Court File and Parties

Citation: Sinnathamby v. The Chesterfield Shop Limited, 2017 ONSC 106 Court File No.: CV-11-103858 Date: 2017-01-09 Superior Court of Justice - Ontario

Re: Sucheta Sinnathamby, Plaintiff And: The Chesterfield Shop Limited, Defendant

Before: The Honourable Mr. Justice R.E. Charney

Counsel: Justin P. Baichoo, Counsel for the Plaintiff Phil White, Counsel for the Defendant

Heard: In-Writing

Endorsement

[1] On November 22, 2016 I issued reasons granting the plaintiff’s motion for summary judgment and awarded damages in her favour against the defendant in the amount of $20,904 for wrongful dismissal (see 2016 ONSC 6966).

[2] The parties have been unable to agree on costs, and have filed submissions pursuant to para. 133 of my decision.

[3] The plaintiff claims costs on a substantial indemnity basis totalling $67,959 and on a partial indemnity basis totalling $57,082. The plaintiff’s costs are divided into three categories: (i) costs of the plaintiff’s motion to strike the defendant’s affidavits filed contrary to Rule 39.02(2); (ii) costs of the motion for summary judgment; and (iii) costs of the action.

[4] I note, at the outset, that neither party made an offer to settle that would bring the costs consequences of Rule 49.10 into play.

[5] The plaintiff argues that the conduct of the defendant merits a costs award on a substantial indemnity basis because the defendant made false allegations that the plaintiff was dismissed for cause and refused to agree on a timetable for the steps leading up to the motion for summary judgment.

[6] Based on my review of the record I do not find that the defendant’s conduct in relation to the motion for summary judgment merits an award of costs on a substantial indemnity basis. As I indicated in my decision at paras. 127 and 128, while I concluded the defendant’s decision to terminate the plaintiff was disproportionate, the defendant was, from the outset and throughout the litigation, honest about its reason for dismissing the plaintiff. The fact that the defendant genuinely thought that it had sufficient grounds to terminate for cause in the face of the plaintiff’s refusal to provide a doctor’s note in a timely manner does not merit an award of substantial indemnity costs. A party should not be required to pay substantial indemnity costs simply because it advances a legal position that is ultimately rejected by the court. Were it otherwise, substantial indemnity costs would be routinely awarded.

[7] Similarly, having reviewed the correspondence between counsel I am not prepared to assign responsibility for the failure to reach an agreement on a timetable for the motion on the defendant. The plaintiff’s position that the defendant should agree to a timetable “that is not contingent on anything” was, in my view, unreasonable. In addition, the plaintiff failed to attend for a scheduled cross-examination, resulting in unnecessarily increased costs for the defendant.

[8] The plaintiff argues that the defendant’s conduct in trying to file supplementary affidavits without the consent of the plaintiff or leave of the court contrary to Rule 39.02(2) forced the plaintiff to go to the additional expense of bringing its own motion to strike the affidavits (see paras. 47 to 58 of my decision). In my decision I held (at para. 48): “In the interests of justice I will consider the admissibility of these affidavits notwithstanding the defendant’s failure to seek leave in accordance with the rules, but there will be costs consequences for the defendant’s failure to bring a motion for leave.”

[9] The defendant sought to file two supplementary affidavits following cross-examination of the plaintiff. One affidavit was admitted, one was not. The defendant’s failure to bring a motion to file these additional affidavits in the absence of the plaintiff’s consent, as required by Rule 39.02(2), did increase the time required to hear the motion for summary judgment and put the plaintiff to an expense she should not have borne. Accordingly, I find that the defendant should pay the plaintiff’s costs for these motions notwithstanding the defendant’s partial success. Given that the defendant was partially successful, cost of that motion should be paid on a partial indemnity basis of $3,000.

[10] The defendant takes the position that the amount of costs claimed by the plaintiff with respect to the motion for summary judgment is unreasonable and disproportionate to the amount recovered in the proceeding. The plaintiff claimed $135,000 but was only awarded $20,904, an amount within the monetary jurisdiction of the Small Claims Court ($25,000). Rule 57.05(1) provides that if a plaintiff recovers an amount within the monetary jurisdiction of the Small Claims Court the court may order that the plaintiff not recover any costs.

[11] The $20,904 damages award was based on ten months notice reduced to six months for failure to mitigate damages. Even if the plaintiff’s notice period had not been reduced as a result of her failure to mitigate she would have only been awarded $34,840, an amount within the monetary limits of the Simplified Procedure established by Rule 76 ($100,000). Rule 76.13(3) provides that a plaintiff who is awarded a monetary judgment of $100,000 or less:

[S]hall not recover any costs unless,

(a) the action was proceeding under this Rule [76] at the commencement of the trial; or

(b) the court is satisfied that it was reasonable for the plaintiff,

(i) to have commenced and continued the action under the ordinary procedure,…

[12] The defendant argues that it was unreasonable for the plaintiff to commence this action under the ordinary procedure given its monetary value. Indeed, the plaintiff’s only real chance of exceeding the $100,000 threshold was if she was awarded both moral and punitive damages, and I concluded in my decision that she provided no evidence to support her claims in this regard (see paras. 126– 131). Her claim was unrealistically high given the actual merits of her case.

[13] Much of the plaintiff’s claim related to her allegation that she was “diagnosed by Dr. Chen as suffering from depression, hypertension and anxiety” and that her illness stemmed from work related stress. I found in my decision that these allegations were unsupported by any evidence whatsoever, and that the medical evidence provided by the plaintiff indicates that she suffered from dizziness and vertigo. It appears to me that this case was complicated and protracted by the plaintiff’s unsubstantiated allegations and her refusal to set out the real reasons for her absence from work. The plaintiff’s legal cost would have been substantially less if she had told the truth.

[14] Neither Rule 57.05 nor Rule 76.13 are mandatory – each provide a discretion to order costs to a successful plaintiff if it was reasonable for the plaintiff to commence the action under the ordinary procedure (see for example Aristorenas v. Comcare Health Services, 2007 ONCA 9 at para. 6).

[15] In this regard the plaintiff points out that she did bring a motion for summary judgment under Rule 20, which is itself a simplified procedure intended to save time and costs (Hryniak v. Mauldin, 2014 SCC 7). Rule 20 is, in this regard, very similar in intent, and in some ways the functional equivalent, to the Simplified Procedure established by Rule 76. Because this case proceeded by way of summary judgment motion the parties relied on affidavit evidence and cross-examination transcripts, and the hearing took less than two days. It is unlikely that the case would have taken less time if it had proceeded under Rule 76.

[16] The defendant opposed the motion for summary judgment, taking the position (unsuccessfully) that the claim required a full trial to resolve the factual disputes between the parties.

[17] In my view, by proceeding by way of summary judgment under Rule 20 the plaintiff accomplished the same purpose as that intended by the Simplified Procedure under Rule 76. Accordingly, this is not an appropriate case in which to deny the plaintiff costs under either rule 57.05 or 76.13.

[18] That being said, costs should bear some proportionate relationship to the amount recovered in the proceedings (Rule 57.01(1)(a)). While the plaintiff should not be denied her costs under Rule 57.05 or 76.13, her limited success is a serious consideration in assessing costs (Moseley-Williams v. Hansler Industries Ltd., 2009 594 (ON SC) at para. 14). I also recognize that the mere fact that costs exceed the damages awarded does not render the costs award inappropriate (A & A Steelseal Waterproofing Inc. v. Kalovski, 2010 ONSC 2652 at para. 21).

[19] Taking into account all of these considerations, I conclude that the plaintiff should be awarded costs for the action and summary judgment motion on a partial indemnity basis in the amount of $20,000, inclusive of disbursements and HST. This is in addition to the $3,000 costs awarded with respect to the Rule 39.02(2) motion, for a total of $23,000 inclusive of disbursements and HST, and I order the defendant to pay the plaintiff this amount within 30 days.

Justice R.E. Charney

Date: January 9, 2017