Court File and Parties

CITATION: Nogueira v. Second Cup, 2017 ONSC 6756 COURT FILE NO.: CV-17-569192 DATE: 2017-11-09

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Annabelle Nogueira, Plaintiff – and – The Second Cup Ltd., Defendant

BEFORE: Justice E.M. Morgan

COUNSEL: Patrick Summers, for the Plaintiff William Hayter, for the Defendant

HEARD: Written submissions on costs

COSTS ENDORSEMENT

[1] This was a motion and cross-motion in an employment action, with each side seeking summary judgment against the other. In my ruling of October 20, 2017, the Plaintiff was successful in claiming for compensation in lieu of notice as required at common law. The Defendant, on the other hand, was unsuccessful in claiming that the contract of employment limited the Plaintiff’s compensation upon termination to the amounts stipulated in the Employment Standards Act.

[2] In the result, the Plaintiff received an award of 4 months’ salary plus minor pension benefits. While employed by the Defendant she had been earning $125,000 per year.

[3] Counsel for the Plaintiff has provided me with a copy of an Offer to Settle which was served on the Defendant a month prior to the summary judgment motion and which was never accepted by the Defendant. That Offer proposed that the Defendant pay the Plaintiff 11 weeks’ salary in lieu of notice. Given that the Offer was served more than 7 days prior to the summary judgment motion and the Plaintiff ultimately did better than she would have done had the Offer been accepted, Rule 49.10(1)(a) of the Rules of Civil Procedure applies. The Plaintiff therefore deserves her costs on a partial indemnity basis up until September 29, 2017 – i.e. the date of the Offer to Settle – and on a substantial indemnity scale thereafter.

[4] Plaintiff’s counsel’s Costs Outline indicates that the Plaintiff seeks costs in the amount of $5,220 on a partial indemnity scale up to the date of the Offer and $6,600 on a substantial indemnity scale from the date of the Offer to the date of the hearing. This is a reasonable request. As this was a summary judgment motion, the costs reflect the entire costs of the action. Needless to say, the period covered by the substantial indemnity scale was the most work-intensive period as it encompassed the weeks leading up to the motion and thus the preparation time for the motion.

[5] Counsel for the Defendant takes some issue with the number of hours claimed by counsel for the Plaintiff. However, I am not inclined to second guess a relatively modest request like that submitted by Plaintiff’s counsel. The motion was obviously of great importance to the Plaintiff [Rule 57.01(1)(d)], and I consider it unlikely that the amount of costs sought by the Plaintiff would take the Defendant by surprise [Rule 57.01(1)(0.b)].

[6] The Plaintiff’s total costs bill, including all fees, disbursements, and HST, and taking into account the apportionment between partial and substantial indemnity scales, comes to just over $13,900. That amount is proportional to the importance of the issues and the amount of the overall award.

[7] The Defendant shall pay the Plaintiff costs in the all-inclusive amount of $13,900.

Morgan J.

Date: November 9, 2017