Court File and Parties

Court File No.: 16-67963 Date: 2018/10/26 Ontario Superior Court of Justice

Between: SANDRA VISAGGIO, Plaintiff – and – JOYNT-DENT INC., DR. STEPHEN JOYNT a.k.a. STEPHEN MICHAEL JOYNT, Defendants

Counsel: A.C. Lucifero, counsel for the plaintiff D. Palayew and E. Durant, counsel for the defendants

Heard: In Writing (at Ottawa)

Costs Decision

KANE, J.

Position of Parties

[1] The plaintiff was successful on her motion for summary judgment in her wrongful dismissal action and was awarded judgment in the form of damages equivalent to 24 months of pay and benefits in lieu of notice totaling $118,166 which, net of statutory termination and benefits received, totaled $110,294.

[2] The plaintiff seeks costs against the defendant corporation in the amount of $27,246 consisting of:

a) $7,801 for counsel fees on a partial indemnity scale from commencement of the proceeding until October 17, 2016; b) $14,872 for counsel fees on a substantial indemnity scale on and after October 18, 2016 on the basis of an offer of settlement; and c) $1,438 for disbursements.

[3] The plaintiff commenced this proceeding on March 22, 2016. She served a R. 49 offer on October 17, 2016 in which she offered to settle on the basis of receipt of 18 months of salary and benefits, which is less than what she received on her successful motion for summary judgment argued on December 23, 2016.

[4] The defendant submits that subject to their appeal of the summary judgment decision herein:

a) the plaintiff is entitled to her costs on a partial indemnity scale to October 14, 2016 and on a substantial indemnity scale from October 14 to December 23, 2016; b) the plaintiff is entitled to the $1,438 of disbursements claimed, inclusive of HST; c) the legal fees claimed exceed what the defendants could reasonably expect to be responsible for if unsuccessful; d) the legal fees claimed exceed the defendants’ own legal fees on a full indemnity scale which total $26,598 including disbursements; and e) the legal fees charged by plaintiff’s counsel are excessive as: (i) the parties attended mediation however there was no cross- examination on affidavits on this motion; (ii) 9.2 hours were docketed to conduct research and draft the brief four-page statement of claim; (iii) 2.2 hours were docketed for drafting a Reply to the Statement of Defence which was not served upon the defendant; (iv) 3.7 hours were docketed for drafting a three-page Notice of Motion; (v) 5.7 hours were docketed for drafting the plaintiff’s 5.5 page summary judgment affidavit; (vi) 14.6 hours were docketed for drafting the plaintiff’s factum on this summary judgment motion; and (vii) 5.1 hours were docketed for the unnecessary attendance of this counsel at argument of the summary judgment motion; and (viii) the failure by the plaintiff’s senior counsel to delegate some of the drafting charged to more junior counsel.

[5] The defendants accordingly submit the fair and reasonable total cost award to the plaintiff in this case, inclusive of disbursements and HST, would be $18,388 consisting of:

a) $5,000 costs on a partial indemnity scale to October 17, 2016; b) $10,000 costs on a substantial indemnity scale after October 17, 2016; c) $1,438 of disbursements; and d) $1,950 HST for legal costs awarded.

[6] The parties agree that the cost award herein should be against the corporate defendant only and that no costs be awarded to or against the defendant, Dr. Joynt.

Analysis

[7] Given her success, the plaintiff as admitted is clearly entitled to costs.

[8] As of the factors listed in subrule 57.01(1) of the Rules of Civil Procedure, the parties agree that:

a) the issues were important to both parties and particularly to the plaintiff who had been employed for 33 years by the defendant; b) there was no conduct which tended to shorten or lengthen unnecessarily the duration of the proceeding by either party; c) there were no improper, vexatious, unnecessary, negligent, mistaken or excessive steps by either party; and d) nothing that should have been admitted was denied or refused.

[9] As to the other subrule 57.01(1) factors the court notes that:

a) the plaintiff was fully successful in recovering the amount claimed in her Statement of Claim; and b) the complexity of the proceeding was average.

[10] The dispute as to what are the fair and reasonable legal fees involves the amount of time expended by plaintiff’s counsel, their hourly rate given their year of call and the fact the vast majority of services docketed were by the plaintiff’s senior counsel versus the more junior counsel involved and/or students of law.

[11] The hourly rates charged by the plaintiff’s senior and junior counsel, who respectfully then had 4 and 3 years call to the Bar, were $310 and $250 per hour.

[12] Comparatively, the defendants’ bill of costs indicates the involvement of 4 lawyers with 14 years, 7 years and 2 years call to the Bar, with hourly rates of $370, $200 and $150 respectively, as well as a one-hour involvement of a student at law.

[13] The higher comparative hourly rates charged by the plaintiff’s more junior legal counsel forms the basis of the quantum of costs claimed. Those hourly rates although not challenged by the defendants are a bit high given the respective years of call. There should be a reduction for that reason.

[14] The total hours docketed by the plaintiff’s senior and junior counsel are 79.2 hours and 19.9 hours respectively, thus indicating a limited delegation of work to more junior counsel. There are no docketed hours for students or paralegals. There should be a reduction for not delegating further.

[15] Given the limited involvement of plaintiff’s junior counsel and the absence of why it was required, the 5.10 hours she docketed for attendance upon argument of the summary judgment motion is not recoverable in costs.

[16] The length and complexity of the Statement of Claim and the plaintiff’s Notice of Motion and her first affidavit on her motion for summary judgment are brief. They were sufficient however, together with her second affidavit on that motion, to obtain summary judgment. The claim that the time expended to research and draft those documents was excessive accordingly must be considered cautiously.

[17] The court determined that the defendants together with Dr. Chung drafted and prepared an elaborate documentation for their protection in transitioning the practice to the purchaser thereof. The implications thereof on the defendant’s allegation that the plaintiff had failed to mitigate her damages required careful consideration and drafting by the plaintiff of her factum on the motion for summary judgment. The 14.6 hours docketed to do so in itself is not excessive.

[18] Plaintiff’s counsel also claims 3.3 hours of work done after argument of the summary judgment motion including review and discussion of the reasons for judgment and costs submissions with the plaintiff. Consideration and discussion with the plaintiff as to a claim for costs are an inappropriate cost claim. A number of the items listed therein are subsequent to argument of the summary judgment motion. The recoverability of costs against the personal defendant is a matter raised by the court during argument of the motion which should have been previously considered and not brought to argument of the motion.

[19] These 3.3 hours are not appropriately recoverable.

[20] The combined 10.7 hours to draft this motion for summary judgment including the two supporting affidavits, was not excessive given what was at stake and the cost in bringing a summary judgment motion.

[21] I agree with the defendants that in exercising its discretion as to an award of costs under section 131 of the Courts of Justice Act and the Rules of Civil Procedure, the court must determine an amount which is fair and reasonable for the unsuccessful party, having regard to the amount at stake as well as the expectations of the parties: Bucher v. Public Accountants Council for the Province of Ontario (2004), 71 O. R. (3d) 291.

Conclusion

[22] Based upon the above factors, the fair and reasonable legal costs to be awarded to the plaintiff against the corporate defendant are as follows:

a) $6,500 for legal fees to October 17, 2016 on a partial indemnity scale; b) $12,000 for legal fees from October 17, 2016 until completion of argument of the summary judgment motion on a substantial indemnity scale; and c) disbursements including tax in the amount of $1,438;

for a total of $19,938.

Mr. Justice Paul Kane Released: October 26, 2018