Court File and Parties

Court File No.: 27550/17 Date: 2018-07-24 Ontario Superior Court of Justice

Between: KEN FRASER Plaintiff – and – UNITED STEEL WORKERS UNION LOCAL 2004 Defendant

Counsel: Donald Orazietti Q.C., Counsel for the Plaintiff Charles Sinclair, Counsel for the Defendant

Heard: Written Submissions

Gareau J.

Reasons on Costs

[1] On June 12, 2018, I released a written decision in which I dismissed the plaintiff’s claim under Rule 21.01(3)(a) on the basis that this court has no jurisdiction over the subject matter of the action.

[2] Subsequent to the release of my reasons, I received and reviewed written submissions from counsel on the issue of costs.

[3] In the action the plaintiff sought orders compelling the defendant to take certain actions, including reinstating him to his former union position and as a member in good standing of the union, and pecuniary damages in the amount of $35,000.

[4] In response to the plaintiff’s claims, the defendant brought a motion dated September 20, 2017 to dismiss the plaintiff’s claims which was heard by this court on May 17, 2018.

[5] As set out in my reasons on the motion, the action commenced by the plaintiff was dismissed in its entirety on the basis that this court had no jurisdiction to adjudicate on the subject matter of the claim which should have been pursued with the Canada Industrial Relations Board under the Canada Labour Code, and ultimately to the Federal Court on judicial review if that remedy was appropriate after proceedings under the Canada Labour Code had been completed.

[6] The defendant was completely successful in its motion to dismiss the claim of the plaintiff in the Superior Court of Justice.

[7] As set out in section 131(1) of the Courts of Justice Act, R.S.O. 1990, c. 43, costs are in the discretion of the court subject to any provision in the Rules of Civil Procedure that may assist the court in the exercise of its discretion.

[8] In the exercise of its discretion under section 131 of the Courts of Justice Act, to award costs the court may consider the result in the proceeding, any offer to settle made in writing, and the factors set out in section 57.01(1) of the Rules of Civil Procedure.

[9] In their written submissions, counsel did not refer to or provide the court with any written offers to settle. I assume from this that the parties were entrenched in their positions with no middle ground, in that, the plaintiff wanted the action to proceed and the defendant wanted the action dismissed.

[10] Given that the defendant was required to bring the motion and that it was completely successful, the defendant should receive an order for costs.

[11] The defendant submitted a bill of costs. The defendant seeks partial indemnity costs of $11,553.01, all inclusive. I agree that the appropriate scale of costs to be ordered in this case is partial indemnity costs. There is nothing in the conduct of the plaintiff that would attract substantial indemnity costs. As noted by McLachlin J. for a majority of the court in Young v. Young, [1993] 4 S.C.R. 3 at page 134 of that decision, solicitor and client costs “are generally awarded only where there has been reprehensible, scandalous or outrageous conduct on the part of one of the parties”. This cannot be said of the plaintiff, and therefore, partial indemnity costs are appropriate.

[12] In reviewing the bill of costs submitted by the defendant and the appropriate quantum of costs, I am guided by Rule 57.01(1) of the Rules of Civil Procedure. This matter was somewhat complex in its factual background and the legal issues raised. The issues were important to the parties. There is nothing in the conduct of either party which unduly lengthened the adjudication of this matter.

[13] In attempting to arrive at a fair and reasonable amount for costs, I have considered the factors set out in Rule 57.01(1); the complexity of the matter; the hourly rates and time spent as set out in the bill of costs of the defendant; and, the principle of proportionality. In considering these factors, I am of the view that the appropriate amount of costs to be awarded to the defendant is $7,500.00, inclusive of HST and disbursements.

[14] Therefore, there shall be an order that the plaintiff pay to the defendant costs which are fixed at $7,500.00, payable forthwith.

Gareau J. Released: July 24, 2018