Roberts v ZoomerMedia Limited, 2016 ONSC 2426

Bill Roberts v. Zoomermedia Limited, 2016 ONSC 2426

Court File and Parties

COURT FILE NO.: CV-12-450944 DATE: 20160412 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

BILL ROBERTS Plaintiff – and – ZOOMERMEDIA LIMITED Defendant

COUNSEL: James Renihan and Joseph Morrison for the Plaintiff Julie A. O’Donnell for the Defendant

HEARD: In writing

PERELL, J.

Reasons for Decision - Costs

1This is a cost decision in a dispute about an employment contract. The Plaintiff, Bill Roberts sued Zoomermedia Limited for $3.6 million and eventually brought a summary judgment motion seeking an award of $987,173.32. Zoomermedia’s defence was that it had already discharged its contractual and common law obligations to Mr. Roberts and owed him nothing. I granted Mr. Roberts a judgment of $672,452.96. See Roberts v. ZoomerMedia Limited, 2016 ONSC 1567.

2Mr. Roberts now claims costs of $110,309.25, on a substantial indemnity basis, which scale of costs, it justifies on the basis that Zoomermedia’s defence was unreasonable and unsupportable.

3Zoomermedia submits that there is no basis for a punitive award, and using the metric of Mr. Robert’s original claim compared with his recovery (a 19% ratio), Zoomermedia submits that it had a substantial success and that Mr. Robert’s costs on a partial indemnity scale should be reduced.

4It further submits that the Mr. Robert’s claim for costs is excessive because the matter was over-lawyered by a team approach and there were redundant or duplicated costs incurred by Mr. Robert’s decision to retain Lax O’Sullivan Lisus Gottlieb LLP, a counsel firm, to argue the summary judgment motion instead of employing his lawyers of record Mathews Dinsdale & Clark LLP.

5Without revealing its own dockets for the action, Zoomermedia submits that the appropriate costs award would be $35.000, all-inclusive.

6In my opinion, there is no basis to award costs on a substantial indemnity basis.

7Mr. Roberts, however, was the successful party, and he is entitled to costs on a partial indemnity basis in accordance with the well-known factors that guide a court in the exercise of its discretion.

8Mr. Roberts was the successful party. As the unsuccessful party, Zoomermedia should pay Mr. Roberts’ costs on a partial indemnity basis. A $672,452.96 judgment is a substantial and substantive judgment. Mr. Robert’s success is not a 19% success any more than Zoomermedia’s loss is a 100% loss.

9Mr. Roberts is the successful party and there is no reason to discount his entitlement to costs because of Zoomermedia’s success in reducing the judgment from the amount originally pleaded. There are, however, reasons to reduce the quantum of the claim for costs.

10In the circumstances of this case, it was reasonable for Mr. Roberts to have two counsel including Mr. Lax O’Sullivan Lisus Gottlieb LLP but to the extent that this decision entailed some overlapping or redundant work, it falls outside the recovery for what used to be called party and party costs.

11There does also appear to be some over-lawyering on the file, but not so much as Zoomermedia submits, and Zoomermedia’s arguments about excessive legal charges would have much more traction had its lawyers disclosed their partial indemnity charges. The overriding principle in awarding partial indemnity costs is the reasonable expectations of the unsuccessful party: Boucher v. Public Accountants Council for the Province of Ontario, [2004] O.J. No. 2634.

12In my opinion, the appropriate costs award in this case is $80,000, all-inclusive.

Perell, J.