COURT FILE NO.: CV16-056SR
DATE: 20180307
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
John Hugh McNabb
Anteneh F. Kassa, for the Plaintiff
Plaintiff
- and -
Troy Clouatre and John H. McNabb Construction Ltd.
Michael A.G. Forcier, for the Defendants
Defendants
HEARD: In Writing
REASONS FOR DECISION ON COSTS
Conlan J.
I. Introduction
[1] The Plaintiff, John Hugh McNabb (“McNabb”), sued the Defendants, Troy Clouatre and John H. McNabb Construction Ltd. (collectively “Clouatre”), for wrongful dismissal and/or breach of contract.
[2] Clouatre alleged just cause for McNabb’s dismissal. Clouatre counterclaimed for damages due to McNabb’s negligence, unlawful taking of business property, and so on.
[3] After a very brief trial, this Court held that just cause had been proven, and there was no contract for “a job for life”, as alleged by McNabb. The Plaintiff’s Claim was therefore dismissed in its entirety.
[4] The Counterclaim was allowed in part, in the amount of $13,729.00.
[5] Unable to settle the issue of costs, written submissions have been filed by the parties.
[6] Clouatre seeks costs in the total amount of $39,364.74. It should be noted that the said sum includes $33,250.00 for fees, before tax. It should also be noted that the said sum is described as being substantial indemnity recovery, although the Bill of Costs suggests that it amounts to full recovery.
[7] McNabb submits that “nominal” costs ought to be awarded to Clouatre.
II. Analysis
[8] Clouatre made three settlement offers. McNabb made none that has been disclosed to this Court.
[9] All three of Clouatre’s offers to settle were reasonable. After trial, Clouatre met or exceeded all three of them.
[10] The first offer was dated January 10, 2017 and expired January 31st of the same year. It would have seen Clouatre pay to McNabb $6000.00 in exchange for the signing of a standard non-disclosure agreement.
[11] The second offer was dated June 14, 2017 and expired June 30th of the same year. It would have had Clouatre pay to McNabb $14,000.00, with the same other terms.
[12] The third offer was dated November 20, 2017 and expired at the commencement of the trial. It would have seen Clouatre pay to McNabb $10,000.00, with the same other terms.
[13] Clouatre is presumed to be entitled to some costs. He was, by far, the more successful party after trial. He was, by far, the more reasonable party before the trial in terms of trying to resolve the case against his uncle, McNabb. Finally, he and his counsel were better prepared at trial.
[14] Costs are discretionary. The overriding aim is to make an award that is fair, just and reasonable in all of the circumstances including a consideration of the reasonable expectations of the losing side.
[15] Modern costs awards are meant to partially indemnify successful litigants, encourage settlement, and discourage or sanction inappropriate conduct by litigants. As well, proportionality is key.
[16] I agree with Mr. Kassa that there are a few questionable items in the Bill of Costs filed by the winning side.
[17] In the end, I have decided that an award that is the equivalent of about 50% of full recovery for Clouatre, or $20,000.00 all-inclusive, is appropriate.
III. Conclusion
[18] McNabb shall pay to Clouatre costs in the total amount of $20,000.00.
Conlan J.
Released: March 7, 2018
COURT FILE NO.: CV16-056SR
DATE: 20180307
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
John Hugh McNabb
Plaintiff
- and -
Troy Clouatre and John H. McNabb Construction Ltd.
Defendants
REASONS FOR DECISION ON COSTS
Conlan J.
Released: March 7, 2018