Singer v Nordstrong Equipment Limited, 2017 ONSC 7074

CITATION: Singer v Nordstrong Equipment Limited, 2017 ONSC 7074

COURT FILE NO.: CV-17-568291

DATE: 20171128

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

ANDRE SINGER

Plaintiff

– and –

NORDSTRONG EQUIPMENT LIMITED

Defendant

Jeff Hopkins, for the Plaintiff

Gerald Griffiths, for the Defendant

HEARD: WRITTEN SUBMISSIONS

COSTS ENDORSEMENT

DIAMOND J.:

1In my Reasons for Decision released on October 6, 2017, I asked the parties to try and resolve the issue of the costs of this proceeding. They were unable to do so, and pursuant to the terms of a fixed schedule I have now received and reviewed their respective costs submissions.

2The plaintiff submits that he was the successful party on his motion for summary judgment, and seeks costs of the action on a partial indemnity basis in the all-inclusive amount of $43,562.00.

3The defendant submits that success on the motion was divided between the parties, and as such no order of costs ought to be made in the circumstances. In the alternative, should costs of the action be awarded to the plaintiff on a partial indemnity basis, the defendant submits that the amount sought by the plaintiff be reduced as the time spent prosecuting the motion far exceeds what was reasonable and/or contemplated by the defendant.

4There is ample jurisprudence to support the defendant’s request that no order for costs be made if the success of litigation was divided between the parties. At the conclusion of my Reasons, I indicated that success had arguably been divided between the parties. I have subsequently reviewed the parties’ respective costs submissions with a view to determining whether my initial view remain correct.

5There were six issues raised by the parties on the plaintiff’s motion for summary judgment. In my view, the success on each issue was decided as follows:

Issue

(More) Successful Party

1

Reasonable Notice

Plaintiff (he requested 18 months’ notice and was awarded 17 months)

2

2016 Bonus

Plaintiff (he sought a 5% bonus and was awarded a 4.634% bonus)

3

2017/2018 Bonus

Defendant

4

Loss of Benefits during the notice period

Defendant

5

Mitigation

Plaintiff

6

Aggravated/Punitive Damages

Defendant

6I agree with the plaintiff that he was the more successful party on the two “major” issues, namely reasonable notice and payment of the 2016 bonus. As such, I believe the plaintiff ought to be awarded some costs of the action given that he was the “slightly more” successful party on his motion for summary judgment.

7As mandated by the Court of Appeal for Ontario in Boucher v. Public Accountants Council (Ontario) 2004 CanLII 14579 (ONCA), I remain mindful of my obligation to consider what is “fair and reasonable” in fixing costs with a view to balancing compensation of the more successful party with the overall goal of fostering access to justice.

8I have reviewed the plaintiff’s Costs Outline. I find the hourly rates charged therein to be reasonable, although some of the entries appear to be excessive (such as nearly 14 hours spent “communicating with client and inter-office discussions”).

9Having regard to the results achieved, the reasonable expectations of the parties and the overarching principle of proportionality, I order the defendant to pay the plaintiff his costs of this action fixed on a partial indemnity basis in the all-inclusive amount of $20,000.00.

Diamond J.