Court File and Parties
COURT FILE NO.: CV-17-568291 DATE: 20180611
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
ANDRE SINGER Plaintiff
– and –
NORDSTRONG EQUIPMENT LIMITED Defendant
Counsel: Jeff Hopkins, for the Plaintiff Gerald Griffiths, for the Defendant
HEARD: WRITTEN SUBMISSIONS
COSTS ENDORSEMENT
DIAMOND J.:
[1] In a decision released as Singer v. Nordstrong Equipment Limited 2018 ONCA 364, the Court of Appeal for Ontario allowed an appeal, in part, of my Judgment released on October 6, 2017, and varied my Judgment by awarding the plaintiff (a) $166,945.00 for lost bonus payments and (b) $9,458.00 for lost benefits all during his 17 month notice period.
[2] At paragraph 27 of the Court of Appeal for Ontario’s decision, the issue of the costs of the original motion for summary judgment was referred back to me for disposition as the motion judge. Pursuant to the terms of a fixed schedule, I have now received and reviewed the parties’ respective costs submissions.
[3] In my original Costs Endorsement released on November 28, 2017, I awarded the plaintiff his costs fixed on a partial indemnity basis in the all-inclusive amount of $20,000.00 based upon my view at the time that despite some mixed success between the parties, the plaintiff was the “slightly more” successful party on his motion for summary judgment.
[4] In light of the decision of the Court of Appeal for Ontario, the defendant does not dispute that the plaintiff (a) was the more successful party in this action, and (b) ultimately obtained a judgment which was more favourable than his Offer to Settle dated July 10, 2017 thereby entitling him to costs on a substantial indemnity basis from that date onward.
[5] Thus the only real issue for my determination is quantum. The plaintiff seeks costs in the all-inclusive amount of $54,000.00. This sum is more than the original sum of $43,562.00 sought by the plaintiff the first time, in part due to the portion of costs now claimed on a substantial indemnity basis.
[6] The defendant submits that taking the Rule 57.01(1) factors into account, and regardless of the cost indemnity scale(s) used by the plaintiff, the costs claimed are simply excessive and must be reduced to the range of $32,500.00.
[7] I find the issues raised on the motion for summary judgment to be of average complexity. The amount at issue, and now recovered by the plaintiff, was considerable. There is no doubt that the issues raised on the motion were very important to the plaintiff having been terminated from his employment at 53 years of age after 11 years, and unable to locate comparable employment as at the date of his motion for summary judgment.
[8] I had previously reviewed the plaintiff’s Costs Outline, and found the hourly rates charged therein to be reasonable. In my original Costs Endorsement, I did find that some of the entries were excessive and reduced the amount accordingly. That view has not changed, and even though the plaintiff was more successful, there are still some entries in the Costs Outline which appear disproportionate including (again) 14 hours spent “communicating with client and inter-office discussions”, and time spent at the hearing itself.
[9] Having 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 proceeding in the all-inclusive amount of $42,000.00.
Diamond J.
Released: June 11, 2018
COURT FILE NO.: CV-17-568291 DATE: 20180611
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
ANDRE SINGER Plaintiff
– and –
NORDSTRONG EQUIPMENT LIMITED Defendant
COSTS ENDORSEMENT
Diamond J.
Released: June 11, 2018