Court File and Parties

COURT FILE NO.: 15-54894 SR DATE: 2018/08/15 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Tina Peternel, Plaintiff – and – Custom Granite & Marble Ltd., Defendant

COUNSEL: Mark Munro, Counsel for the Plaintiff K.C. Wysynski, Counsel for the Defendant

HEARD: In Writing

COSTS DECISION

Sheard J.

Overview

[1] The plaintiff’s action was dismissed following a trial that spanned eight days. The parties were asked to make written costs submissions, should they not be able to agree on costs. No agreement was reached and this decision is based on the parties’ written costs submissions.

[2] After considering the submissions, I fix costs on a partial indemnity basis to be paid by the plaintiff to the defendant in the amount of $54,108.36. The amount awarded is inclusive of legal fees, disbursements, and HST. As both parties used 65 percent when calculating partial indemnity costs, I also used that percentage.

[3] In exercising my discretion to determine costs, I have considered the defendant’s submissions in support of its request for an enhanced award of costs. However, I accept the plaintiff’s submissions that the Court is bound by the principles set out in Davies v. Clarington (Municipality), 2009 ONCA 722, that “apart from the operation of rule 49.10, elevated costs should only be awarded on a clear finding of reprehensible conduct on the part of the party against which the cost award is being made.” (at para. 40)

[4] The defendant submits that there is conduct on the part of the plaintiff that would justify the elevated costs that are sought. That conduct included that:

(i) in opening submissions on the first day of trial the plaintiff reduced her claim from 12 months to 6 months’ notice;

(ii) in closing argument, the plaintiff submitted that the value and length of special damages should be reduced from the original claim of over three years to an amount equivalent to six months’ notice;

(iii) the plaintiff frustrated the preparation of a joint document brief, which resulted in time thrown away by the defendant;

(iv) the plaintiff failed to respond adequately or promptly to her undertakings, which caused the defendants to incur unnecessary expenses to pursue those answers, some of which related to portions of the plaintiff’s claim that she abandoned at trial;

(v) the plaintiff failed to accept the defendant’s offers to settle, both r. 49 and non-r. 49 offers, all of which would have led the plaintiff to a more favourable result than the plaintiff achieved at trial;

(vi) when her claim was reduced, it fell well within the scope of the simplified Rules of Civil Procedure and only marginally beyond the monetary jurisdiction of the Small Claims Court. By not reducing her claim until the opening of trial, the plaintiff caused the defendant to incur higher costs to prepare for and conduct a trial than it otherwise would have.

[5] While I accept the accuracy of the above events as described by the defendant, I am not satisfied that the plaintiff’s conduct can be described as “reprehensible” such as to attract an award of costs at an enhanced rate.

[6] In its written submissions, the defendant enumerated the factors set out in r. 57.01 that are applicable to this case. The defendant asserts that the time spent by its counsel was reasonable and points out that there is only a 21-hour difference between the time shown in the plaintiff’s Bill of Costs: 171.3 hours, including trial time, and the time shown in the defendant’s Bill of Costs: 192.3 hours, including trial time. The defendant submits that the 21-hour difference is explained by the absence of any trial preparation time recorded by counsel for the plaintiff, whose dockets record only 5.5 hours for “mid-trial preparation” on May 23, 2018, and by the plaintiff’s extensive use of law clerks, rather than lawyers.

[7] I accept that the time spent as set out in the defendant’s Bill of Costs is reasonable and that it was reasonable for the defendant to use lawyers, including junior lawyers and a student-at-law.

[8] The defendant also submits that the hourly rates charged by its counsel were reasonable, given the nature of the case and the experience of counsel. Lead counsel for both parties had similar years of experience and their hourly rates were similar, although not identical.

[9] The defendant submits that the costs sought are reasonable and within the range of what the plaintiff could have reasonably expected to pay if she was unsuccessful, given the amount she claimed, the length of the trial, and given the complexity of the evidence and the issues. On that latter point, the Court notes that the plaintiff advanced her claim under three distinct headings: wrongful dismissal, failure to comply with the Employment Standards Act, and breach of the Ontario Human Rights Code. These three grounds of relief required consideration of evidence and jurisprudence specific to each. Although the amount claimed was relatively modest, the legal issues raised by the pleadings were relatively complex.

[10] I accept the plaintiff’s submissions that there is no conduct of the plaintiff that would justify an “enhanced scale” of costs. However, I do place significance on the fact that the defendant made offers to settle that were not accepted by the plaintiff. Although the cost ramifications of r. 49 do not apply because the plaintiff recovered nothing at trial, when fixing costs the Court is entitled to consider those offers.

[11] I refer again to Davies (at para. 52):

As can be seen, the overriding principle is reasonableness. If the judge fails to consider the reasonableness of the costs award, then the result can be contrary to the fundamental objective of access to justice. Rather than engage in a purely mathematical exercise, the judge awarding costs should reflect on what the court views as a reasonable amount that should be paid by the unsuccessful party rather than any exact measure of the actual costs of the successful litigant. In Boucher v. Public Accountants Council (Ontario), this court emphasized the importance of fixing costs in an amount that is fair and reasonable for the unsuccessful party to pay in the particular proceeding, at para. 37, where Armstrong J.A. said “[t]he failure to refer, in assessing costs, to the overriding principle of reasonableness, can produce a result that is contrary to the fundamental objective of access to justice”.

[12] In all of the circumstances, and for the reasons set out above, I conclude that costs awarded to the defendant in the total amount of $54,108.36 is a fair and reasonable amount to be paid by the plaintiff.

Sheard J. Date: August 15, 2018