CITATION: Glagau v. Brink’s Canada Limited, 2017 ONSC 4811
COURT FILE NO.: CV-15-526598
DATE: 20170814
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Gordon Glagau, Plaintiff
AND:
Brink’s Canada Limited, Defendant
BEFORE: Ferguson J.
COUNSEL: Chris Dockrill, for the Plaintiff
Michael S. Stitz, for the Defendant
HEARD: In-writing
ENDORSEMENT ON COSTS
[1] This was a two part summary judgment motion. Following the first part I made the following findings with respect to the plaintiff:
a) He was recruited by the defendant;
b) His performance level rating was FP;
c) He was entitled to the bonus;
d) The reasonable notice period was 10 months; and
e) The plaintiff had mitigated his damages.
[2] The second part the motion was with respect to the calculation of bonus. I found that the three year average of $30,383.33 was to be used to calculate the bonus.
[3] I have received the plaintiffs email of July 5, 2017 which consolidated the plaintiffs cost submissions which consisted of:
a. The plaintiff`s costs outline dated April 27, 2017;
b. The plaintiff`s written costs submissions dated June 1, 2017; and
c. The plaintiff`s reply costs submissions dated June 15, 2017.
[4] I received a further email from plaintiff’s counsel on August 4, 2017 which deals with both the defendant’s offer to settle, and as well, provides the plaintiff’s damage calculation, taking into account all of my factual findings. That damage calculations spreadsheet is attached as Exhibit “A” to this endorsement.
[5] On behalf of the defence I received an email from Mr. Stitz on July 14, 2017 referencing a formal offer to settle and cost submissions dated June 12, 2017. On August 3, 2017 I also received the defendant’s offer to settle for an all-inclusive gross sum of $240,378.00 less applicable statutory deductions as well as monies already paid to the plaintiff in the amount of $13,972.00 inclusive of pre-judgment interest together with a dismissal of the action without costs.
[6] Plaintiff’s counsel made the following submissions:
a. Brink’s offer to settle was served at 4:26 p.m. on April 11, 2017. In accordance with the Rules service was effective on April 12, 2017;
b. By April 11, 2017 the plaintiff had filed his motion materials except for his factum and supplementary motion record (containing materials marked as exhibits on the cross-examinations). His factum was completed in draft form, subject only to the incorporation of transcript references from cross-examinations (the transcript had only been delivered to counsel on April 4, 2017). Further, the cross-examinations of Glagau and Murray were only conducted on April 12, 2017;
c. By the time the offer to settle was served, virtually all the work on the motions had been done, except for finalizing the factum and arguing the motions;
d. In order to benefit from the offer to settle Brink’s must show that the plaintiff obtained a judgment as favourable as or less favourable than the terms of the offer to settle;
e. Brink’s offer to settle was structured as an all-inclusive offer. While that itself is not fatal to an offer to settle, it is in this case because of the following:
i. After taking into account the statutory amount, the all-inclusive offer is $226,406.00:
ii. The offer includes pre-judgment interest but is silent on the allocation of the amounts amongst the various claims made with respect to the loss of bonus; the loss of benefits; outstanding vacation pay; post-judgment interest and liability for costs.
[7] Plaintiffs counsel submits, and I accept, that when all of these items are taken into account, the all-inclusive amount is significantly lower than that which appears on the face of Brink’s offer. I agree that the offer is not more favourable than that which was awarded to the plaintiff. As a result the offer to settle is not relevant to the determination of the plaintiffs entitlement to costs.
Calculation of Plaintiff`s Costs
[8] Plaintiff’s counsel has an actual rate of $450.00; a partial indemnity rate of $300.00; and a substantial indemnity rate of $400.00. I find that these are reasonable amounts given counsel’s experience and the issues involved in the action.
[9] Plaintiff’s counsel seeks substantial indemnity costs for reasons set out below. I decline to order substantial indemnity costs. Partial indemnity costs are appropriate under these circumstances. The partial indemnity costs up to an including the April 27, 2017 hearing of the motions was a total sum of $42,181.00 (broken down as fees of $30,060.00, HST of $3,907.80, disbursements of $5,713.88 and a counsel fee for the full day hearing including HST of $2,500.00).
[10] Following the additional hearing the plaintiff submits that he has incurred additional costs, including efforts to obtain an agreement on the quantum of the judgment and preparation for and further attendance to address the bonus issue on June 23, 2017. The amount claimed for partial indemnity costs is $3,678.15.
[11] Plaintiff’s counsel suggests that the following factor should be considered in addressing costs: (and why he submits substantial indemnity costs are appropriate, which I have denied)
The defendant’s lack of co-operation throughout-this is exemplified by the necessary motion to obtain the defendant’s affidavit of documents and a delay in responding to undertakings and questions.
Unprofessional conduct by (prior) defence counsel’s behaviour including a reference to a without prejudice settlement meeting.
Proffering false evidence by Paul Murray and Rose Massell. I decline to make this finding of proffering false evidence by these witnesses. That would require a trial with viva voce evidence from these two witnesses.
[12] Defence counsel points out the following with respect to his submission that the plaintiff should only be awarded partial indemnity costs (which I have ordered):
a. The defence actually commenced the summary judgment motion on what was only a reasonable notice case. (I find that this was not just a reasonable notice case)
b. I should not cast a light on the defence with respect to any Law Society involvement. I agree with this and that matter is not taken into account in awarding costs.
c. The reasonable expectations that an unsuccessful party could expect to pay. They point to the case of Tetra Consulting v. Continental Bank et al. 2015 ONSC 6546, a case wherein the defendant was ordered to pay extraordinary legal costs based on the defence theory in which just cause for dismissal was alleged and then abandoned at the summary judgment motion. In that case $42,394.26 was awarded on a substantial indemnity scale. The defence points out that this was not bad faith litigation. (I agree)
d. The defendant has submitted the case of Zesta Engineering Limited v. Cloutier 2002 CanLII 45084 (ON CA), 2002 164 OAC 234 (CA), wherein the court held that a costs award should reflect what the court views as fair and reasonable for the unsuccessful party to pay rather than any exact measure of the actual costs to the successful litigant.
e. The plaintiff should not receive any increase in costs because he was not provided with a reference letter. I agree that providing a reference letter is not a legal requirement of an employer.
f. I should not make any finding that the defendant offered false evidence on the issues of bonus and mitigation. (I did not make that finding)
g. The defendant submits that I should exercise my discretion and take its offer to settle into account which I have declined to do that.
[13] Taking all into account, I find that $40,000.00 inclusive of fees, disbursements and HST and is awarded for costs.
J. Ferguson, J.
Date: August 14, 2017