CITATION: Whiteley v. Wipro Limited, 2017 ONSC 4972

COURT FILE NO.: CV-15-520617 DATE: 20170911

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Jacob Whiteley, Plaintiff AND: Wipro Limited and Wipro Technologies Canada Ltd., Defendants

BEFORE: Justice Edward P. Belobaba

COUNSEL: Jennifer Heath and David Witkowski for the Plaintiff / Moving Party Christopher McLeod and Jill Snelgrove for the Defendants / Responding Parties

HEARD: April 3 and June 6, 2017 and written submissions

costs award

[1] In a decision released on July 27, 2017 I dismissed the plaintiff’s motion for summary judgment and his claim for unpaid incentive compensation.[^1] I found that under the company’s incentive plan, the defendant employer was obliged to pay sales incentives and bonuses when an actual Statement of Work was executed. The SOWs that provided the basis for the plaintiff’s claim had not been executed by the stipulated date and thus no sales incentives or bonuses were owing. The plaintiff’s claim was summarily dismissed.

[2] The successful defendant is entitled to its reasonable costs on a partial indemnity basis. The defendant made two offers to settle that were both more favorable than the result herein but they do not trigger the costs consequences in Rule 49.10(2) because the claim was dismissed in its entirety - that is, no judgment of any kind was obtained by the plaintiff.[^2] The case law is clear that where the plaintiff’s action is dismissed outright costs on a substantial indemnity basis can only be awarded if there is evidence of egregious conduct.[^3] Here there is no such evidence. The appropriate scale remains partial indemnity. The fact that the defendant made two unaccepted offers can still be considered by the court as a relevant factor under Rule 57.01(1).

[3] On a partial indemnity basis, by my calculation, the defendant claims $127,567 in fees and $12,438 in disbursements for a total of $140,005, excluding taxes.

[4] The plaintiff makes two submissions in response. First, that no costs should be awarded because the defendant’s actions during this litigation “led to needless delay and work for all parties and in fact prevented an early resolution of this matter.” And second, and in the alternative, that the costs claimed are excessive and should be addressed by way of assessment. I will deal with each of these points in turn.

[5] Did the defendant’s actions cause needless delay and work and prevent an early resolution of this matter? The plaintiff points to the defendant’s improper redaction of key documents, including the Amended MSA, several unnecessary adjournments and last minute delays, the defendant’s opposition to a mediation and its use of arguably improper affidavit evidence from witnesses with no personal knowledge of the relevant facts. There is some merit in this first submission but, in the overall, it does not justify a complete denial of costs.

[6] Are the defendant’s costs excessive? The problem with this submission is that the plaintiff has not produced its own costs outline showing the time spent by his own counsel. I cannot conclude absent this comparison that the defendant’s costs are indeed unreasonable or excessive.

[7] However, I can conclude that this litigation properly and effectively conducted by counsel on both sides should have generated a costs award on a partial indemnity basis in the range of $50,000 to $60,000 at most. Standing back, and considering all the circumstances, including the factors set out in Rule 57.01(1) and the two offers to settle, I find it fair and reasonable to fix costs at $60,000.

[8] Order to go directing that the plaintiff pay $60,000 all-inclusive to the defendant within 45 days.

Date: September 11, 2017 Justice Edward P. Belobaba

[^1]: Whiteley v. Wipro Limited, 2017 ONSC 3454. [^2]: St. Elisabeth Home Society v. Hamilton (City), 2010 ONCA 280, [2010] O.J. NO. 1515 (C.A.) at paras. 88-89. [^3]: Ibid., at para. 92.