Court File and Parties
COURT FILE NO.: C-4940-16
DATE: 20190904
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
ROGER SPIELMANN Plaintiff
– and –
UNIVERSITY OF SUDBURY, MANULIFE FINANCIAL, MARY ANN CORBIERE and PIERRE ZUNDEL Defendants
Counsel:
Craig Ticalo, for the Plaintiff
Michel Carré, for the Defendants University of Sudbury and Pierre Zundel
Luke C. Mullin, for the Defendant Manulife Financial
Richard Blair, for the Defendant Mary Ann Corbiere
HEARD: In writing
Decision on Costs
WILCOX J.
[1] The defendants all brought motions for summary judgment seeking dismissal of the plaintiff’s claims against them. Their motions were granted.
[2] The decision in this matter invited costs submissions from the defendants within 30 days, with responding submissions from the plaintiff within 15 days after that.
[3] Submissions have been made by the defendants, the University of Sudbury and Pierre Zundel. The defendant Mary Ann Corbiere did not seek costs. Nothing has been received from the defendant, Manulife Financial nor from the plaintiff.
[4] The University of Sudbury and Pierre Zundel sought costs on a substantial indemnity basis. They submitted that they wrote to the plaintiff on November 7, 2014, well before the Statement of Claim was issued on June 3, 2016 (presumably in the context of some pre-litigation negotiations) drawing attention to the Webber case in support of their advice to the plaintiff that the plaintiff did not have the right to sue in relation to his employment the university. This was ultimately one of the grounds on which these defendants’ motion for summary judgment was granted and the plaintiff’s action was dismissed.
[5] Furthermore, the defendants, the University of Sudbury and Pierre Zundel served an Offer to Settle dated November 17, 2017, on the plaintiff, offering to dismiss the action without costs, which offer was not accepted.
[6] Their Bill of Costs indicates substantial indemnity costs calculated at 80% of the total indemnity costs to be $38,969.21, inclusive of fees, disbursements and taxes. Similarly, partial indemnity costs at 66% total $32,255.00.
[7] S. 131 of the Courts of Justice Act leaves the costs of a proceeding to the discretion of the court. Rule 1.04(1.1) of the Rules of Civil Procedure 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 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.
[8] “Modern costs 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]
[9] “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]
[10] Having taken into account the relevant factors enumerated under Rule 57 as well as the application of the principle of proportionality (Rule 1.04(1.1)) and the principles set forth in the case law, I conclude that an award of substantial indemnity costs in the amount of $38,969.21 inclusive of fees, disbursements and HST would be a reasonable one in the circumstances, and I order the Plaintiff to pay that amount to the defendants, the University of Sudbury and Pierre Zundel, within 30 days.
The Honourable Justice J. A. S. Wilcox
Released: September 4, 2019
COURT FILE NO.: C-4940-16
DATE: 20190904
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
ROGER SPIELMANN Plaintiff
– and –
UNIVERSITY OF SUDBURY, MANULIFE FINANCIAL, MARY ANN CORBIERE and PIERRE ZUNDEL Defendants
DECISION ON COSTS
WILCOX J.
Released: September 4, 2019
[^1]: Fong v. Chan, 1999 2052 (ON CA), 46 O.R. (3rd) 330 [^2]: Boucher v. Public Accountant’s Counsel (Ontario), 2004 14579 (ON CA), [2004] O.J. No. 2634