Court File and Parties
COURT FILE NO.: 11150/16 SR DATE: 2017/07/06
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Kim Morrow Louis Century, for the Plaintiff Plaintiff
- and -
Complex Services Inc., operating as Niagara Casinos Michael J. Bonomi, for the Defendant Defendant
The Honourable Justice T. Maddalena
COSTS ENDORSEMENT
[1] I heard this summary judgment motion on March 31, 2017. I provided the parties with written reasons on May 15, 2017. I have now received and reviewed the costs submissions from both parties.
The Position of the Plaintiff
[2] The plaintiff states it was successful on the summary judgment motion. Therefore, the plaintiff seeks costs on a partial indemnity basis, in accordance with its bill of costs, fixed at $28,339.41 all inclusive of disbursements and HST.
[3] Further, the plaintiff submits it made an offer to settle for $35,000 on June 28, 2016 plus legal fees plus interest.
[4] The plaintiff further states the defendant made two offers: one dated August 19, 2016 offering to settle for $28,427.41 plus legal fees plus interest, and a second offer February 22, 2017 totalling $32,177.41 plus legal fees plus interest.
[5] The plaintiff at trial argued that 11 months payment in lieu of notice, plus aggravated damages, plus the inclusion of a bonus and vacation pay, was appropriate. The plaintiff stated that this was not a case of divided success and, therefore, its claim as enunciated herein for costs on a partial indemnity basis is a fair and reasonable award.
The Position of the Defendant
[6] The defendant concedes the plaintiff’s entitlement to costs on a partial indemnity basis, however states those costs should be fixed at $7,500 plus recoverable disbursements plus HST.
[7] The defendant noted that the plaintiff claimed $100,000 in damages but recovered in total $33,098.44.
[8] The defendant pleads divided success since the plaintiff was not successful on its claim for aggravated damages and for the inclusion of vacation pay. The defendant also stated that this was not a particularly complex legal action involving difficult or complex issues of the law.
[9] Furthermore, the defendant noted that its last offer, dated February 27, 2017, proposed a total settlement of $32,177.41, plus legal fees, plus interest. According to the defendant, this was some $921 less than the actual court judgment. Therefore, the plaintiff failed to accept a fair and reasonable offer.
Analysis
[10] At the summary judgment motion, the plaintiff argued that appropriate payment in lieu of notice should be 11 months. The plaintiff also requested the inclusion of bonus, together with vacation pay, plus punitive damages.
[11] The defendant at the summary judgment motion argued that payment in lieu of notice should be no more than 7.5 months’ salary, plus the court should exclude bonus and vacation pay, as well as dismiss the claim for punitive damages.
[12] At the conclusion, the court awarded eight months’ pay in lieu of notice, no vacation entitlement, it included a bonus, and dismissed the claim for punitive damages.
[13] The court finds mixed success on the part of both, given that the total of the court award was $33,098.44. Furthermore, the offer to settle of the defendant on February 27, 2017 came within approximately $921 of the court judgment. The offer to settle of the plaintiff on June 28, 2016 came within approximately $1,900 of the court judgment.
[14] Further, I have considered all those factors enunciated in rule 57.01(1) of the Rules of Civil Procedure. I have also considered the court’s position in the case of Boucher v. Public Accountants Council for the Province of Ontario (2004), 71 O.R. (3d) 291. The court noted in that case that the overall objective is to fix an amount that is fair and reasonable, having regard to the broad range of factors in rule 57.01(3), for the unsuccessful party to pay, rather than an amount fixed by the actual costs incurred by the successful party.
[15] I am persuaded that in the case at bar, costs should be awarded on a partial indemnity basis payable to the plaintiff, but such costs should also take into consideration the respective offers to settle and the mixed success of the parties. Given the circumstances, it is appropriate to discount the partial indemnity amount of the plaintiff and, accordingly, I fix the costs payable by the defendant to the plaintiff at $10,000 inclusive of disbursements and HST.
Order Made
[16] The defendant shall pay to the plaintiff costs in the amount of $10,000 inclusive of disbursements and HST within 30 days.
Maddalena J.