Court File and Parties

COURT FILE NO.: 17-60754 MOTION HEARD: 2018-06-19 REASONS RELEASED: 2018-06-25 COSTS ENDORSEMENT RELEASED: 2019-01-08 SUPERIOR COURT OF JUSTICE – ONTARIO

BETWEEN:

AMANDA MARTIN Plaintiff

• and-

THE CITY OF MISSISSAUGA, KIMBERLEY LESLIE, ROBERT LEVESQUE and GEOFF WRIGHT Defendants

BEFORE: MASTER M.P. McGRAW

COUNSEL: T. Gorsky and N. Zervoudakis Email: tgorsky@sherrardkuzz.com -Counsel for the Defendant, The City of Mississauga

P. Marshall and C. Kirewskie Email: ckirewskie@bellnet.ca -Counsel for the Plaintiff

COSTS ENDORSEMENT RELEASED: January 8, 2019

Costs Endorsement

I. Overview

[1] As set out in my Reasons For Endorsement dated June 25, 2018 (Martin v. The City of Mississauga, 2018 ONSC 3990)(the “Reasons”), the Defendant, The City of Mississauga (the “City”) brought a motion for leave to amend its Statement of Defence (the “Original Defence”)(the City’s Motion”). The Plaintiff brought cross-motions to: i.) compel the City to produce a third party investigation report (the “Report’) together with the name and contact information of the investigator; ii.) permit the Plaintiff to discover on the cause allegation and the investigation as set out in the Original Defence; and iii.) require the City to deliver its Affidavit of Documents within 30 days (the “Plaintiff’s Motions”).

[2] The parties were unable to agree on the costs of these motions. The City inadvertently failed to serve its costs submissions on the Plaintiff before they were filed with the Court and the Plaintiff requested by letter that the City be denied the opportunity to seek costs. Pursuant to my Endorsement dated October 23, 2018, I held that the Plaintiff could raise any issues with respect to the failure of the City to serve its costs submissions in the Plaintiff’s submissions and I ordered a timetable for the delivery of responding and reply submissions.

[3] The City seeks its costs of these motions on a substantial indemnity scale of $17,058.25 (its Costs Outline provides for costs on a partial indemnity scale of $11,450.50). The Plaintiff submits that no costs should be awarded on the City’s Motion or alternatively, that costs be reserved to the trial Judge. The Plaintiff seeks costs of the Plaintiff’s Motion on a partial indemnity scale of $5,558.63 or alternatively, that no costs be ordered.

II. The Law and Analysis

[4] Section 131(1) of the Courts of Justice Act (Ontario) states:

“ Subject to the provisions of an Act or rules of court, the costs of and incidental to a proceeding or a step in a proceeding are in the discretion of the court, and the court may determine by whom and to what extent the costs shall be paid.”

[5] Rule 57.01(1) of the Rules of Civil Procedure provides as follows:

“In exercising its discretion under section 131 of the Courts of Justice Act to award costs, the court may consider, in addition to the result in the proceeding and any offer to settle or to contribute made in writing,

(0.a) the principle of indemnity, including, where applicable, the experience of the lawyer for the party entitled to the costs as well as the rates charged and the hours spent by that lawyer;

(0.b) the amount of costs that an unsuccessful party could reasonably expect to pay in relation to the step in the proceeding for which costs are being fixed;

(a) the amount claimed and the amount recovered in the proceeding;

(b) the apportionment of liability;

(c) the complexity of the proceeding;

(d) the importance of the issues;

(e) the conduct of any party that tended to shorten or to lengthen unnecessarily the duration of the proceeding;

(f) whether any step in the proceeding was,

(i) improper, vexatious or unnecessary, or

(ii) taken through negligence, mistake or excessive caution;

(g) a party’s denial of or refusal to admit anything that should have been admitted;

(h) whether it is appropriate to award any costs or more than one set of costs where a party,

(i) commenced separate proceedings for claims that should have been made in one proceeding, or

(ii) in defending a proceeding separated unnecessarily from another party in the same interest or defended by a different lawyer; and

(i) any other matter relevant to the question of costs.”

[6] Costs rules are designed to advance five purposes: (1) indemnify successful litigants for the costs of litigation, although not necessarily completely; (2) facilitate access to justice, including access for impecunious litigants; (3) discourage frivolous claims and defences; (4) discourage the sanctioning of inappropriate behaviour by litigants in their conduct of the proceedings; and (5) encourage settlements (394 Lakeshore Oakville Holdings Inc. v. Misek, 2010 ONSC 7238 at para. 10; Deonath v. Iqbal, 2017 ONSC 3672 at para. 20).

[7] In determining costs, the overriding principles are fairness and reasonableness (Boucher v. Public Accountants Council for the Province of Ontario, (2004), 71 O.R. (3d) 291 (C.A.); Deonath at para. 21).

[8] The general rule is that costs on a partial indemnity scale should follow the event (394 Lakeshore at para. 12). The principle that costs should follow the event should only be departed from for very good reasons such as misconduct of the party, miscarriage in procedure, or oppressive or vexatious conduct of proceedings: 1318706 Ontario Ltd. v. Niagara (Regional Municipality) (2005), 75 O.R. (3d) 405 (C.A.); 394 Lakeshore at para. 14).

[9] The situations in which costs on a substantial indemnity basis are awarded are rare and include where one party to the litigation has behaved in an abusive manner, brought proceedings wholly devoid of merit, and unnecessarily run up the costs of the litigation, having regard to Rules 57.01(e) and (f) with respect to the conduct of any party and the steps taken (Standard Life Assurance Co. v. Elliot, [2007] O.J. No. 2031 (S.C.J.) at paras. 9-10).

[10] Rule 1.04(1) also applies to the exercise of the court’s discretion on costs and provides that the Rules of Civil Procedure shall be liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits. Further, Rule 1.04(1.1) requires the court to make orders and give directions, including costs awards, that are proportionate to the importance and complexity of the issues, and to the amount involved, in the proceeding (Deonath at para. 21).

[11] The Plaintiff’s opposition to the City’s Motion was based largely on unsupported and ultimately unsuccessful arguments that the City’s proposed amendments, namely the withdrawal of its allegation that the Plaintiff was terminated with just cause, constituted a withdrawal of admissions under Rule 51.05. As set out in the Reasons, I concluded that the City was not making a “concession” or admitting that a set of facts posed by the Plaintiff was correct and that Rule 51.05 was not applicable. In response to the Plaintiff’s concerns regarding the effect of the amendments on the scope of discovery, the City agreed that it will not refuse to answer questions related to cause to the extent to which they are relevant to bad faith termination, subject to proportionality, privilege or any other proper basis for refusal.

[12] With respect to the Plaintiff’s Motions, the City agreed to review the Report and advise the Plaintiff regarding its position on production within 7 days. Therefore, I held that the Plaintiff’s motion for the Report was premature and disproportionate given that the City had not yet taken a position and may ultimately agree to produce it. However, I also concluded that even if the City ultimately takes the position that the Report is not producible due to relevance, privilege or some other grounds, the Plaintiff is not entitled to an order in advance compelling its production. I declined to compel the City to deliver the Report and the information regarding the investigator and for similar reasons, I also declined to grant an order permitting the Plaintiff to discover on the cause allegation and investigation.

[13] As the Reasons demonstrate, the City was completely successful on the City’s Motion and substantially successful on the Plaintiff’s Motions. The only measure of success obtained by the Plaintiff was the imposition of a 45-day deadline on the City to deliver its Affidavit of Documents. Therefore, I reject the Plaintiff’s submission that success on the motions was divided.

[14] The Plaintiff further submits that this Court should consider her Offer to Settle dated June 15, 2018 in which the Plaintiff offered to settle the Plaintiff’s Motions on the following terms: i.) the Plaintiff will consent to the City’s Motion; ii.) the Defendants will provide their Affidavit of Documents within 30 days including the investigator’s report, notes, emails and internal memoranda; iii.) the Defendants shall permit the Plaintiff to discover on the investigator’s report and the reasons for the Plaintiff’s for cause dismissal; v.) the Defendants shall pay the Plaintiff’s costs of $5,000 plus HST within 7 days (the “Offer”). The Plaintiff submits that she “essentially obtained the terms of her Offer in Court” such that “the City could have avoided the necessity of an appearance altogether”. As the Reasons demonstrate, this assertion is inaccurate. Even aside from her presumption that she would be entitled to costs of these motions, she was unsuccessful in seeking an order to compel the City to produce the Report and related information and to discover on the Report and the cause allegation. Therefore, I decline to consider the Offer.

[15] In my view, there is no reason to depart from the general rule that costs on a partial indemnity scale should follow the City’s success on these motions. While the Plaintiff’s opposition to the City’s Motion and the advancement of the Plaintiff’s Motions were misguided and to a degree unnecessary, I am not satisfied that these circumstances fall into the category of the rare situations that should or are intended to attract costs on a substantial indemnity scale. At the same time, I am of the view that the Plaintiff’s conduct on these motions, both in refusing to consent to the City’s proposed amendments, and in failing to take a more reasonable, proportionate approach to her requests, contributed to the length and costs of these proceedings and warrant costs sanctions.

[16] I am generally satisfied that the City’s partial indemnity amount of $11,450.50 is fair, reasonable and reflects the reasonable expectations of the parties, subject to a reduction. Specifically, I am not satisfied that these motions reasonably required the almost 50 hours of docketed time claimed by the City. This amount should be reduced to more reasonably reflect the amount of work required for motions of this nature, which were not complex. In arriving at this conclusion and a more reasonable amount, I have also taken into consideration that the Plaintiff sought $5,558.63 on a partial indemnity scale solely for the Plaintiff’s Motion, and that Plaintiff’s counsel claimed for 21.5 hours for all motions.

[17] Having considered all of the relevant factors and circumstances I conclude that it is fair, reasonable, proportionate, consistent with Rule 1.04 and reflective of the City’s success and the reasonable expectations of the parties that the Plaintiff pay costs of these motions to the City fixed in the amount of $9,000. As requested by the Plaintiff, I am satisfied that payment within 90 days is reasonable in the circumstances.

Released: January 8, 2019

Master M.P. McGraw