Court File and Parties
COURT FILE NO.: 13-58982 DATE: 2018/09/20 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Laurie Johnson Wisotzki, personally, Marcus Wisotzki, Andrew Penley, Shara Stirrett, Jodi Fawcett, Kijana Kenneth Ben Ladengo, an infant by his Litigation Guardian, Laurie Johnson Wisotzki, Julius Ronald Okalo Ladengo, an infant by his Litigation Guardian, Laurie Johnson Wisotzki, London-James Nelson Stirrett, an infant by his Litigation Guardian, Laurie Johnson Wisotzki, Quintin Ronald Thomas Fawcett, an infant by his Litigation Guardian, Laurie Johnson Wisotzki, and Stella Maressa Mae Fawcett, an infant by her Litigation Guardian, Laurie Johnson Wisotzki, Plaintiffs
AND
PCL Constructors Inc. and PCL Constructors Canada Inc., Defendants
BEFORE: Madam Justice R. Ryan Bell
COUNSEL: James Cameron and Morgan Rowe, for the Plaintiffs Dan Palayew, for the Defendants
HEARD: In writing
Endorsement on costs
[1] On August 3, 2018, I dismissed the plaintiffs’ motion to amend the statement of claim and granted the defendants’ motion to have numerous paragraphs struck out from the statement of claim and the reply, all without leave to amend. My decision was based on the following determinations: (i) the plaintiffs’ proposed amendments to the statement of claim are statute-barred as a result of the December 20, 2016 decision of the Workplace Safety and Insurance Appeals Tribunal (“WSIAT”); (ii) the plaintiffs failed to plead the necessary facts to establish the elements of the tort of intentional infliction of mental suffering; (iii) the allegations relating to the defendants’ failure to address a “poisoned work environment” are barred by the WSIAT decision; and (iv) the alleged refusal to pay Ms. Johnson Wisotzki at the same rate as her male co-workers performing the same work cannot be maintained as a standalone claim.
[2] The defendants were successful on both motions. They seek their costs of the motions on a partial indemnity basis in the amount of $16,641.06, inclusive of tax and disbursements.
[3] The plaintiffs acknowledge that the defendants are entitled to their costs but submit that the amount requested is unreasonable and disproportionate, and fails to take into account the behaviour of the defendants which, they submit, unnecessarily lengthened and complicated the motions. The plaintiffs request that the defendants’ costs be fixed in the amount of $5,000.00, inclusive of tax and disbursements.
Analysis
[4] As the Court of Appeal stated in Boucher v. Public Accountants Council for the Province of Ontario, [2004] O.J. No. 2634, in fixing costs, the objective is to fix an amount that is fair and reasonable, having regard to the range of factors in Rule 57.01 of the Rules of Civil Procedure, for the unsuccessful party to pay, rather than an amount fixed by the successful party’s actual costs.
[5] The claims involved in the action are significant. On the proposed amendments, the damages sought by the plaintiffs against the defendants total $700,000.00. Most of the plaintiffs’ claims have been disposed of as a result of the motions.
[6] These motions were neither “very complex” (as the defendants contend), nor were they simple (as the plaintiffs maintain). The parties were required to address the interplay between the WSIAT decision and the plaintiffs’ claims in the action, the adequacy of the pleading of the tort of intentional infliction of mental suffering, and provisions of the Human Rights Code, R.S.O. 1990, c. H.19.
[7] I do not agree with the defendants’ argument that the plaintiffs’ decision to litigate on a number of issues which had been finally disposed of as a result of the WSIAT decisions added to the duration of the motions. The plaintiffs’ decision to proceed has no doubt added to the duration of the action; however, I do not find any conduct on the part of the plaintiffs that tended to lengthen the duration of the motions.
[8] The plaintiffs submit that the defendants’ conduct lengthened and complicated the motions. Their position is that they were required to bring forward their motion in the form they did because the defendants failed to engage in discussions which might have resolved issues or narrowed the scope of their motion. I note that the plaintiffs did not make any offer to resolve the motions. I do not find that the defendants acted unreasonably in relation to the motion or their cross-motion.
[9] The plaintiffs also submit that they were “required” to bring a motion to set timelines for the remaining pre-trial procedures and that they were successful in this regard. The plaintiffs maintain that this factor warrants a significant reduction in the amount of costs payable to the defendants. In rejecting this position, I make two observations. First, in inviting counsel to confer and reach agreement on a proposed timetable to be provided to me for consideration, I made no finding in relation to the defendants’ conduct. Second, the defendants did not oppose the plaintiffs’ request that a timetable be set.
[10] The costs outline on behalf of the defendants discloses that their counsel (including law clerks) spent approximately 80 hours in relation to the motions, including the preparation of the costs outline. While I find that the lawyers’ partial indemnity rates are within the range for lawyers of their experience, in my view, the total amount of time claimed by the defendants is excessive. The party seeking costs has an obligation to provide sufficient information. As there was no breakdown provided of the specific tasks performed by the lawyers, I am left to infer that there was considerable overlap in the work done by senior and junior counsel. I have also considered that plaintiffs’ counsel spent approximately 46 hours in relation to the motions.
[11] The disbursements incurred appear reasonable.
Disposition
[12] Having regard to the factors in Rule 57.01 and the principles in Boucher, I have determined that it is fair and reasonable to fix the costs payable by the plaintiffs to the defendants in the amount of $12,000.00, inclusive of tax and disbursements. Costs to be paid within 30 days.