Court File and Parties

Court File No.: 55389/14-SR (St. Catharines) Date: 20160915

Superior Court of Justice – Ontario

Re: GAIL SALOMONS AS ESTATE TRUSTEE WITH A WILL IN THE ESTATE OF MERVYN SALOMONS (Plaintiff) v. 1071693 ONTARIO INC. o/a FROST REFRIGERATION & AIR-CONDITIONING INC. (Defendant)

Before: The Honourable Mr. Justice R.A. Lococo

Counsel: Bradley A. Troup, for the Plaintiff/responding party Sabatina N. Vallalli, for the Defendant/moving party

Heard: By written submissions dated August 23 to September 8, 2016

E N D O R S E M E N T – C O S T S

[1] Mervyn Salomons was laid off after 11 years of employment with the defendant, 1071693 Ontario Inc., operating as Frost Refrigeration & Air-Conditioning Inc. At that time, he was awaiting heart surgery. He died the following month. The estate trustee for Mr. Salomons’ estate brought an action against the defendant for wrongful dismissal. After the action had been set down for trial, the defendant brought a motion for summary judgment, seeking dismissal of the action.

[2] For oral reasons given in court on August 16, 2016, I dismissed the defendant’s motion for summary judgment, finding that there were a number of matters in dispute that would be appropriate to consider only in the context of a trial rather than on a summary judgment motion. The costs of the summary judgment motion were left to be determined based on written submissions.

[3] As the successful party on the motion, the plaintiff seeks costs of the motion, payable forthwith. In counsel’s submission, the plaintiff’s costs should be calculated on a substantial indemnity basis, arguing that the defendant acted unreasonably in bringing the motion. According to the plaintiff, it should have been abundantly clear to the defendant that its summary judgment motion was unlikely to succeed. As well, the plaintiff argued that it was unreasonable for the defendant to bring the summary judgment motion after the action had already been set down for trial without seeking leave to bring the motion, as required by rule 48.04(1) of the Rules of Civil Procedure.

[4] The successful party on a motion has a reasonable expectation of being awarded costs in the absence of special circumstances. See Bell Canada v. Olympia & York Developments Ltd. (1994), 17 O.R. (3d) 135 (C.A.) at para. 21. Unless the court is satisfied that a different order would be more just, costs of a contested motion are fixed and ordered payable within 30 days, as provided for in rule 57.03(1)(a) of the Rules of Civil Procedure. As noted by the Ontario Court of Appeal in Foulis v. Robinson (1978), 21 O.R. (2d) 769 (C.A.), Mortimer v. Cameron (1994), 17 O.R. (3d) 1 (C.A.), and McBride Metal Fabricating Corp. v. H & W Sales Co., [2002] O.J. No. 1536, 59 O.R. (3d) 97 (C.A.), costs are usually awarded on a partial indemnity basis. Substantial or full indemnity costs are awarded only in the “rare and exceptional case”, based on egregious or reprehensible conduct that warrants sanction against the offending party, McBride Metal Fabricating Corp. v. H & W Sales Co. at para. 38, or where the motion was brought unreasonably. See Empire Life Insurance Co. v. Krystal Holdings Inc., [2009] O.J. No. 1095 (S.C.) at para. 19.

[5] In this case, I have concluded that the defendant should be ordered to pay the plaintiff’s costs of the summary judgment motion, calculated on a partial indemnity basis and payable within 30 days. I see no sufficient justification for departure from the usual costs order for a contested motion.

[6] The defendant’s summary judgment motion raised some challenging issues relating to termination without cause and frustration of the employment contract. While the plaintiff was completely successful in defending the motion, I do not agree that the result was anything close to a foregone conclusion. In my view, consideration of those issues in the context of a summary judgment motion was consistent with the “culture shift” favouring consideration of proportionate alternatives to a conventional trial to resolve disputes, as indicated by the Supreme Court of Canada decision in Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, at para. 32.

[7] As well, I do not agree that because the defendant did not seek leave to bring the summary judgment motion, substantial indemnity costs are justified in this case. It was not disputed that the defendant gave notice of its intention of bringing the summary judgment motion before the plaintiff set the matter down for trial. In any case, at the motion hearing, the plaintiff argued for dismissal of the motion on its merits, rather than on the basis of procedural noncompliance.

[8] The defendant argued that the question of costs for this motion should be deferred to the trial judge. In the defendant’s submission, the merits of the case were not determined on the motion, and it was entirely possible that there could be a judgment in favour of the defendant at trial. However, the same argument would be open to many if not most unsuccessful moving parties on summary judgment motions. In my view, the circumstances of this case do not justify a departure from the usual result that costs be ordered payable within 30 days, as provided for in rule 57.03(1)(a).

[9] The plaintiff requested all-inclusive costs of $9,000 calculated on a substantial indemnity basis, supported by a costs outline. I considered the costs incurred by plaintiff’s counsel to be reasonable in the circumstances. Calculated on a partial indemnity basis, the plaintiff’s costs are fixed at $5,400, inclusive of disbursements and tax, payable by the defendant within 30 days.

The Honourable Mr. Justice R.A. Lococo

Released: September 15, 2016