Court File and Parties

Court File No.: CV-16-554245 Date: 2017-07-20 Ontario Superior Court of Justice

Re: GERALD VAN WYNGAARDEN, Plaintiff And: THUMPER MASSAGER INC., Defendant

Before: Mr. Justice M. D. Faieta

Counsel: Kevin W. Fisher, for the Plaintiff David S. Mills, for the Defendant

Costs Endorsement

Background

[1] For reasons dated June 27, 2017, I granted the defendant’s motion for summary judgment and dismissed the plaintiff’s action for damages arising from his dismissal during a period of probationary employment: Van Wyngaarden v. Thumper Massager Inc., 2017 ONSC 3909.

[2] The defendant claims costs of this action in the amount of $26,614.69 on a substantial indemnity basis or, alternatively, costs of $21,027.09 on a partial indemnity basis, both of which figures are inclusive of $1,134.75 in disbursements and taxes. Amongst other things, the plaintiff submits that the costs claimed by the defendant are excessive and that a costs award of $10,000, on a partial indemnity basis, inclusive of all disbursements and HST, is “… proportionate and reflective of the reasonable expectations of the parties”.

Analysis

[3] The fixing of costs is governed by s. 131 of the Courts of Justice Act, R.S.O. 1990, c. C.43 and the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. Rule 57.01 is the primary rule governing costs. It enumerates various factors to consider when exercising discretion to award costs. Rule 1.04(1.1), the purpose of which is to promote access to justice, is also applicable. It provides that,

In applying these rules, the court shall make orders and give directions that are proportionate to the importance and complexity of the issues, and to the amount involved, in the proceeding.

[4] In fixing costs, the objective is to ascertain “an amount that is fair and reasonable for the unsuccessful party to pay in the particular proceeding, rather than an amount fixed by the actual costs incurred by the successful litigant”. Although a successful party is usually indemnified for its costs by the unsuccessful party, the principle of indemnity is but one of many considerations in fixing costs: Boucher v. Public Accountants Council (Ontario) (2004), 71 O.R. (3d) 291 (C.A.), at paras. 26, 37-38; Davies v. Clarington (Municipality), 2009 ONCA 722, 100 O.R. (3d) 66, at paras. 50-52; Elbakhiet v. Palmer, 2014 ONCA 544, 121 O.R. (3d) 616, at para. 38, leave to appeal refused [2014] S.C.C.A. No. 427.

[5] I now turn to the various relevant considerations in assessing costs in this matter.

The Principle of Indemnity

[6] The plaintiff does not challenge the hourly rate charged by counsel for the defendant.

[7] I have calculated that the defendant claims a total of about 81 hours for this action and the plaintiff claims a total of about 50 hours. The defendant does not provide a breakdown of the time spent per fee item. The Costs Outline shows about 73 hours spent on the summary judgment motion and about 8 hours for the balance of the action. In respect of the 73 hours claimed, about 20 hours is claimed by David Mills, 36 hours by Doug Letto, 11 hours by a student at law and 6 hours by a law clerk. Without more, it appears that some of the time spent may have been duplicative.

[8] I note that while the defendant did deliver an Affidavit of Documents on the day of the hearing of this motion, there were no examinations or cross-examinations in light of the fact that this action was started under the Simplified Procedure in Rule 76. I find that the number of hours claimed by the defendant is reasonable.

The Amount that an Unsuccessful Party could Reasonably Expect to Pay

[9] The plaintiff submits that its costs of this action, on a partial indemnity basis, amount to $14,261.84 inclusive of taxes and $1,743.93 in disbursements.

The Amount Claimed and the Amount Recovered

[10] The plaintiff claimed $46,200. He recovered nothing.

The Apportionment of Liability

[11] This factor is not relevant to the proceeding before me.

The Complexity of the Proceeding

[12] The issues raised by the motion for summary judgment were not complex.

The Importance of the Issues

[13] While the issues raised by this proceeding are of importance to the parties, they do not have significant jurisprudential importance.

The Conduct of any Party that Tended to Shorten or Lengthen Unnecessarily the Duration of the Proceeding

[14] Neither party suggests that the conduct of the other tended to shorten or unnecessarily lengthen the duration of this proceeding.

Whether any Step in the Proceeding was Improper, Vexatious or Unnecessary, or Taken through Negligence, Mistake or Excessive Caution

[15] Neither party suggests that other took a step that was improper.

A Party’s Denial of or Refusal to Admit Anything that Should Have Been Admitted

[16] Neither party suggests that other denied or refused to admit anything that should have been admitted.

Whether It Is Appropriate to Award Any Costs or More than One Set of Costs where a Party Commenced Separate Proceedings for Claims that Should Have Been Made in One Proceeding or in Defending a Proceeding Separated Unnecessarily from Another Party in the Same Interest or Defended by a Different Lawyer

[17] Neither party makes the above suggestions about the other.

Any Other Matter Relevant to the Question of Costs

[18] The defendant submits that it is entitled to substantial indemnity costs because it made an offer, prior to the commencement of this action, to pay in exchange for a release of all claims. Specifically, by letter dated December 10, 2015, the defendant offered the plaintiff an additional three weeks’ pay in lieu of notice. This offer remained open for one day. The offer was not accepted and this action was commenced. In the circumstances, substantial indemnity costs are not warranted. The defendant has not explained on what basis substantial indemnity costs should be awarded given this offer. First, the offer does not comply with Rule 49. The offer was made prior to the commencement of litigation. Further, it did not remain open for acceptance until trial. Finally, even if the offer had been compliant with the requirements of Rule 49, the award of substantial indemnity costs to a defendant is not provided for by Rule 49.10(2). In addition, the plaintiff’s conduct has not been reprehensible, scandalous or outrageous even though this action did not have merit: Young v. Young, [1993] 4 S.C.R. 3, at para. 251.

[19] There is no dispute that Rule 76 (Simplified Procedure) governed this action. As the name suggests, the Rule places limits on all steps that would otherwise be available in a proceeding in order to promote access to justice. Thus, an award of costs in an action under the Simplified Procedure Rules should not only be proportionate to the amounts in dispute, given Rule 1.04(1.1), but should also reflect the main objective of Rule 76, which is to curb the relatively high cost of litigating small claims: Trafalgar Industries of Canada Ltd. v. Pharmax Ltd. (2003), 64 O.R. (3d) 288 (S.C.), at paras. 11-12.

Conclusions

[20] In light of the considerations described above, I find that it is fair and reasonable to award the defendant the sum of $15,000 in respect of its costs of this action, inclusive of disbursements and HST, payable by the plaintiff.

Mr. Justice M. D. Faieta Released: July 20, 2017