Court File and Parties
COURT FILE NO.: CV-15-532352 DATE: 20180823 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
ALTHEA BURTON Plaintiff
– and –
ARONOVITCH MACAULAY ROLLO LLP Defendant
Counsel: Althea Burton, on her own behalf Alex Van Kralingen and Mark Repath, for the Defendant
HEARD: March 26 & 27, 2018
COSTS ENDORSEMENT
P.J. Monahan J.
[1] On May 15, 2018, I dismissed the Plaintiff’s action for damages claimed as a result of the termination of her employment by the Defendant. I concluded that the termination clause in the Plaintiff’s contract of employment was consistent with the requirements of the Employment Standards Act, 2000,[^1] and was sufficient to oust the Plaintiff’s entitlements to notice at common law. The Defendant provided the Plaintiff with her entitlements in accordance with the terms of her contract of employment when it terminated her employment on April 29, 2015. I therefore concluded that the Plaintiff’s claim for additional compensation arising from her termination of employment could not succeed.
[2] I also held that the Defendant was entitled to its costs in defending the action and invited the parties to attempt to settle between themselves the quantum of costs payable. No such agreement was reached on the costs issue and the Defendant has made costs submissions in which it argues that it should receive its costs on a substantial indemnity basis. The Plaintiff has not provided any responding costs submissions.
[3] The Defendant makes a number of arguments in support of its claim for substantial indemnity costs. These include the following:
a. the Plaintiff’s interpretation of the termination clause in her contract of employment was without merit and the Defendant’s position aligns completely with the Court’s reasons;
b. a significant amount of time was spent in connection with a summary judgment motion brought by the plaintiff in October 2016. When the matter came before Civil Practice Court in January 2017, Archibald J. found that a summary judgment motion was inappropriate and ordered a simplified rules trial. The Defendant argues that the summary judgment motion was ill-advised and that the costs it incurred should be recovered on a substantial indemnity basis.
c. the trial in this matter was originally scheduled for June 26-27, 2017. However the Plaintiff failed to file the Trial Record in a timely basis and the trial had to be adjourned, resulting in increased costs.
d. the Defendant argues that the Plaintiff made unwarranted personal attacks on the professionalism of counsel for the Defendant.
e. in March 2017, the Defendant served an offer to settle which offered the Plaintiff a without-costs walk away of the action for a certain period of time, and then an amount less than the Defendant’s partial indemnity costs beyond that date. This offer to settle was open for acceptance until shortly after trial began but was not accepted by the Plaintiff.
[4] I would make the following observations regarding the Defendant’s cost submissions. First, in the normal course, an award of costs on a partial indemnity basis is the appropriate award to impose an unsuccessful party.[^2] An enhanced award of costs is generally only appropriate in cases where there has been “reprehensible conduct” on the part of the party against whom the costs order is made.[^3]
[5] Here, although the Defendant was ultimately successful in having the Plaintiff’s action dismissed, her action raised a plausible argument regarding the proper interpretation of the termination clause in her contract of employment. As I noted in my reasons, the interpretation of similar termination clauses has been the subject of a number of recent decisions in this Court as well as the Court of Appeal. In short, I see nothing unreasonable in the position taken by the Plaintiff in this matter and would not award substantial indemnity costs merely because the Defendant was successful in defending the action.
[6] Second, I recognize that the summary judgment motion as well as the necessity to reschedule the trial resulted in increased costs to the Defendant, and that the Defendant is entitled to be compensated for those costs. The question, however, is whether those costs should be assessed on a partial or substantial indemnity basis. Given that the Plaintiff was self-represented, these additional procedural steps did not constitute actions that would give rise to a right to claim for costs on an enhanced basis.
[7] Third, I have reviewed the correspondence in which the Plaintiff raises various concerns regarding the conduct of Defendant’s counsel. I accept the fact that certain of the statements made by the Plaintiff in her materials regarding the conduct of counsel for the Defendant may have been unjustified. In the context of this litigation, however, they were not so egregious as to constitute a basis for costs on a substantial indemnity basis.
[8] Finally, the Defendant did make an offer to settle the action on a without costs basis and this offer was not accepted by the Plaintiff. However, since the Plaintiff did not obtain any judgment, Rule 49 is not engaged by this offer.[^4]
[9] I would offer this final observation. The Defendant terminated the Plaintiff’s employment on the basis that she had engaged in discussions regarding her salary with other employees at the firm. However the Defendant’s office manager authorized these very discussions. Since the Defendant was not seeking to establish “cause” for the dismissal, it was not necessary for it to explain or justify this apparent inconsistency in its position. Nevertheless I take this inconsistency to be a relevant consideration in determining the scale of costs to which it is entitled.
[10] In sum, I see no basis for departing from the general rule that the Defendant should be awarded its costs on a partial indemnity basis.
[11] The costs outline submitted by the Defendant indicates that its partial indemnity fees amounted to $44,690 with an additional $3813.75 for disbursements. I find the time spent and the rates charged to be reasonable. Taking into account HST of $5809.70, I would fix the costs payable by the Plaintiff to the Defendant at $54,313.45, to be paid within 30 days of today’s date.
P. J. Monahan J.
Released: August 23, 2018
COURT FILE NO.: CV-15-532352
DATE: 20180823
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
ALTHEA BURTON Plaintiff
– and –
ARONOVITCH MACAULAY ROLLO LLP Defendant
COSTS ENDORSEMENT
P. J. Monahan J.
Released: August 23, 2018
[^1]: S.O. 2000, c. 41 (the "Act"). [^2]: Lawyers' Professional Indemnity Co. v. Geto Investments Ltd., [2002] O.J. 921 (S.C.J.) [^3]: Davies v. Clarington (Municipality), [2009] O.J. No. 4236, 2009 ONCA 722 (C. A.) at paragraph 38. [^4]: See S & A Strasser Ltd. v. Richmond Hill (Town), 1990 CanLII 6856 (ON CA), [1990] 1 O.R. (3rd) 243 (C. A.).