Plaintiff
David G. Boghosian and Laura M. Day, for the Defendant
HEARD: By written submissions
REASONS FOR DECISION ON COSTS
DiTOMASO J.
INTRODUCTION
1The plaintiff, Mr. Urbanski, brought an unsuccessful summary judgment motion in his wrongful dismissal action. I found that there were genuine issues requiring a trial and that there were too many evidentiary conflicts which could not be resolved at the motion stage. Further, there were significant credibility issues involving numerous witnesses, which were unresolvable on the motion. Ultimately, I found that the court could not make the necessary findings of fact or apply the legal principles to reach a just and fair determination on this motion for summary judgment. The case was complex; the issues were intertwined and the action must proceed to trial for the determination of those issues: see para. 89, Reasons.
2Accordingly, Mr. Urbanski’s motion for summary judgment was dismissed.
3The parties agreed that costs would be determined by way of written submissions.
4I have received and reviewed those submissions, as well as my Reasons for Decision released January 6, 2016.
POSITIONS OF THE PARTIES
Position of Mr. Urbanski
5Mr. Urbanski was the unsuccessful moving party. He submits that costs of the motion ought to be reserved to the trial judge. Much of the work on the motion will be used at trial. The amount of effort spent on affidavits, cross-examinations, transcripts, undertakings, factums, and the summary judgment motion itself, are not costs thrown away by either party as they will form part of the evidentiary record for trial. It is submitted that all of the efforts spent to-date will eliminate the need for examinations for discovery (or substantially limit them) and will also expedite the hearing of the trial and amount of time required for the trial.
6Further, the determination of costs of this summary judgment motion should be reserved to the trial judge. The fundamental objective of access to justice will not be met if a significant costs award is made against Mr. Urbanski which prevents this case from proceeding to trial.
7In the alternative, the plaintiff submits that should costs be awarded at this stage, the defendant, The Corporation of the Township of Ramara, should be awarded no more than partial indemnity costs incurred by Mr. Urbanski to accord with the reasonable expectations of the plaintiff.
Position of the Defendant, The Corporation of the Township of Ramara
8The Township was the successful party on this motion and seeks blended costs on a substantial indemnity/partial indemnity scale in the amount of $88,332.37. It is submitted that costs follow the event. Mr. Urbanski lost on every single issue raised on the motion, and costs should be awarded at this stage.
9It is submitted that the bringing of the summary judgment motion in this case was completely inappropriate, a fact which Mr. Urbanski knew or ought to have known well in advance of proceeding with the motion. The Township was nevertheless required to “put its best foot forward” or risk losing. The Township was compelled to respond appropriately given the gravity of the allegations and the detrimental consequences of a finding adverse to the financial well-being of the Township. In other words, failing to respond to each and every allegation of Mr. Urbanski could have had detrimental consequences for the municipality. Consequently, the Township seeks costs in the amount of $88,332.31, payable by Mr. Urbanski in 30 days.
ANALYSIS
10Costs are in the discretion of the court: see s. 131, Courts of Justice Act, and Rule 57.01 of the Rules of Civil Procedure. Generally, costs follow the event and are payable within 30 days on a partial indemnity basis. However, in the appropriate circumstances, discretion can be exercised by the court to depart from this general rule.
11The Township relies upon Bell Expressvu Limited Partnership v. Pieckenhagen, [2013] O.J. No. 101. This was a case that involved large corporations and multiple defendants, both personal and corporate. In addition to the motion for summary judgment in Bell Expressvu, the defendants also brought motions to set aside the Anton Pillar order granted on an ex parte basis, and to exclude evidence obtained pursuant to this order. All of the motions brought by the defendants were dismissed and costs were considered by the court.
12In Expressvu, it was held that there was no good reason to depart from the “normative approach” where costs follow the event and are payable forthwith. Costs awarded in Bell Expressvu were in the amount of $363,488.01, payable within 30 days.
13Needless to say, Bell Expressvu was not a wrongful dismissal case involving a singular personal plaintiff and a municipal employer, such as the case before this court. I find that the Bell Expressvu case is distinguishable on its facts from the case at bar.
14Rather, I am more persuaded by the authorities cited by Mr. Urbanski’s counsel, which I find are more applicable to the facts of our case.
15Mr. Urbanski relies on the decision of K.L. Campbell J. in Thorne v. Hudson’s Bay Company, [2011] O.J. No. 4458. In Thorne, as in our case, the defendant had been successful in resisting the plaintiff’s summary judgment motion. Justice Campbell held that ordinarily such success would result in a costs award in favour of the defendant. However, in the circumstances of the Thorne case, he reserved the issue of costs in relation to the motion to the trial judge.
16Justice Campbell held there was a concession that the plaintiff was wrongfully dismissed without cause and that eventually, there would have to be damages paid to the plaintiff. At para. 35, Justice Campbell found that it made little sense to require the unemployed plaintiff, who had been wrongfully dismissed by the defendant, to immediately pay the defendant’s costs in relation to the motion.
17The reasoning of Justice Campbell in Thorne was adopted by V.R. Chiappetta J. in Anderson v. Cardinal Health Canada Inc., [2013] O.J. No. 3706. In Anderson, although the defendant successfully defended the plaintiff’s motion for summary judgment, Justice Chiappetta reserved the issue of costs in relation to the motion to the trial judge. At para. 20, she held:
In my view, it is appropriate to reserve the costs of this motion to the trial judge, as opposed to ordering an unemployed plaintiff to forthwith pay the defendant’s costs, only to receive a damage award from the defendant a few months later. As Justice Campbell ordered in Thorne at para. 35, I reserve the costs in connection with this summary judgment motion to the trial judge.
18While it is less clear in Mr. Urbanski’s case that he will be the recipient of a monetary award from the municipality at trial, nevertheless, he is an unemployed plaintiff in a wrongful dismissal case, with many issues to be determined at trial. He should not be deprived of access to justice by being compelled to pay costs claimed in excess of $88,000 at this point in time. There are issues as to whether or not a blended costs approach applies at all in this case, and whether the Township’s Bill of Costs triggers Rule 49 costs consequences. While I have my views on these issues, I feel it appropriate to reserve the costs of Mr. Urbanski’s summary judgment motion to the trial judge.
19I agree with the submissions of plaintiff’s counsel that all of the time and effort spent on the affidavits, cross-examinations, transcripts, undertakings, factums and the summary judgment motion itself are not costs thrown away by either party and they will form part of the evidentiary record for trial. I agree that all efforts spent to-date would eliminate the need for examinations for discovery (or substantially limit them) and would expedite the hearing of the trial and the amount of time required for the trial. I further agree that access to justice will not be met if a significant costs award is made against Mr. Urbanski now which prevents this case from proceeding to trial. I further agree the approach taken by Justice Campbell in Thorne and Justice Chiappetta in Anderson, where they also decided to reserve the issue of costs to the trial judge.
DISPOSITION
20For these reasons, I find that it is appropriate to reserve the costs of the summary judgment motion to the trial judge.
DiTOMASO J.
Released: March 11, 2016