CITATION: Marques v. Delmar International, 2016 ONSC 3993
COURT FILE NO.: CV-15-528398
DATE: 20160616
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
ANTONIO MARQUES Plaintiff
– and –
DELMAR INTERNATIONAL INC. Defendant
Alex C. Lucifero for the Plaintiff
Morris Cooper for the Defendant
HEARD: Written Submissions
COSTS ENDORSEMENT
DIAMOND J.:
[1] In my Endorsement released on May 26, 2016, absent an agreement between the parties, I asked for costs submissions to be exchanged and filed with my assistant pursuant to a fixed schedule. I have now received and reviewed the costs submissions of b parties.
[2] To begin, with respect to the amount owing to the plaintiff in accordance with my findings in the Endorsement, I agree with the calculations set out in the plaintiff’s submissions and find that the total damages owing to the plaintiff amount to $45,358.41.
[3] I also agree with the plaintiff that pre-judgment interest ought to be calculated at 1% from the date of his termination, and not the date of the issuance of his Statement of Claim.
[4] The plaintiff seeks costs of the action in the total amount of $13,418.32 (inclusive of the costs of his motion for summary judgment). This amount includes a substantial indemnity portion for the costs associated with the hearing of the motion itself, as the plaintiff relies upon an offer to settle dated May 21, 2016 and served upon the defendant on the morning of the hearing of his motion.
[5] Clearly, the provisions of Rule 49.10 of the Rules of Civil Procedure are not engaged in this case as the plaintiff’s offer to settle (the terms of which are difficult to break down, and were not surpassed by the amounts recovered in my Endorsement) was not served upon the defendant at least seven days before the hearing of the motion. As such, to the extent the plaintiff is entitled to any costs, those costs are to be awarded on a partial indemnity basis.
[6] Both parties blame each other for increased costs resulting from, inter alia, cross-examinations of the affiants. I originally adjourned the plaintiff’s motion to allow the defendant an opportunity to cross-examine the plaintiff upon his affidavit, a step which the plaintiff originally vigorously opposed. Once the motion was adjourned, the plaintiff exercised his own right to cross-examine the defendant’s affiant Mr. Hurley, which resulted in Mr. Hurley travelling from Montreal to Toronto. I agree with the defendant and do not recall any reference to Mr. Hurley’s evidence in the plaintiff’s factum or submissions before me, and it thus appears that the costs associated with Mr. Hurley’s cross-examination appear have been of little value, especially in light of the plaintiff’s original position that no cross-examinations were necessary.
[7] While I appreciate the defendant’s position that the plaintiff was effectively unsuccessful on the “major issue” of being entitled to the bonus payment, the plaintiff was nevertheless entitled to proceed with his motion for summary judgment as evidenced by the fact that he obtained a judgment more favorable than what was being offered by the defendant.
[8] As always, I am mindful that the Court is required to consider what is “fair and reasonable” in fixing costs with a view to balancing compensation of a successful party with a goal of fostering access of justice: Boucher v. Public Accountants Council (Ontario) 2004 CanLII 14579 (ON CA), 71 O.R. (3d) 291 (C.A.).
[9] Pursuant to Rule 57.01 of the Rules of Civil Procedure, the Court may consider the following factors when exercising its discretion to award costs:
(0.a) the principle of indemnity, including, where applicable, the experience of the lawyer for the party entitled to the costs as well as the rates charged and the hours spent by that lawyer;
(0.b) the amount of costs that an unsuccessful party could reasonably expect to pay in relation to the step in the proceeding for which costs are being fixed;
(a) the amount claimed and the amount recovered in the proceeding;
(b) the apportionment of liability;
(c) the complexity of the proceeding;
(d) the importance of the issues;
(e) the conduct of any party that tended to shorten or to lengthen unnecessarily the duration of the proceeding;
(f) whether any step in the proceeding was,
(i) improper, vexatious or unnecessary, or
(ii) taken through negligence, mistake or excessive caution;
(g) a party’s denial of or refusal to admit anything that should have been admitted;
(h) whether it is appropriate to award any costs or more than one set of costs where a party,
(i) commenced separate proceedings for claims that should have been made in one proceeding, or
(ii) in defending a proceeding separated unnecessarily from another party in the same interest or defended by a different lawyer; and
(i) any other matter relevant to the question of costs.
[10] Mindful of the result achieved, the reasonable expectations of the parties, the overarching principle of the proportionality and the hours claimed, in my view a just and fair result is to award the plaintiff his costs of the action on a partial indemnity basis fixed in the all-inclusive amount of $7,250.00 payable by the defendant forthwith.
Diamond J.
Released: June 16, 2016
CITATION: Marques v. Delmar International, 2016 ONSC 3993
COURT FILE NO.: CV-15-528398
DATE: 20160616
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
ANTONIO MARQUES Plaintiff
and
DELMAR INTERNATIONAL INC. Defendant
COSTS ENDORSEMENT
Diamond J.
Released: June 16, 2016