Court File and Parties

Court File No.: 10714/15 Date: 2020-12-16 Superior Court of Justice – Ontario

Re: Kim Lemyre, Plaintiff And: Residential Energy Saving Products Inc., c.o.b. as Beverley Hills Home Improvements, Defendant And: BHCC Administrative Services Inc., Defendant

Before: Mr Justice Ramsay

Counsel: Andrew J. Larmand for the plaintiff Mark A. Klaiman for the defendants

Endorsement

[1] The plaintiff asks for costs of her successful action for wrongful dismissal: Lemyre v. Residential Energy Saving Products Inc., 2020 ONSC 7542. The action was commenced before January 1, 2020, so the limit on costs imposed by Rule 76.12.1 does not apply: Rule 76.12.1(2).

[2] The plaintiff offered to settle for $32,000 all inclusive on February 9, 2019.

[3] The plaintiff seeks $36,970.19, made up of $5,000 partial indemnity to the date of her offer to settle, $30,000 substantial indemnity for costs incurred since then, a total of $35,000, plus HST and disbursements of $1,970.19.

[4] The defendants submit that $22,000 partial indemnity would be appropriate. They say that the plaintiff’s lawyer spent too much time on the file, that he charged for a motion on which costs were ordered and paid and that the plaintiff did not do better than her offer because after tax she will get less than $32,000.

[5] I do not agree with these submissions. The time spent on the file was reasonable. The plaintiff used junior lawyers and students in the preparatory stages and a 16-year lawyer for trial.

[6] The plaintiff is not seeking costs for her successful motion to amend the pleadings, as they have already been paid.

[7] As far as Rule 49 is concerned, the point is the damages won, not the tax consequences. After all, if the plaintiff had been given the 18 months notice to which she was entitled, the defendants would have had to pay salary equivalent to the total amount awarded. Furthermore, the plaintiff’s offer included her own legal fees. What the plaintiff said on examination about the motive behind the offer to settle is irrelevant. The letter speaks for itself. She offered to settle for $32,000, the offer was open until trial and she won $41,000. I also take into account that the defendants never counter offered a dime.

[8] Employers should have an incentive to settle valid claims. The damages are never very much compared to the cost of litigation. It is easy for an employer to use its advantage to grind down a plaintiff with technical arguments.

[9] I award costs to the plaintiff fixed at $39,550, which is $35,000 plus HST, plus disbursements, for a total of $41,520. I do not think anybody is worried about the 19 cents.

J.A. Ramsay J. Date: 2020-12-16