BARRIE COURT FILE NO.: CV-15-1056-SR DATE: 20170106 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

RONALD DAWSON Plaintiff – and – COLT FOOD SERVICES LIMITED Defendant

N. Simes, Counsel for the Plaintiff A. Chapman, Counsel for the Defendant

HEARD: By written submissions

REASONS FOR DECISION ON COSTS

DiTOMASO J.

INTRODUCTION

[1] The Plaintiff, Ronald Dawson, 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 legal issues that went far beyond the amount of severance owed to Mr. Dawson, given his age and years of service.

[2] Whether Mr. Dawson resigned from his position was found to be a genuine issue requiring a trial. If Mr. Dawson did not resign from his position of employment, then a further issue was whether he abandoned his employment. There were other issues involving notice period and mitigation, as well as Mr. Dawson’s claim, pursuant to the Ontario Human Rights Code.

[3] Also, I found there were significant credibility issues involving the evidence of Mr. Dawson, Mr. Campbell and other witnesses which could not be resolved on the Summary Judgment Motion.

[4] Accordingly, Mr. Dawson’s Motion for Summary Judgment was dismissed.

[5] The Parties agreed that costs would be determined by way of written submissions.

[6] I have received and reviewed those submissions, as well as my Reasons for Decision released December 7, 2016.

POSITIONS OF THE PARTIES

Position of Mr. Dawson

[7] Mr. Dawson submits that costs of the Summary Judgment Motion should be reserved to the trial judge. He relies upon a decision of this court in Urbanski v. The Corporation of the Township of Ramara, 2016 ONSC 1799, and Gafny v. Vainshtein, 2016 ONSC 4030. In Urbanski, the costs of the Summary Judgment Motion were reserved to the trial judge.

[8] Although Mr. Dawson was the unsuccessful Moving Party, he submits that the steps taken by the Parties towards the preparation of this motion would facilitate the trial process and would reduce the time for trial. Further, the fundamental objective of access to justice would not be met if a significant costs award was made against Mr. Dawson which, in effect, would prevent this case from proceeding to trial. The outcome could very well depend on the trial judge’s determination of credibility issues between the Parties. As the merits of the action have not been decided, Mr. Dawson may yet succeed at trial.

[9] In the alternative, if costs should be awarded at this stage, it is submitted that proportional costs ought to be fixed in the amount of $7500 all inclusive.

Position of Colt Food Services Limited

[10] Colt Food Services Limited (Colt) was the successful party on this motion and seeks costs of the motion on a substantial indemnity basis, pursuant to the principles set out in Rule 57.01(1) and the cost sanctions of Rule 20.06(a) of the Rules of Civil Procedure. Those substantial indemnity costs are in the amount of $23,873.23.

[11] It is submitted that there is no reason to vary from the normal rule that the successful party should be entitled to its costs of the motion. Prior to the hearing of the motion, Colt prepared affidavits relating to Mr. Dawson’s claims for wrongful dismissal, reasonable notice, and alleged breach of the Ontario Human Rights Code. The Parties and two additional witnesses were cross-examined on their affidavit evidence prior to the hearing. Counsel for Colt also prepared a factum on the legal issues raised on the motion, along with a Book of Authorities. Transcripts of the cross-examinations were obtained and utilized at the hearing. Several undertakings were also answered by Colt.

[12] Colt further submits that factors listed under Rule 57.01 of the Rules of Civil Procedure apply and that it was unreasonable for Mr. Dawson to pursue the Motion for Summary Judgment, given the material facts that were in issue.

[13] Colt seeks payment of costs fixed in the amount of $23,873.23 all inclusive, payable by Mr. Dawson forthwith.

ANALYSIS

[14] Costs are at the discretion of the court; see Section 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.

[15] For the following reasons, I find that it would be appropriate for costs of this motion to be reserved to the trial judge.

[16] Despite Mr. Dawson’s motion being dismissed, the steps taken by the Parties towards preparing for this motion will facilitate the trial process. The Parties have already prepared affidavits, completed cross-examinations, and reviewed transcripts, undertakings and facta. These efforts will form part of the evidentiary record for trial, along with the Summary Judgment Motion itself. The efforts spent to date will substantially limit the discovery process and will expedite the time required to prepare for and attend at trial.

[17] As in Urbanski, I found there were genuine issues for trial, including evidentiary conflicts and credibility issues.

[18] Further, the fundamental objective of access to justice would not be met if a significant costs award were to be made against Mr. Dawson at this time. I find such a costs award would preclude Mr. Dawson from proceeding to trial as his income has been substantially reduced after his employment ended with Colt. As in Urbanski, this court found that access to justice would:

Not be met if a significant cost award is made against [the Plaintiff] now which prevents this case from proceeding to trial. (See Urbanski at para. 19)

[19] As in Urbanski, Mr. Dawson faces significant hardship since his employment has ended with Colt. He was out of work for a period of time and is now employed earning an hourly wage far less than what he was earning at Colt. He also faces matrimonial difficulties which allegedly result from the stress of his employment ending and this litigation. I accept the submission on behalf of Mr. Dawson that if significant costs were awarded against him, it would prevent this case from proceeding to trial and prevent his access to justice and a decision on the merits. In this case, the trial judge’s determination of credibility issues between the Parties is of critical significance.

DISPOSITION

[20] For these reasons, I find that it is appropriate, fair and reasonable to reserve the costs of the Summary Judgment Motion to the trial judge.

DiTOMASO J. Date: January 6, 2017