Court File and Parties

COURT FILE NO.: CV-16-558337 DATE: 20170518 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Larry Patterson, Plaintiff AND: IBM Canada Limited, Defendant

BEFORE: S.F. Dunphy J.

COUNSEL: David Ertl, for the Plaintiff John MacDonald and Sarah McLeod, for the Defendant

HEARD: In Writing

COSTS ENDORSEMENT

[1] On February 23, 2017, I granted the plaintiff’s motion for summary judgment and fixed his damages arising from wrongful dismissal. My decision has been publicly released (at 2017 ONSC 1264) and I shall not repeat the details of the case here beyond the briefest of summaries.

[2] Mr. Patterson was terminated from his employment at IBM and sought damages for wrongful dismissal. The only issue was damages and the matter was, appropriately, brought before me as a summary judgment motion.

[3] It bears repeating that it is expected that most wrongful dismissal cases ought to fit the mould and be appropriate candidates for summary judgment. This is particularly so where cause is not an issue and damages alone are at stake. That is not to say that there will not be cases where viva voce testimony and the full procedural attributes of a trial will be necessary. It is to say that the interests of justice, especially access to justice having regard to the principle of proportionality will usually dictate that a full trial is not necessary to do justice between the parties on the handful of issues typically arising in wrongful dismissal. In appropriate cases, hybrid procedures can be fashioned to accommodate limited needs for viva voce evidence. Neither side is advantaged when the costs of proceeding equal or exceed the actual amounts reasonably in dispute. The low end and the high end of outcomes are generally well understood and litigation about the difference between those two points should proceed with the real stakes in mind.

[4] It had been my hope in releasing reasons that the parties would have been able to see eye-to-eye on costs. They had successfully distilled their dispute on the merits to a very small number of issues which made for an efficient hearing. Alas, my hopes were misplaced and they were unable to reach agreement. I have received and considered the written submissions of the parties and shall now proceed to fix the costs payable.

[5] The plaintiff having been successful on its motion for summary judgment is presumptively entitled to its costs and there was nothing on the facts of this case or its procedural history that would justify my considering a scale of costs other than partial indemnity. No party suggested otherwise.

[6] The defendant in this case made an offer to settle which the plaintiff failed to best in court. In point of fact, the defendant’s offer was almost precisely at the level of damages ultimately determined by me [^1]. The defendant claims its partial indemnity costs after the date of its offer of $6,127. Ought the plaintiff to credit the defendant with this amount?

[7] There are three factors that mitigate against this. Firstly, the offer was delivered only four clear days prior to the hearing. Pursuant to Rule 49.10 of the Rules of Civil Procedure costs consequences apply only to an offer made at least seven days in advance (although Rule 49.13 grants me discretion to consider any offer, including one that fails to comply with the Rules). Secondly, particularly as regards the exercise of my discretion under Rule 49.13, the offer exceeds the judgment by an amount that might be considered almost a rounding error. Finally, the amount of costs claimed for the period after the date of the offer is said to be excessive having regard to the fact that the parties had delivered all of their materials in advance of the hearing on the summary judgment motion (and prior to the delivery of the offer) and the hearing itself consumed only about two hours of time and focussed, from the defendant’s perspective, almost exclusively on recent cases that defence counsel had personally argued and was well familiar with.

[8] I am inclined to give some credit to the offer to settle despite these shortcomings. Firstly, the parties ought always and everywhere to be motivated to consider offers or to make them and, when considering them, to do so realistically with an eye towards cost and benefit of further proceedings. Not all cases will settle but all cases ought to consider the question and to do so seriously and pragmatically. Secondly, I cannot simply ignore the costs claimed to be incurred by the defendant on the basis that Mr. MacDonald’s argument focussed primarily upon cases he himself had argued. The plaintiff must bear in mind that a respondent must do more than prepare his or her own argument but must also consider and prepare to address the arguments raised by the other side. That being said, the consideration of the amount the other side could reasonably expect to pay (Rule 57.01(0.b) of the Rules of Civil Procedure) leads me to the conclusion that the amount claimed is excessive, particularly when compared to the plaintiff’s claimed costs for the entire proceeding. Finally I consider the offer itself in the context of Rule 49.13 of the Rules of Civil Procedure. The plaintiff was days away from a two hour hearing and received an offer that was below figures that he reasonably had in view as potential outcomes of his motions. Fixing damages in wrongful dismissal cases may take on the appearance of being scientific and precise, but practitioners are well aware that the process is more art than science. It is a difficult task that we judges do our level best to approach objectively, but there is clearly a fairly broad range of outcomes that might be described as reasonable. The number of variables is simply too large to be reduced to a formula on a “one size fits all” basis. In short, I cannot fault the plaintiff too harshly for having failed to accept the offer, but I am of the view that the defendant is entitled to some credit for having extended the offer.

[9] Having regard to the foregoing considerations, I would allow the defendant a “credit” of $1,500 towards the partial indemnity costs to which the plaintiff is entitled to reflect the fact of the “better late than never” offer to settle.

[10] To avoid double-counting, I shall also exclude from my calculation of partial indemnity costs of the plaintiff its own costs of the hearing itself. The plaintiff has claimed costs of $1,030 (including HST) for “preparation and attendance at summary judgment hearing”. I shall round this amount down to $1,000. The net credit the plaintiff must allow therefore (deducting its own hearing costs and paying a portion of the defendant’s) is thus $2,500.

[11] I shall now proceed to consider what level of partial indemnity costs the $2,000 credit should apply to. The plaintiff has claimed total costs on a partial indemnity basis including HST and disbursements of $16,209.16 (before any credit to the defendant).

[12] The defendant has taken no particular issue with the quantum of claimed costs. Having regard to the defendant’s bill of costs for only a few days following its offer to settle, the defendant was wise not to. The plaintiff’s outline of costs reflects reasonable rates and a reasonable, moderate and efficient allocation of time. The same comments apply to the disbursements.

[13] I am allowing the plaintiff its costs as claimed $16,209.16 less a total credit to the defendant of $2,500 as per my comments above resulting in an award of $13,709.16. The plaintiff shall also have $500 costs for assessing its costs resulting in a total award of $14,209.16.

[14] The parties have agreed to revise my award of damages to $57,427.46 reflecting a calculation error on my part in awarding the plaintiff damages for accrued pension contributions that were in fact made.

[15] There appears to be a residual dispute between them as to whether and to what degree prejudgment interest ought to be amended in consequence. I strongly suspect that the difference will not buy either side a cup of coffee. However, in the event the parties are unable to agree on prejudgment interest in consequence of the changes made herein, I will receive one page of submissions from each on the understanding on the understanding that neither side shall receive any additional costs for the exercise.

[16] The plaintiff’s damage award shall therefore be revised to $57,427.46 and he shall be awarded costs of $14,209.15 all inclusive. Order to go accordingly.

S.F. Dunphy, J. Date: May 18, 2017

Footnotes

[^1]: The offer to settle was for $58,000; my verdict was for $58,282 but this sum included damages for certain pension contributions that were in fact made. My judgment was expressly “E & OE” as to the damages calculations and the defendant calculates the revised damages at $57,424.46. This is a figure the plaintiff has agreed with.