Doyle v. Zochem Inc. et al., 2017 ONSC 920

COURT FILE NO.: 794/12

DATE: 2017 02 06

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: Melissa Doyle, Plaintiff

AND:

Zochem Inc., Horsehead Corp., Horsehead Holding Corp. and Stephanie Wrench, Defendant

BEFORE: Trimble J.

COUNSEL: A. Assuras, Counsel for the Plaintiff

M. Smith and R. Leck, Counsel for the Defendants

HEARD: October 31, 2016

COSTS ENDORSEMENT

Trimble J.

[1] On May 16, 2016, Belleghem, J. released his reasons for decision holding that Zochem improperly dismissed Doyle from her employment. He awarded damages as follows:

Damages in Lieu of Notice $ 55,849.99 [^1]

Moral damages $ 60,000.00

Damages under the Human Rights Code $ 25,000.00

Pre-judgment interest $ 8,839.17

Sub Total: $149,689.16

[2] Belleghem, J retired as a Judge of the Superior Court shortly after releasing his decision and was unable to address the costs of the action. I have that task.

BACKGROUND:

[3] In the original Statement of Claim of February 8, 2012, Doyle claimed $800,000 against Zochem and its parent company, for general damages, moral damages, damages for retaliatory discharge and intentional infliction of mental distress, breach of contract re failing to provide sick leave and long term disability benefits, aggravated damages and punitive damages. She claimed $250,000 against Wrench personally for damages for retaliatory discharge, aggravated damages and punitive damages. In August, 2013 she increased her claim against the corporate defendants to $2.6 million and her claim against Wrench to $1.6 million.

[4] In its defence, the Defendant admitted that it initially dismissed Doyle without cause, but pleaded after acquired cause as its defence.

[5] Belleghem, J. dismissed Doyle’s claims for intentional infliction of mental distress, loss of short term and long term disability, past loss of income, future loss of income and care costs, and punitive and aggravated damages. Belleghem, J. also dismissed, completely, Zochem’s defence of after acquired cause, finding that there was no factual basis for it.

[6] Belleghem was extremely uncomplimentary of Wrench, Zochem’s main actor in Doyle’s dismissal. He said, among other things, that she was callous, grossly insensitive, brusque, dismissive, inept, and uncaring. Her conduct, however, was not intended to harm Doyle, although harm was the by-product. Instead, Belleghem, J. held that Wrench was acting at the behest of and in her capacity as an employee of Zochem. He dismissed the claim against Wrench, personally.

[7] The trial took 28 days. It is obvious from Belleghem, J.’s reasons that the trial was hard and bitterly fought. He characterized Zochem’s approach to terminating Doyle, expressed through its employee, Wrench, as hardball and callous. It appears that Zochem maintained that approach during the trial. Zochem certainly maintained that approach in the costs argument before me.

THE CHALLENGE:

[8] At paragraph 338, the learned Trial Judge said:

“Otherwise, as the plaintiff has been successful against the defendant, Zochem, subject to any applicable rule 49 offers, the plaintiff shall be entitled to be awarded her costs against Zochem in the discretion of the judicial officer, determining the cost award, on a scale within the discretion of such officer.”

[9] The trial judge is the person most able to decide the issue of entitlement to and quantum of costs. He or she saw and heard the witnesses, observed the conduct of counsel, made evidentiary rulings as the trial progressed, responded to issues arising from inadequate production or disclosure, received and assessed the evidence, and made the findings of fact necessary to decide the issues.

[10] Many of the findings of fact made in a trial are relevant to the issue of costs. When further findings of fact need to be made in the costs phase of the trial, the trial judge, having heard the evidence at trial, can make those findings necessary in the costs assessment phase if the trial based on the evidence he or she received during the trial, or can draw inferences from that evidence.

[11] While I stand in the shoes of the learned trial judge, I was not present at the trial. I have not heard any of the evidence, was not in the courtroom, did not see or hear the witnesses, did not see the conduct of counsel for any of the 28 days of this trial, and am not asked by counsel to review any transcripts of the trial.

[12] How am I to assess the costs?

[13] The Plaintiff says that I am bound by findings of fact that the learned Trial Judge made. I must accept his comments on the witnesses and positions taken by the parties. I must give his directions and recommendations as to costs serious consideration. Belleghem, J. was at the trial; I was not. He was in the best position to make his comments, recommendations and directions based on the evidence he heard, and the conduct he observed.

[14] The Defendant says that, except for this statement that the Plaintiff should have her costs, I am not bound by Belleghem’s comments, recommendations and directions. I must defer to him on findings of fact where I have no direct evidence to the contrary. Where I do not need to rely on findings at trial, I am free to make my own determination of facts as they pertain to costs. Where I am required to make findings of fact that Belleghem, J. did not make, I am free to do so, provided my findings of fact are consistent with those that Belleghem, J. made.

[15] For the reasons stated above, I am a pale imitation of Belleghem, J. I do not operate in a vacuum, however. I have had the benefit of detailed submissions of counsel. I have also had the benefit of the thoughts, findings and recommendations of Belleghem, J. in his carefully considered and lengthy Reasons for Judgment. To some extent, I stand in a better position than Belleghem, J. in that I am aware of things of which he was not, such as offers to settle.

[16] Belleghem, J. held in para. 338, that the plaintiff was entitled to her costs throughout. Both counsel agree that Doyle’s entitlement to costs, therefore, is determined. Both counsel agree that I have jurisdiction only as to the scale of Doyle’s costs and how they might be affected by Rule 49 offers or by the factors under Rule 57.01. Also, I must determine Wrench’s entitlement to costs, and the scale of those costs.

POSITIONS OF THE PARTIES:

The Plaintiff:

[17] The Plaintiff seeks her costs on a substantial indemnity basis throughout, in the amount of $606,338.95, comprising $496,661.50 for fees, $64,566.00 in HST on fees, and disbursements of $48,161.45 (inclusive of HST). Her reasons for doing so are largely those Belleghem, J. gave for reaching the decision he reached. Doyle said in para. 103 of her submissions:

The Plaintiff seeks costs as against Zochem on a substantial indemnity scale for all of her claims and for the tort claim. The Court must show its disapproval of the conduct of the Defendants. Their conduct was reprehensible and offensive. They played hardball with an employee that they knew was depressed and taking medication for her depression. They treated Doyle callously and unfairly. They alleged, but failed to prove deceit and criminal conduct (extortion). There was no arguable defence for almost all of the Claims asserted by the Plaintiff that she succeeded upon.

[18] In addition to seeking her costs on a substantial indemnity basis, Doyle says Wrench should be denied her costs. Her position is based principally on Belleghem, J.’s comments in paragraph 337 of the Judgement:

When costs are considered, for the reasons given above, I recommend that the defendant, Wrench, not be awarded costs, despite dismissal of the action against her, and that the plaintiff Doyle, be awarded costs for the prosecution of her action against Wrench on a substantial indemnity basis. I find that the action against Wrench occupied approximately 50 percent of the total trial time.

[19] Doyle’s counsel admitted that the fees set out in her substantial indemnity Bill of Costs, in fact, are her solicitor and client bill. She agreed that substantial indemnity costs are approximately 85% of the reasonable solicitor and client bill, and partial indemnity rates are approximately 65%. Therefore, the fees sought, depending on the scale of costs, should be $422,162.28 or $322,829.98, depending on the scale I award.

The Defendant

[20] The Defendant says that Doyle should be awarded no costs for the following principle reasons:

a) The claimed costs are disproportional in the extreme to the amounts claimed ($1.05 million in the original Statement of Claim, and $4.2 million in the Amended Statement of Claim);

b) The Plaintiff was successful on a minor portion of her claims (when analyzed from a dollar claimed perspective);

c) The claimed costs are disproportional in the extreme to the amount awarded ($149,689.16, or $140,849.49 net of pre-judgment interest);

d) The Defendant made 5 offers to settle, the last of which was $133,196.23, or approximately $7,653.26 short of the judgment awarded, before pre-judgment interest. At least two of the offers made (after adjusting for costs payable under those offers) would have resulted in a “windfall” for the Plaintiff;

e) While none of the Defendants’ offers were accepted, the last one made was only $7, 653.26 short of the judgment (before interest) and “near miss” offers require serious consideration;

f) The Plaintiff made no offer until the afternoon before the trial, of $360,000 plus costs disbursements and interest, which was 2.5 times the amount awarded to the Plaintiff at trial.

g) The Plaintiff’s conduct during the trial requires sanction.

[21] Zochem admits that any consideration of offers to settle must come under R. 49.13, since none of the Defendants’ offers met the criteria of R. 49.10.

[22] Zochem refers me to Elbakhlet v. Palmer, 2014 ONCA 544, and Mayer et al. v. 1474479 Ontario Inc. et al., 2014 ONSC 2622 as dispositive of the issue of costs. In Elbakhlet, the Plaintiff claimed $1.9 million and received damages of $145,000. The trial judge awarded costs of $580,000. The Court of Appeal reduced the costs to $100,000 inclusive of disbursements. In Mayer, the Plaintiff claimed $2 million (having amended up from $1.1 million). The jury awarded $137,300. The Plaintiff sought costs of $422,055.41 but was denied costs, altogether.

THE LAW:

[23] In assessing costs, I must consider the cases that have outlined broad principles with respect to costs under s. 131 of the Courts of Justice Act, and Rule 57.01. Section 131 says that costs are discretionary. Rule 57.01(1) says:

In exercising its discretion under section 131 of the Courts of Justice Act to award costs, the court may consider, in addition to the result in the proceeding and any offer to settle or to contribute made in writing,

(0.a) the principle of indemnity, including, where applicable, the experience of the lawyer for the party entitled to the costs as well as the rates charged and the hours spent by that lawyer;

(0.b) the amount of costs that an unsuccessful party could reasonably expect to pay in relation to the step in the proceeding for which costs are being fixed;

(a) the amount claimed and the amount recovered in the proceeding;

(b) the apportionment of liability;

(c) the complexity of the proceeding;

(d) the importance of the issues;

(e) the conduct of any party that tended to shorten or to lengthen unnecessarily the duration of the proceeding;

(f) whether any step in the proceeding was,

(i) improper, vexatious or unnecessary, or

(ii) taken through negligence, mistake or excessive caution;

(g) a party’s denial of or refusal to admit anything that should have been admitted;

(h) whether it is appropriate to award any costs or more than one set of costs where a party,

(i) commenced separate proceedings for claims that should have been made in one proceeding, or

(ii) in defending a proceeding separated unnecessarily from another party in the same interest or defended by a different lawyer; and

(iii) any other matter relevant to the question of costs. R.R.O. 1990, Reg. 194, r. 57.01 (1); O. Reg. 627/98, s. 6; O. Reg. 42/05, s. 4 (1); O. Reg. 575/07, s. 1.

[24] Costs awards have a number of purposes, including to a) indemnify (partly) successful litigants, b) encourage settlement, c) correct behaviour of the parties, and d) discourage frivolous or ill-founded litigation (see 394 Lakeshore Oakville Holdings Inc. v. Misek, 2010 ONSC 7238, at para. 10). Generally costs should follow the event (see Bell v. Olympia & York (1994), 1994 CanLII 239 (ON CA), 17 O.R. (3d) 135 (C.A.)), be proportional to the issues in the action and the outcome, and be reasonable for the losing part to pay, all circumstances considered (see Boucher v. Public Accountants, (2004) 2004 CanLII 14579 (ON CA), 71 O.R. (3d) 291 (C.A.) and Moon v. Sher et al., 2004 CanLII 39005 (ON CA), [2004] OJ No 4651 (C.A.)). Conduct of the parties is also relevant where it deserves sanction (see Davies v. Clarington (2009), 2009 ONCA 722, 100 O.R. (3d) 66 (C.A.)). One party’s playing “hardball” is a relevant factor to consider (see 394 Lakeshore, supra.)

[25] A Judge in fixing of costs is engaged in a different exercise than an Assessment Officer engaged in assessing costs. The Judge does not engage in an arithmetical exercise. Rather, she or he fixes costs in an amount that is reasonable for the unsuccessful party to pay rather than determines the exact costs of the successful litigant (Davies, supra at para. 52, Boucher, supra, at para. 26).

[26] Costs, generally, should be proportional to the issues in the action and amount awarded (Elbakhiet, supra, at para. 36). It does not follow, however, that a reasonable amount for costs cannot exceed the award of damage in appropriate circumstances (A & A Steelseal Waterproofing Inc. v. Kaslovski, 2010 ONSC 2652 (S.C.J.) at para. 21). Proportionality should not override other considerations, and determining proportionality should not be a purely retrospective inquiry based on the award. It should not be used to undercompensate a litigant for costs legitimately incurred (Aacurate General Contracting Ltd. v. Tarasco, 2015 ONSC 45980 (S.C.J.) at para. 13 to 17). In Aacurate, supra, McCarthy, J. said:

I am mindful that the principle of proportionality calls upon the court to consider the amount claimed for costs in relation to the amount recovered in the judgment, as well as the reasonable expectation of the parties. In my view, however, proportionality cannot and should not be routinely invoked to save litigants from the actual costs of proceedings in circumstances where those litigants have put forth a wholly unmeritorious defence to a legitimate claim or have caused the proceeding to become unduly prolonged or complicated. The principle should be applied thoughtfully and in a balanced fashion along with the other factors set out in rule 57.01.

[27] An undue focus on proportionality ignores principles of indemnity and access to justice (see Gardiner v. MacDonald Estate, 2016 ONSC 2770 (S.C.J.) at para. 65). The trial judge must make an award that is fair and appropriate, overall.

[28] In exercising its discretion on the basis of these legal principles, and in determining what costs are payable, the court should consider the following questions in the following order:

a) Which was the successful party, and in what way?

b) Are there Offers to Settle under Rule 49.10 and what impact do they have?

c) What effect do the enumerated factors in Rule 57.01(1) have?

d) Are there any Offers to Settle that should be considered under Rule 49:13;

e) How does proportionality under R. 1.04(1) affect the analysis?

f) What is fair and reasonable for the paying party to pay?

DECISION:

[29] As indicated at the outset of these reasons, Belleghem, J. held that Doyle should have her costs. Therefore, the only remaining issue is the scale of costs and reasonableness of the amount.

[30] For the reasons that follow, Doyle is entitled to her partial indemnity costs, throughout. I fix her partial indemnity fees at $322,829.98, HST on those fees at $41,967.90, and disbursements at $47,786.45. In addition, I award Doyle a further $12,000, all inclusive, for the May12, 2016 appointment to settle Belleghem, J.’s order, and for appearing before me to argue costs. I also deny Wrench her costs.

ANALYSIS:

Which party was the successful party, and in what way?

[31] The Plaintiff was successful. She recovered judgment. Doyle, however, was not as successful as she had hoped to be. She was unsuccessful on most of the significant claims she made.

[32] Zochem is more pointed in its submissions about Doyle’s success. It engaged in a tortured analysis (in this respects, as in many other aspects of its costs submissions) and noted that Doyle was only successful on 3% of her claims (5% if one removes the claim for punitive damages which was abandoned at the outset of trial), when calculated as a ratio of the claims advanced in the Amended Statement of Claim to her recovery.[^2] Zochem says that Doyle claimed 20 times the amount she received. Zochem then says, hyperbolously:

This amount of recovery, particularly in light of the above-noted offers, ought to be viewed as abysmal. In this case, the plaintiff’s unrealistic expectations drove [the] matter to a lengthy, expensive trial. Courts have been highly critical of this behaviour on the part of plaintiffs.[^3]

[33] I will have more to say on Offers to Settle shortly. Suffice it to note at this point that Zochem played hardball equally when it came to Offers to Settle as it did in its dismissing Doyle and in the litigation. It is the “hardball” approach to litigation, more than Doyle’s “unrealistic expectations” that drove this trial, as I address later in these reasons.

[34] A more significant victory for Doyle (and one which Zochem, with its hardball approach to costs ignores) is her successful defeat of the defence of after acquired cause, a defence which Zochem pursued vehemently, but which Belleghem, J. dismissed as flimsy and based on flimsy evidence. Belleghem, J. recognized that some of the evidence concerning Doyle was relevant to the defence of the allegations against Wrench, personally. However, he noted that most of the “mud” evidence was adduced by Zochem in pursuit of its defence of after acquired cause. Belleghem, J. characterised the after-acquired cause claim, and the evidence adduced largely by the Defence in support of it, as follows:

[18] Related to the “Notice Period”, or “cause” issue, is whether Zochem can rely on “After Acquired cause”. The “cause” pleaded is “extortion”. The flimsy evidence in support is: Doyle borrowed money from Philips, a contractor she was dating - (Philips testified he told her she did not need to repay it); and refusing to pay $10,000 for $2,000 drapes to a friend of an employee, (Viveiros) who got her a “deal” on the drapes – (Neither Viveiros nor the drape seller testified).

[19] The original termination was purportedly “Without Cause”. Zochem agrees that Doyle’s work performance was not relevant to the termination itself as a “cause”. It argues, however, that her allegedly poor performance, at least in part, explains Wrench’s motive for firing Doyle, i.e. it meets Doyle’s claim that her termination was “retaliatory”. This “performance” issue consumed a substantial portion of the trial time. It was woven into two defense arguments. Initially it was to defend the alleged “Good Faith” of Zochem, - tied to Wrench’s allegations of “deceit” by Doyle, her alleged abuse of the “lieu hour” system, and Doyle’s alleged abuse of her position to “extort”, referred to above.

[20] Secondly the performance evidence was tendered relative to Wrench as a personal defendant, - the alleged Tort of “Intentional Infliction of Emotional distress”. All of this “performance”, “deceit”, “abuse of position” evidence, and other marginally relevant glimpses into Doyle’s personal, medical, and dating life, were tossed like mud into the defense arguments to “illuminate” Wrench’s true motivation. As I understand it, most of this evidence was meant to show that Wrench never “intended” to cause Doyle any “distress” by how she dealt with her during and after the termination, i.e., she had legitimate work related reasons for how she treated Doyle. Doyle, for her part, and despite a tendency to overstate her strengths and underplay her performance, managed to explain or sidestep most of this so-called “irrelevant” evidence. At times she even turned the mere fact that some of these allegation[s] were made against her into (almost) convincing evidence that Wrench must have had the animus which she was so adamant to deny.

[21] I admonished counsel early on in the trial about the questionable utility of what appeared to be “collateral fact” evidence. However, [i]n the end, it is safe to say that both counsel contributed equally to the fact that this evidence dominated almost the whole trial. Consequently, all this evidence was as relevant, or not, to the entire case against Wrench personally, as it was to the case against Zochem. Her actions were Zochems as well as her own. This entire body of evidence had to do with why, and how, Wrench, both in her own behalf, towards Doyle, and in her managerial capacity, as Zochems vicariously responsible agent, towards Doyle, did the termination. It informs both the “Intentional Infliction of Distress” claim, (against Wrench personally), and the “Moral Damages” claim against Zochem, (next below). This should be a serious cost consideration, at the appropriate time.

[35] He noted that Zochem called “copious evidence” on the after acquired cause defence (paragraph 182). He said further,

[198] In rejecting this defence of “after acquired cause”, and finding that the plaintiff was in fact, wrongfully dismissed, I am giving effect to the following observation, of Justice Halvorson, of the Saskatchewan Court of Queen’s Bench where he notes in his decision in Boyes v. Saskatchewan Wheat Pool, 1982 CanLii 2639 (SK QB), at para. 16:

It is not uncommon in a wrongful dismissal trial for the employer to dredge up every incident arising during the term of employment which might tend to show the employee in an unfavourable light, and the court must be diligent to distinguish between those incidents which comprise the grounds for the dismissal and those advanced for the sole purpose of discrediting the employee.

[199] For these reasons, I am satisfied that the plea for after acquired cause must fail. I find that Doyle was wrongfully dismissed.

[36] In other words, as between Doyle and Zochem, the latter bears the lion’s share of the blame for pursuing a line of evidence that was collateral, and designed to smear Doyle in the litigation. Doyle was successful in her defence of an issue on which the “…evidence dominated almost the whole trial.”

Offers to Settle (Rule. 49.10 and 49.13)

[37] There are no offers to settle from either party which trigger the cost consequences of Rule 49.10. Zochem made 5 offers which require consideration under Rule 49.13, which says:

Despite Rules 49.03, 49.1o and 49.11, the court, in exercising its discretion with respect to costs, may take into account any offer to settle made in writing, the date of the offer was made and the terms of that offer.

[38] The Defendant made the following offers:

a) March 27, 2013

Damages in lieu of notice – 9 mo.s net of ESA payments.

18,671

Damages for health, dental and life ins. – 9 mo.s

900

Short term disability benefits

37,342

Breach of Human Rights Code

50,000

Costs

60,000

Disbursements

4,000

PJI

4,350

Total

175,236

[39] This offer was open until one minute after the commencement of the trial.

b) July 23, 2013

$220,000 all inclusive. Zochem’s counsel said that it was increasing the March 27, 2013 offer. The increased offer was only open until July 31, after which the March 27, 2013 offer remained. Counsel said: “This time-sensitive offer is made in a good faith effort by our client to attempt an early settlement for the economic benefit of both parties. Should this offer not be acceptable to your client, we are instructed not to engage in any further settlement discussion but to proceed to trial in reliance on our client’s Rule 49 offer.”

c) December 3, 2013

$85,000, all inclusive. This was for all heads of damage (except the claim for pecuniary damages arising from the failure to provide long-term disability benefits), interest, costs and disbursements. Zochem said it would try the issue of the LTD claim. This offer was open only to January 3, 2014. It did not leave the March, 2013 offer open for acceptance.

d) June 29, 2014

Damages in lieu of notice – 12 mo.s, net of ESA payments

41,272

Damages for health, dental and life coverage – 9 mo.s

1,200

Profit sharing bonus

2,600

Human Rights Code Damages & mental distress

45,000

PJI

TBD

Costs

TBD

Total

90,072

[40] This offer was open for acceptance until one minute after trial.

e) October 29, 2015

Damages in lieu of notice – 12 mo.s net of ESA payments

47,930.34

Damages for health, dental and life coverage – 9 mo.s

1,200.00

Profit sharing bonus

2,600.00

13 hours lieu pay

455.39

Pension plan contribution – 12 mo.s

9,608.00

Human Rights Code Damages, moral damages & mental distress

55,000.00

LTD claim

15,000.00

OHUIP

1,402.50

PJI

TBD

Costs

TBD

Total

133,196.23

[41] This offer was open until one minute after the commencement and was not severable.

[42] All parties agreed that none of these offers met the requirements of Rule 49.10.

[43] Zochem argued that the trial result (by which it means the award of money at the trial, only) must be weighed in relation to the various offers, including with respect to “…the costs incurred [by the Plaintiff] at the time the offers were made”. In this latter respect, Zochem’s counsel lead me through a labyrinthine analysis of a) what the costs portions of the various offers were or would have been at the time the time they were made, and b) the costs that the Plaintiff had actually incurred as of the date of the various offers. It did this in order to show that the Plaintiff would have sustained a significant “windfall” had she accepted the various offers when they were made.

[44] Zochem’s submissions on the offers are flawed. Offers to settle should not be considered on an issue by issue basis, but on whether the offer, as a whole, is more favourable than the result (see Skye v. Matthews (1996) 1996 CanLII 1187 (ON CA), 47 C.P.C. (3d) 222 (C.A.)). With its offers of July and March, 2013, Zochem requires the court to do an analysis of what the costs portions of that those offers would have been at the time the offer was made, and then do an analysis of the Plaintiff’s bill of costs to see what the actual solicitor and client bill would have been, in order to determine the windfall.[^4] Zochem continues its creative calculus by saying that its last offer is only $7,653.26 short of the judgment, yet the Plaintiff spent $441,786.50 in solicitor and client fees after the date of that offer in order to gain that $7,653.26.

[45] Zochem requires the Court to perform extraordinary calculus in order to support Zochem’s position on costs. No authority was given to support the proposition that the Court is required to do the calculus suggested. I decline to do it.

[46] Zochem’s offers, when viewed in light of Belleghem, J.’s comments about Zochem’s approach to Doyle’s dismissal and the litigation in general, can be seen as an extension of its hardball tactics, taken from a position of power. It made its first offer. It increased it slightly for a short period then removed it from the table. It then made two offers of about half of its earlier offers one of which had a very short acceptance window. The time limits placed on three of the offers are reminiscent of the ‘take it or leave it’ approach Belleghem, J. found that Zochem applied to the termination letter. This is reminiscent of how it presented its termination package to Doyle.

[47] There is merit in Zochem’s argument that its last offer, served 32 days before trial, is relevant under Rule 49.13 as it falls short of the judgment by only $7,653.26. There is also merit in Zochem’s argument that Doyle made only one offer, and only on the eve of trial. I have considered this in my fixing of costs.

Rule 57.01

[48] I have considered the following aspects of Rule 57.01.

a) Principle of indemnity, experience of counsel, rates and hours.

[49] Zochem took no open issue with the rates or experience of Plaintiffs’ counsel. Inferentially, however, Zochem took the position that the time on the file was excessive, caused by Doyle’s counsel being poorly organized, giving poor time estimates and then missing them grossly, advancing spurious causes of action, changing witness lists, and making snap demands and snap decisions. Likewise, Doyle makes allegations of inefficiency against Zochem’s lawyer.

[50] Most of the issues that both parties raise about things done that increased costs require me to make findings of fact that I cannot make on the record before me. Each submitted emails and correspondence on the various issues they raised. I am not confident that I saw from either or both a complete record on the issues each complained of concerning the other. Further, neither lawyer called up the record or any part of it in support of his or her position about the trial related conduct of the other, nor submitted affidavit evidence.

[51] I have reviewed Doyle’s Bill of Costs. I was not provided with dockets, nor does it seem that they were asked for. I cannot say that the hours worked were unreasonable given the nature of the litigation. Further, the ratio between time spent preparing to time spent in trial is slightly over 1:1.

b) What would the unsuccessful party reasonably expect to pay?

[52] Based on the Defendants’ Bill of Costs, Zochem cannot be surprised about the time and disbursements incurred by the Plaintiff. Zochem’s time and disbursements are considerably more than the Plaintiffs’. For example, the solicitor and client fees incurred by the Plaintiff are $496,661.50 and the Defendant, $682,413. Zochem’s solicitor and client bill is $185,751.50 or 37.4% higher that the Plaintiff’s.

c) The amount claimed v. the amount recovered.

[53] There is a significant discrepancy here. I address this as part of my discussion of proportionality.

d) Complexity of the case and importance of the issue.

[54] This case was complex. In retrospect, however, the case was more complex than it needed to be. Doyle contributed to the unnecessary complexity by pursuing causes of action which had little or no hope of success. The claim for long term benefits is an example. She did not sue the LTD carrier.

[55] What contributed complexity to this action, more than any other factor was Zochem’s defence of after acquired cause. According to Belleghem, J., the defence had little merit. Zochem knew it had no cause to dismiss Doyle, and therefore, dismissed Doyle without cause. Wrench began looking for cause in order to prevent the sexual harassment complaint from ‘rearing its ugly head’. She charged a number of employees with finding that cause. They could not. Zochem raised specious concerns regarding Doyle’s performance. Belleghem, J. dismissed every one of them. Notwithstanding the paucity of credible evidence, Zochem pursued the defence and introduced the “mud” evidence which, as Belleghem, J. found, consumed half the trial time.

[56] The issues were important, especially to Doyle. She was terminated. She was given a “take it or leave it” notice payment. Her dismissal came at a time where her sexual harassment complaint had been investigated and determined to amount to little by the very woman who terminated her. The investigation was one sided and the outcome obvious before the investigation began.

[57] This litigation was important, too, to Zochem, but for reasons unrelated to the litigation. As Belleghem, J. found, Zochem’s parent company wanted to sell Zochem. It needed to rationalize the workforce which meant dismissing Doyle, the only female employee. It wanted to make her sexual harassment complaint go away before it ‘reared its ugly head’, which meant having Doyle sign a release of all claims including under the Human Rights Code.

e) Proportionality and Reasonableness

[58] Zochem urges me to award Doyle no costs based on its purely financial analysis: her claim vastly exceeded her recovery, her fees and disbursements were vastly disproportional to the recovery, her recovery barely exceeded Zochem’s last offer, and Doyle would have been better off accepting at least 3 of the 5 offers Zochem made. Further, Zochem puts proportionality forward as an overriding principle.

[59] This focus is too narrow. The cases tell us that a) proportionality should be approached holistically and in conjunction with Rule 57.01 considerations, b) proportionality is considered based on the amount recovered AND the issues in the action, and c) proportionality is the conjoined twin of reasonableness.

[60] While the Plaintiff’s claim for costs is excessive on Zochem’s analysis, it is not so, looking at the action as a whole. Doyle’s costs were driven, in large measure, by the Defence. Belleghem, J. found that the defence of after acquired cause and the evidence in support of it took half the time at trial. What did Bellegham, J. say about the defence of after acquired cause and the evidence adduced in furtherance of it?

Para. 18 and 193 – After acquired cause was a “flimsy defence” supported by “flimsy evidence”.

Para. 4, 65 and 192 – the “extortion” and alleged abused of position claimed was without foundation. Doyle is alleged to have used her position to extract a loan from a contractor, then not repay it. The alleged creditor said he never expected it to be paid back. Doyle was alleged to have agreed to buy drapes from another employee, taken them, and not paid for them. That employee and the seller were never called to testify.

Para. 193 - But for Zochem putting forward the flimsy defense of after acquired cause based on Doyle’s alleged deceit, dishonesty and abuse of her position of authority, all of the related evidence would have been excluded as irrelevant collateral evidence.

Para. 194 – “Zochem’s written submissions dealt only with Doyle’s relationship with Philips and Viveiros to support the claim for “after acquired cause”. However, much evidence was led by Zochem, purportedly for the purpose of meeting Doyle’s claim that Wrench personally intended to cause Doyle distress, the personal tort action against Wrench, some of which dealt with alleged dishonesty and deceit. This conduct will not support a claim for after acquired cause. Lest Zochem’s counsel did not intend to abandon the efficacy of this evidence, either to impugne Doyle’s credibility generally, or to support a claim that the alleged abuse of authority vis-à-vis Philips and Viveiros could somehow be augmented by Doyle’s alleged dishonesty and deceit towards Wrench, the after acquired cause pleading should be put to rest.”

Para. 197 – “I accept Doyle’s evidence that she never behaved dishonestly towards Wrench She never held out Critchow's sign out sheet as her own. She always reported her lieu hours as required, and as accepted, by Chesiuk. She never engaged in any conduct that could, by any stretch of the imagination, be characterized as “egregious conduct that destroys the very foundation of the employment relationship”.

[61] More generally, Belleghem, J. commented on Wrench’s animus and behaviour. Some of his comments are:

Para. 13 – “Wrench’s experience was limited to accounting. … She mangled the termination process. She ventured into a minefield of legal and emotional issues, the complexity of which she could hardly have imagined. Her Human Rights Code “investigation”, (her first), into the sexual harassment complaints, was biased, prejudged, hurried, and incomplete. Her termination letter told Doyle that if she refused the 6-month Common Law severance package being offered, she would only get her 8 week minimums under The Employment Standards Act, i.e., forfeit her Common Law notice rights, despite the termination being allegedly “without Cause”. She was given a week to accept or reject. Her pension entitlements were 2 years late being given. She gave no rational written, or verbal explanation for how various numbers in the package were arrived at, to help identify areas of disagreement. Even when Doyle refused the package, part of her ESA minimums, specifically referred to in the termination letter, were not paid until later. This was because, as Wrench candidly testified, she was “learning on the job”. She received, but ignored, Human Resources advice from the HudBay H.R. second in command, Karl Austmann (Austmann). (HudBay is Zochem’s parent company, and Zochem had no H.R. department). She purported to investigate, and then deny, a Short Term disability claim made by Doyle, despite an “Administrative Services Only” contract Zochem had with a neutral Third Party Insurer to adjudicate such claim, ”

Para. 14 – “Wrench’s expertise was finance. This is why she was made Assistant General Manager (AGM). Zochem’s General Manager (GM), Mike Humphries, (Humphries), had appointed her in December 2010 as AGM to ready the company for imminent sale. At human resources, (HR,) Wrench was a novice. Her focus was primarily on what Humphries likely asked her to manage, the “bottom line” i.e. finances. Intimately involved in a matter of grave personal importance to all persons concerned, her purported “delegation” of the termination process to a neutral third party “expert”, Cheryl Lang, (Lang), was both flawed and incomplete. In short, she displayed a capricious and cavalier attitude to both the problem and the persons. It is for this reason that Doyle brought her personally into this action.”

Para. 101 – “In Wrench’s cross-examination a number of serious inconsistencies between Ghanam’s evidence and Wrench’s evidence respecting Doyle’s NCF’s were brought out that show nothing more than Wrench’s antipathy towards Doyle.”

Para. 103 – “Performance was not made an issue, either at termination, or in the trial. The relevance of the NCF’s has only to do with the state of mind of Wrench when she fired Doyle, i.e. whether she was motivated to terminate Doyle, or interact with Doyle the way she did in the course of the termination process, because of what she believed of Doyle’s performance, or whether there were extraneous matters which motivated her.”

Para. 107 – Wrench attempted to make much of an accident involving a jumbo mould that flipped June 10, 2011 that could have resulted in injury. Doyle was not involved in the accident. Wrench was merely looking for evidence of poor performance to justify terminating Doyle.

Para. 132 – Wrench was manipulative in her evidence. “Two times, at least, during cross-examination, Wrench testified that she was bothered when she saw Doyle cry. However, in her examination for discovery, October 24, 2012, she refused to answer a similar question. It was answered later. The question was: “did it bother you to see her cry?” The answer ultimately given on April 18, 2013 was: “no, Wrench was not bothered by seeing Doyle cry.” Wrench said she does not recall giving this answer. She said she did not see a chart of answers which was given by Zochem’s counsel to Doyle’s counsel. She said the answer is not correct, but that the answer could be viewed different ways. She does not recall answering it that way. It would not be her intention to have it look this way. This kind of testimony suggests that the witness is trying to control perception of the situation, by the content of her testimony, which brings into question her credibility.”

Para. 134 – Wrench was untruthful. “Wrench tried to leave the impression that she did not know why Doyle was unhappy in her work, (in the plant, is what I find). Wrench knew about Doyle’s depression because Olgivie told her she was on antidepressants. If Wrench were a little more empathetic, she could certainly speculate why Doyle, emotionally fragile because of her mental health, and to whom she had thoughtfully delivered a Christmas plate, might find her job challenging. She could not help but take account of the fact that Doyle was supervising a number of men. That put her in a particularly difficult and vulnerable position, because she had to rely so heavily on Rogers, in particular, who advertised his taste in art, and interest in women, with his office décor. The above, in light of her reaction to Doyle’s disclosure on July 14 [of the sexual harassment by Rogers], and her very rapid disposition of the matter, suggests strongly that she knew that Doyle was unhappy, and why, and is simply being misleading. It is certainly in her interest, and that of Zochem, who has taken on defence of her personal case, and to whom she is therefore indebted, to do so. I find her evidence that she knew “nothing” about the sexual harassment complaint before July 14, 2011 to be improbable.”

Para. 154 – Wrench was untruthful. “Wrench referred to the termination letter. In it, she said Doyle was offered six-month’s salary less deductions, and that they would “make payment based on a signed release”. This supports Doyle’s perception that it was a “take it or leave it” proposition. Wrench confirms that she said that if she would not sign the release they would pay the statutory payments pursuant to ESA, but “nothing further”. It is clear that there was no intent to negotiate expressed in the letter, and that Doyle was being asked to release all claims, including any Human Rights Code claims she might have, for six months’ salary in lieu of notice, or face only being paid the ESA payments. “

Para. 160 – Wrench acted unreasonably. “After termination, according to Wrench, when Doyle applied for STD, she spoke to Lang [the HR consultant], who suggested she get legal advice. Zochem had the right to have Doyle examined with respect to the disability, so she got a recommendation for a lawyer from Lang, and ordered the medical report. When she got the report [which supported Doyle’s position], she decided to deny STD payments, because the lawyer said the complaint arose from the fact of the termination, instead of exacerbating a prior condition. A different basis for denial was put forward at trial.”

Para. 163 to 164 – Wrench had no experience with or training in the Human Right’s Code. She investigated the sexual harassment complaint after she decided to terminate the person making the complaint. Her investigation and course of action following it was perfunctory and incorrect.

Para. 165 to 166 – Wrench said at trial that her investigation of the Human Rights issue had nothing to do with the dismissal. Including the HRC claim in the release and emails to others about preventing the Human Rights complaint from ‘rearing its ugly head’ indicate that eliminating the HRC complaint to ready the company for sale was a factor in the dismissal.

Para. 169 – Wrench said that she was always willing to negotiate the termination. Her termination letter and the events at the meeting with Doyle indicate that it was a ‘take it or leave it’ proposition. Wrench never invited negotiations or offered to extend the offer beyond July 29.

Para. 173 – Wrench avoided answering questions directly. She prevaricated.

Para. 175 – Wrench never told Doyle that her dismissal was because of performance issues. She told her the opposite – her job was not in jeopardy.

Para. 184 – After making the decision to terminate Doyle, Wrench denied short term disability despite medical opinion by the company’s doctor of choice who supported the LTD claim.

Para. 188 – Wrench’s hard line with Doyle supports the conclusion that Doyle’s dismissal was a way of getting rid of the only female in a plant staffed by men, and of getting rid of the sexual harassment complaint before Zochem could be sold.

Para. 214 to 219 – Zochem’s behaviour, for the most part through Wrench, provided ample evidence for a moral damages claim. Zochem needed to be rid of Doyle and her sexual harassment complaint in order to “trim the fat” and get Zochem ready for sale. Wrench’s dealings with Doyle were “completely disingenuous”. She tried to “dig up dirt” in order to find cause for Doyle’s dismissal, enlisted others to support her, but could find none. After acquired cause was never supported, and was nothing more than a “red herring”.

Para. 228 – The only reason to dismiss Doyle was her gender and her sexual harassment complaint.

Para. 241 et seq. – The termination was cold and brusque. Doyle’s personal privacy was callously invaded when someone else cleared out her personal effects and went into her purse to obtain car keys in order to bring her car to the front of the office building, all without her knowledge or consent.

Para. 253 - The basis for denial of STD benefits was spurious. All Zochem had to do was pay the six month’s STD, (that was the maximum length of STD payable) on a “without prejudice basis,” claiming credit for the same six-month severance it was already prepared to pay. “This would have been a positive show of good faith. However, taking the position it did, merely added to the breach of its obligation of good faith, giving rise to the moral damage claim. The manner in which the STD claim was handled simply perpetuated the highly focused tunnel vision approach taken by Wrench and Zochem to getting rid of Doyle”.

Substantial or Partial Indemnity?

[62] Doyle says that I should award substantial indemnity costs for the action. She relies heavily on Belleghem, J.’s comments and recommendations. The pre-trial conduct of the Defendants, through Wrench, was reprehensible. The conduct of the Defendants at trial, and that of their counsel, was also reprehensible. This conduct should be punished through a higher scale if costs.

[63] I have carefully considered the comments, findings and recommendations of Belleghem, J. as well as all the factors in Rule 57.01 and the jurisprudence. Subject to my analysis of Doyle’s claim for substantial indemnity costs from Wrench, below, I award Doyle partial indemnity costs for the action. I decline to award her substantial indemnity costs for the following reasons:

a) First, she made no offer to settle that complied with Rule 49.10. Doyle made no offer to settle until the eve of trial. There were some settlement discussions. However, following those discussions, the Defendants made offers. The Plaintiff did not, despite the Defendants’ entreaties to do so. A court is permitted to consider the parties settlement positions, whether they are consistent, whether they are reasonable, and any party’s refusal to respond (see Martellacci v. CFC/INX Ltd. (1997) 1997 CanLII 12327 (ON SC), 10 C.P.C. (4th) 143 (Gen. Div.).

b) Second, Belleghem, J.’s recommendation that I award Doyle costs at a substantial indemnity basis for the 50% of the trial that was devoted to scrutiny of Wrench’s evidence (para. 337) is at odds with other findings he made. The most significant of Belleghem, J.’s findings conflicting with his recommendation re solicitor and client costs is his finding that a) the “mud” evidence was as relevant (partially, although tangentially) to Doyle’s claim for damages against Wrench, as it was to Zochem’s defence, and b) both counsel contributed equally to the fact that this evidence dominated almost the whole trial.

c) Third, the amounts that Doyle claimed are excessive, on any reasonable reading of the Reasons for Judgment. She knew that. Her counsel in her costs submissions conceded that the claims were excessive when she said that everyone knew this, including the Defendant.

d) Fourth, Doyle’s claim was unsuccessful in many respects, including the claims involving the most significant amounts.

e) Fifth, both parties invited me to criticise the other, and the other’s counsel, for things done at trial. I was not present at trial. I was not given a complete record to adjudicate on the defalcations submitted to me. In any event, a court should be wary of second guessing how a trial was conducted (see Foulis v. Robinson (1978), 1978 CanLII 1307 (ON CA), 21 O.R. (2d) 769 (C.A.).

f) Sixth, the Defendants’ last offer is relevant. The Defendant played hardball in making its offers, no doubt. The Defendant is entitled to do so. It made an offer 32 days before trial, which was only $7600 less than the judgment (net of pre-judgment interest) that was open until one minute after the commencement of trial. This offer did not trigger favourable Rule 49.10 consequence for the Defendant. It is still one which, because it was so close to the amount of the judgment, should be taken into consideration in fixing costs.

Disbursements

[64] Zochem claims a reduction of $20,213.49 from Doyle’s claim for disbursements of $48,161.45. Zochem says that these disbursements were all related to the tort of intentional infliction of mental distress and the Plaintiff’s claim for short term and long term disability, and future care costs. Zochem says that where disbursements are solely related to unsuccessful claims, they should not be allowed (see Phanlouvong v. Northfield Metal Prod. Ltd., 2015 ONSC 33 at para. 21).

[65] Disbursements may be allowed, in the judge’s discretion, where it was reasonable to retain and call the witness to testify as to the effects of the Defendant’s acts on the Plaintiff. If it was reasonable to call the witness, the disbursement will be allowed, even though the award did not include anything for the heads of damages on which the witness spoke. The party seeking the disbursement, however, must have called the witness to testify or filed a report, in order to have the disbursement paid (see Grammatic v. Medeiros Estate, 2012 ONSC 5640 at para. 61-62).

[66] In this case, based on the manner of the dismissal and its aftermath, it was reasonable to advance claims for mental distress, loss of short term and long term disability, and for future care costs. The long term disability claim was still-born, however, the insurer not having been made a party. Doyle, having made the claims, was obliged to put her best foot forward in advancing them (see Grammatico, supra, para. 62). Therefore, the real issue with respect to recovery of the disbursement is whether the disbursement was reasonably incurred, the report was served, and/or the expert was called. There is no allegation that any expert ‘ran amok’, and on that basis the disbursement should be disallowed (see Hamfler v. 1682787 Ont. Inc., 2011 ONSC 3331)

[67] It is usual and reasonable in any case where bodily or psychiatric injury is claimed to produce medical notes and records relevant to the claims made. Those disbursements are allowed.

[68] Medical-legal reports were commissioned from Dr.s Kerr, Guirguis, and Dimitrakoudis, which were submitted to the Defendant. From the Reasons for Judgment, the reports of Dr.s Kerr and Guirguis were submitted to the Court under the Evidence Act. Dr. Kerr’s report was specifically referred to in the Reasons for Judgment. Dr.s Guirguis’ recommendations were referred to as well, although it is not clear whether Belleghem, J. relied on Dr. Guirguis’ notes and records or his report. The disbursements related to these doctors are allowed.

[69] Collins Barrow prepared a report on future losses, including loss of pension. Accountant Posel testified. Even though the claims for STD and LTD payments, and future losses were not allowed, Belleghem, J. relied on the accountant for his award of future pension losses. These disbursements are allowed.

[70] Dr. Cooper prepared reports and testified. These disbursements are allowed.

[71] The only disbursement I disallow is $375.00 paid for Dr. Dimitrakoudis’ report. He does not appear to have been called. It is unclear whether his report was filed with the Court. The onus to satisfy me of the recoverability of the disbursement is on the Plaintiff, which she has not discharged.

Wrench’s Claim for and Exposure To Costs

[72] Doyle seeks costs from Wrench on a substantial indemnity basis notwithstanding that Wrench was successful in her defence. Doyle cites Belleghem, J. saying that Wrench’s actions on behalf of Zochem made the trial necessary. Wrench’s conduct was such that Belleghem, J. recommended that Doyle be awarded her costs of prosecuting her case against Wrench on a substantial indemnity basis, notwithstanding that Wrench was successful in her defence that her employer was vicariously liable (see para. 337). He estimated that scrutiny of the actions of Wrench took 50% of the trial’s time.

[73] Wrench, on the other hand, seeks her costs from Doyle on a partial indemnity basis. Without quantifying her claim, she seeks a proportionate share of the defence Bill of Costs, notwithstanding Belleghem, J.’s comments that both counsel contributed equally to the fact that the “mud” evidence dominated the trial. That evidence was as relevant to the claim for moral damages against Zochem and the claim of intentional infliction of mental distress against Wrench as it was to Zochem’s defence of after acquired cause. Wrench was never determined to be acting out of the scope of her employment.

[74] The Defendants rely on Stradiotto v. BMO Nesbitt Burns Inc., 2017 ONSC 1760, in which the Plaintiffs were unsuccessful in obtaining a cost award against bank employees for whom the bank was vicariously liable. In that case, Mew, J. held that the employees were not necessary parties to the action, and it made no commercial sense and was unreasonable that the employees should be responsible for the costs of an action in which they were not necessary parties, but the employer was (at p 45).

[75] Dealing first with Doyle’s claim for costs from Wrench, personally, I deny that claim, notwithstanding Belleghem, J.’s recommendations. Based on Belleghem, J.’s findings, Wrench was a necessary party even if it were solely for the purpose of oral discovery. Based on Zochem’s approach to the trial, I have no doubt that the Defendants would have produced representatives for oral examinations other than Wrench in order to control damaging evidence. I also have no doubt that the Defendants would have vociferously resisted any order that she be produced on behalf of the Defendants. Further, the action against her was reasonable, based on the evidence. A different judge hearing the same evidence reasonably may have come to the opposite conclusion.

[76] Awarding costs against a successful litigant is an extraordinary remedy. A successful party has a reasonable expectation of an award of costs, and should not be deprived of costs except in special circumstances (see Bell Canada, supra; Gonawati v. Teitsson, 2002 CanLII 41469 (ON CA), 2002 CarswellOnt 1007 (Ont. C.A.)). In an employment case, the circumstances to justify an award of costs against a successful litigant include reprehensible conduct or conduct by the employer that is contrary to its moral commitment in a company policy or correspondence (see King v. Gulf Canada Ltd. (1992), 45 C.C.E.L. 238 (Ont. C.A.)).

[77] In this case, I see no special circumstances that suggest that an award of costs against a successful party, on a substantial indemnity basis is warranted. In saying this, I am cognizant of Belleghem, J.’s comments and recommendations. I differ, however, for four reasons:

a) First, Belleghem, J. neither made an award of costs to or against Wrench, nor set the scale of costs. He left it to me to decide.

b) Second, Wrench’s misconduct identified in the Reasons for Judgment is not sufficient to sustain an award of costs against a successful party, even one whose success is as tainted as Wrench’s.

c) Third, the lawyers argued bitterly over various other incidences of alleged misconduct during the trial, each of the other. Their comments in the costs argument, one of the other, provide me with insight as to how hard fought this case was. While Zochem’s tactic and Wrench were criticised by Belleghem, J., I cannot conclude that the Defendant’s lawyer was the sole cause of difficulties. As indicated above, I doubt that either presented me with the complete evidence on any point. Most of the events over which counsel fought required evidence beyond correspondence. No one called forward the record of the trial, nor submitted any affidavit in support of their position on the various alleged transgressions of the other.

d) Fourth, I consider the impact of Zochem’s last offer. It was close enough to the result at trial that when coupled with the extreme amounts Doyle claimed, all things considered, the extreme remedy of an award of costs against a successful litigant is not awarded.

[78] I now turn to Wrench’s claim for costs from Doyle. I deny Wrench her costs, although she was successful in the action. Denial of costs to a successful litigant should only be done in exceptional circumstances (see Bell Canada, supra). In this case, such circumstances exist.

[79] At paragraph 14, Belleghem, J. says that given Wrench’s actions in dismissing Doyle it is understandable that she was named personally. Belleghem. J. found that Wrench’s actions were all taken on behalf of her employer, Zochem, in furtherance of its mandate to put the company into shape for sale, and those actions gave rise to this action. Belleghem, J. says at paragraph 255:

“…There is also no question that Wrench was a primary author of the actions that gave rise to Doyle’s mental distress. Given the central role that Wrench played on behalf of Zochem throughout the termination process, there is no feasible way of separating out the actions of Wrench from those of Zochem with respect to the evidence called at trial. In other words, whether or not Doyle had made specific claims against Wrench, personally, the trial would not have been shortened. Therefore, any cost consideration on behalf of Wrench should take into account the fact that it was Wrench’s actions, albeit on behalf of Zochem, that were the fundamental reason for this trial having become necessary. I make this comment because, while I am dismissing the action against Wrench personally, it is my view that this dismissal should not entitle her to any cost consideration in her favour, as all of the evidence required to have been led by her in her personal defence would have had to have been led in the case against Zochem in any event, in which Doyle has been successful.”

[80] I agree wholeheartedly with Belleghem, J. at para. 264 where he says: “Based on my comments above, Wrench should most certainly not be entitled to any costs, despite the fact that the claim against her is being dismissed. Denial of costs may be sufficient justice….”

[81] If I am wrong in denying Wrench her costs, I would not have fixed her costs in any amount. There are two reasons for this. First, the Defendants submitted one bill of cost. No specific amount was claimed on behalf of Wrench. The Defendants merely asked that she be awarded a ‘proportionate share’ of the defence costs. Her obligation is to set out the specific amount she seeks. She did not do so.

[82] Second, and in any event, where there are several defendants all represented by the same counsel, and the action is dismissed against one of them, the successful defendant is entitled to costs. The costs that may be awarded, however, are those incremental or additional costs made necessary by the presence in the action of the successful defendant (see Orkin on Costs, title 209.1, p. 1-17).

[83] In this case, Wrench has no costs to be awarded. Why do I say this?

[84] The Defendants presented no evidence as what, if any, increased or incremental costs were generated by Wrench’s presence in the action.

[85] Further, based on Belleghem, J.’s Reasons for Judgment, I find that no time or work in this file would have been saved had Wrench not been a party. The Defendants would have called her as a witness, in any event. Her evidence was necessary. She was the main actor in Doyle’s dismissal. She would have given all of the “mud” evidence even as a witness. It was central to the defence of after acquired cause which I find (based on the Defendants’ hardball approach to this case) the Defendants would have advanced even if the Plaintiff had not claimed against Wrench personally. This defence required the “mud” evidence to be called.

ORDER:

[86] The Plaintiff shall have her costs on a partial indemnity basis as follows:

Fees: $322,829.98

HST on fees $ 41,967.90

Disbursements $ 47,786.45.

Settling Order and Costs argument $ 12,000.00, all inclusive

Total $424,584.33

[87] These costs are to be paid by March 31, 2016, at 4 p.m.

[88] Wrench’s claim for costs is dismissed.

Trimble J.

Released: February 3, 2017

CITATION: Doyle v. Zochem Inc. et al., 2017 ONSC 920

COURT FILE NO.: 794/12

DATE: 2017 02 06

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Melissa Doyle, Plaintiff

AND:

Zochem Inc., Horsehead Corp., Horsehead Holding Corp. and Stephanie Wrench, Defendant

BEFORE: Trimble, J.

COUNSEL: A. Assuras, Counsel for the Plaintiff

M. Smith and R. Leck, Counsel for the Defendants

COSTS Endorsement

Trimble J.

Released: February 6, 2017

[^1]: 79,666.45, less a credit of $23,816.96 paid under the Employment Standards Act. [^2]: Para. 38 to 40 Zochem’s submissions. [^3]: Para. 41 Zochem’s submissions. [^4]: Para.s 19 to 25, Zochem’s submissions.