COURT FILE NO.: CV-17-540-00
DATE: 2019 07 31
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Piotr Klimczewski, Plaintiff
- and -
Nytric Ltd., Defendant
COUNSEL: Brandon O’Riordan, for the Plaintiff
Peter Tuovi, for the Defendant
COSTS ENDORSEMENT
BARNES J.
[1] Piotr Klimczewski brought a motion for summary judgment on a wrongful dismissal claim. He was successful. I concluded that he had been wrongfully dismissed and awarded him $55,161.58 in damages: Klimczewski v Nytric Ltd., 2019 ONSC 1322.
[2] Mr. Klimczewski submits he was successful on all issues; Nytric’s position on the issues was unreasonable; Nytric unreasonably lengthened and delayed the proceedings. Mr. Klimczewski seeks costs on a substantial indemnity scale of $8,698.00, or alternatively $6,022.44 on a partial indemnity scale.
[3] Nytric submits Mr. Klimczewski gave late notice of his intention to waive some of his claims. Thus, Nytric prepared unnecessarily for issues waived by Mr. Klimczewski. Nytric submits that the factual issues were issues of credibility and the only issue of law related to mitigation of damages. Nytric submits that success was mixed, and Mr. Klimczewski should be awarded costs of $980.00 plus HST on a partial indemnity scale.
[4] Unless an Act or Rules of Court provide otherwise a court has the discretion to determine to whom and by whom the costs of a proceeding shall be paid: Section 131(1) of the Courts of Justice Act, R.S.O. 1990, c. C43.[^1]
[5] The purpose of a cost award is described in Fong v Chan 1999 2052 (ON CA), 46 O.R. (3d) 330 (Ont. C.A.) as follows:
(1) in most cases to indemnify a successful litigant: Hamilton-Wentworth (Regional Municipality) v Hamilton-Wentworth Save the Valley Committee Inc. 51 O.R .(2d) 23 (Ont. H.C.J.);
(2) to facilitate access to justice for all litigants; and
(3) to discourage frivolous and vexatious claims: Standard Life Assurance Co v Elliot, 2007 18579 (ON SC), [2007] O.J. No. 2031;
(4) to provide consequences for inappropriate behavior by litigants in the conduct of their proceedings: Standard Life Assurance; and
(5) to encourage litigants to settle.
[6] General principles to consider in assessing costs awards are set out in Rule 57 of the Rules of Civil Procedure (the Rules)[^2]. Factors to consider are set out in Rule 57.01(1). Principles to consider are enumerated by the Ontario Divisional Court in Anderson v St. Jude Medical Inc., 2006 85158 (ON SCDC), [2006] O.J. No. 508, at para. 22, as follows:
(1) the factors set out in Rule 57.01(1) should be applied to the circumstances of each case;
(2) matters such as the experience, rates charged and hours spent must be assessed within the context of reasonableness in relation to the circumstances of the particular case;
(3) the quantum of the cost award should be what the court considers as fair and reasonable in all the circumstances rather than the exact measure of the actual costs of the successful party;
(4) the reasonable expectation of the unsuccessful party is a relevant consideration in determining whether the quantum of the award is fair and reasonable in all the circumstances;
(5) the court should seek to be consistent with comparable awards in other cases; and
(6) the principle of indemnity should be balanced with the fundamental objective of access to justice.
[7] Issues in dispute included whether the plaintiff was hired as a senior software engineer or as a software engineer; the level of the plaintiff’s job performance; whether the plaintiff was covered by the defendant’s benefits plan and whether the plaintiff had taken enough steps to mitigate his damages. The legal issue was novel, not in relation to the factors to consider in assessing damages but in relation to assessing the quantum of damages of a software engineer in the same circumstances as the plaintiff.
[8] For reasons articulated in disposing the summary judgment motion, it was appropriate to resolve this matter by way of summary judgement and to use the enhanced powers provided by the rules to hear viva voce evidence on the summary judgment motion. Neither party acted unreasonably, and the motion proceeded in the normal course. Neither party acted to delay the motion. The issues raised were driven by the nature of the factual matrix of the case. Resolution of the matter by way of summary judgement resulted in cost savings to both parties. Thus, I see no reason to award any costs on a substantial indemnity scale.
[9] The matters were of importance to each party and the issues were of moderate complexity. The items billed, fees charged are reasonable considering the issues in this case and plaintiff’s counsel’s year of call. Counsel’s use of a law clerk and the rates charged are also reasonable. It should be within the reasonable expectation of the defendant that lack of success at the motion could attract a cost award that is fair and reasonable in all the circumstances. Partial indemnity costs in the amount of $6,022.44 is fair and reasonable in all the circumstances. The defendant shall pay these costs forthwith. Post judgment interest is set at 3% per annum.
BARNES J.
Date: July 31, 2019
COURT FILE NO.: CV-17-540-00
DATE: 2019 07 31
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Piotr Klimczewski, Plaintiff
- and -
Nytric Ltd., Defendant
COUNSEL: Brandon O’Riordan, for the Plaintiff
Peter Tuovi, for the Defendant
COSTS ENDORSEMENT
Barnes J.
Date: July 31, 2019
[^1]: Schedule A
[^2]: Schedule B