Superior Court of Justice
COURT FILE NO.: CV-11-018
DATE: 20190320
ONTARIO
SUPERIOR COURT OF JUSTICE
Parties
BETWEEN:
HELGA LOUISE BRILLON
Plaintiff/Responding Party
– and –
GENERAL DYNAMICS LAND SYSTEMS - CANADA
Defendant/Moving Party
Counsel
D. Morin, for the Plaintiff/Responding Party
G. Avraam, for the Defendant/Moving Party
HEARD: In Writing
DECISION ON COSTS
WILCOX J.
[1] The plaintiff sued for relief arising from her employment with the defendant. In its motion regarding jurisdiction and summary judgment, the defence argued that the matter was properly within the jurisdiction of a labor arbitrator and sought to have the action stayed or dismissed. Furthermore, if the court found that it had jurisdiction over the matter, the defence sought summary judgment dismissing the claim. I allowed the motion in part, ordering a stay of the action so that the matter could be referred to a labor arbitrator to determine the issue of jurisdiction. Consequently, the motion for summary judgment was dismissed. The parties were invited to deliver costs submissions if they were unable to agree on costs. Costs submissions have been received from both sides.
[2] The plaintiff’s submissions treat the matter as two motions, one regarding jurisdiction and the other regarding summary judgment. She seeks full indemnity, or more.
[3] The plaintiff’s full indemnity bill of costs for the motion with respect to jurisdiction was $179,748.00 for fees and HST, plus $33,648.13 for disbursements, totalling $213,396.13.
[4] The plaintiff’s full indemnity bill of costs for the motion for summary judgment was $134,968.50 for fees plus HST, plus $4,863.95 in disbursements, totaling $139,832.45.
[5] The defendant’s responding submissions also dealt to some extent with the two aspects as separate motions. It notes that it succeeded in having the action stayed, and contends that costs of the motion regarding jurisdiction should be dealt with, but not the motion for summary judgment on which there was not a final determination. However, the defendant acknowledged that some costs are payable to the plaintiff when it submitted that, “it would be fair and reasonable to reduce the costs awarded to the plaintiff according to her bill of costs on the motions by 50% to reflect the defendant’s partial success on the jurisdictional motion.”
[6] Section 131 of the Court of Justice Act leaves the costs of a proceeding to the discretion of the court. Rule 1.04(1) requires the court to make orders and give directions that are proportionate to the importance and complexity of the issues and to the amount involved in the proceeding. Rule 57 of the Rules of Civil Procedure sets out the factors to be considered by the court, in addition to the result in the proceeding and any offer to settle, in exercising this discretion.
[7] “Modern cost rules are designed to foster three fundamental purposes:
To indemnify successful litigants for the cost of litigation;
To encourage settlements; and
To discourage and sanction inappropriate behaviour by litigants.”[^1]
[8] “The costs award should reflect more what the court views as a fair and reasonable amount that should be paid by the unsuccessful parties rather than any exact measure of the actual costs to the successful litigant.”[^2]
[9] In a proper case, costs may be awarded against a successful party. Reasonableness and access to justice have been identified as an overriding principle and a fundamental objective, respectively.
[10] The defendant was successful in having the action stayed so that the matter could be referred to a labour arbitrator under s. 48(1) of the Labour Relations Act to determine whether the matter is arbitrable. There is a presumption that a successful party is entitled to its costs on a partial indemnity basis. However, Rule 21 also must be considered in the present case. Rule 21.01(3)(a) provides that a defendant may move as the defendant did here to have an action stayed or dismissed on the ground that the court has no jurisdiction over the subject matter of the action. Rule 21.02 requires such a motion to be made promptly and provides that the failure to do so may be taken into account in the awarding of costs. As noted in the decision on the motion there was a substantial delay after the exchange of pleadings in 2011 to the bringing of the motion in 2016 and its hearing in 2018. Defence counsel acknowledged that this delay would be a factor in awarding costs.
[11] Taking into account the factors which bear on the awarding of costs, in particular the delay of the defendant in bringing the motion in which it was ultimately partially successful, I find that the defendant should be deprived of the costs that it might otherwise have been awarded.
[12] I turn next to the motion for summary judgment. When the action was stayed so that the matter could be referred to a labour arbitrator to determine the issue of jurisdiction, it was no longer necessary to deal with the alternative request for summary judgment dismissing the action and that motion was dismissed.
[13] The plaintiff submits, quite reasonably given what was at stake, that, faced with the motion for summary judgment, it had to prepare thoroughly, attend court and argue against the motion, at great expense. The plaintiff is an individual with limited resources with which to bear that expense. The plaintiff’s counsel argued cogently with respect to the factors to be taken into account that the plaintiff should be awarded her costs.
[14] The defence submitted that the motion for summary judgment was a reasonable effort to shorten and simply the action, that the court did not make a final determination of the action, and that, therefore, the court should not award any costs for the entire action. The motion for summary judgment was not dismissed on its merits, but because the jurisdiction issue was to be referred to an arbitrator. Also, as the matter is not yet complete, one cannot say that the effort put into preparation for the motion for summary judgment was thrown away. Ultimately, judgment on the merits could against the plaintiff. Therefore, a decision on the costs of the action, including the costs of the aborted motion for summary judgment, should wait until the matter is finally determined on its merits.
[15] The plaintiff anticipated this argument, submitting that the defendant should face repercussions for bringing the motion very late in the proceedings and that, depending on the decision of the arbitrator, the plaintiff’s costs could be thrown away and never recovered.
[16] The defendant’s motions were brought very late in the proceedings, unreasonably late. The jurisdiction motion could and, I think, should have been brought soon after the close of pleadings and should not have had the motion for summary judgment added to it. If the matter was then referred to a labour arbitrator, both the delay and the expense of dealing with the action, including the motion for summary judgment, could have been attenuated. I was given no indication of what would be required of the parties to prepare for and participate in the arbitration process, so I cannot say and will not speculate on how much of the work and expense that has gone into the action would have been required anyway. Nor was I advised of how the costs of the arbitration process would be dealt with. Consequently, I take the approach that, but for the delay in bringing the jurisdiction motion, much of that work and expense would not have been required. The costs of the arbitration process will fall where they may in due course. In the meantime, there is an access to justice consideration. This is a case involving difficult issues and much complexity. It requires the plaintiff to have experienced, dedicated counsel to frame the issues and marshal the facts. The expense of that is substantial and beyond the apparent means of the plaintiff.
[17] Taking all of the above into account, I make an award of costs in favour of the plaintiff, payable within 30 days. There shall be partial indemnity costs on the jurisdiction motion of $113,000.00 including HST plus disbursements of $33,648.13. There shall be substantial indemnity costs on the motion for summary judgment of $118,650.00 including HST plus disbursements of $4,863.95. These total $270,162.08.
The Honourable Justice James A. S. Wilcox
Released: March 20, 2019
COURT FILE NO.: CV-11-018
DATE: 20190320
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HELGA LOUISE BRILLON
Plaintiff/Responding Party
– and –
GENERAL DYNAMICS LAND SYSTEMS - CANADA
Defendant/Moving Party
DECISION ON COSTS
WILCOX J.
Released: March 20, 2019
[^1]: Fong v. Chan, 1999 2052 (ON CA), 46 O.R. (3d) 330, para. 22 and Serra v. Serra, 2009 ONCA 395, para. 8 [^2]: Boucher v. Public Accountants Counsel (Ontario), 2004 14579 (ON CA), [2004] O.J. No. 2634