Court File and Parties

COURT FILE NO.: CV-19-00629069 DATE: 2020-12-14 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

ALLAN ETHERINGTON Plaintiff (Respondent)

– and –

NATIONAL HOCKEY LEAGUE PLAYERS’ ASSOCIATION (NHLPA), AXIS INSURANCE, MATHIEU SCHNEIDER, RICHARD SMIT, ROMAN STOYKEWYCH, MICHELLE ALLEN, STEPHEN SAX, TRACEY CORDEIRO, SANDRA MONTEIRO, and STEPHEN FRANK Defendants (Applicants)

Counsel: Andrew Monkhouse, for the Plaintiff (Respondent) Peter M. Jacobsen, Tae Mee Park and Andrew W. MacDonald, for the Defendants (Applicants)

HEARD: IN WRITING

Endorsement

papageorgiou J.

[1] By reasons dated October 13, 2020 I struck out the entirety of the plaintiff’s Statement of Claim with leave to amend and dismissed the action as against several defendants pursuant to Rule 21.01(b) and Rule 25.11 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. I also dismissed the defendant’s cross motion to expunge the plaintiff’s Responding Motion Record from the court file.

Nature of the Case

[2] This case arises out of the plaintiff’s employment with National Hockey League Players’ Association (“NHLPA”) as a former Technical Support Analyst from September 10, 2008 until February 13, 2019. The plaintiff’s main claim is for wrongful dismissal, but his original Statement of Claim was brought against the NHLPA, 8 officers and directors and Axis (the NHLPA insurer) and alleged additional causes of action. I struck out the entire Statement of Claim and the plaintiff was given leave to amend to plead 5 causes of action against 2 defendants (wrongful dismissal, negligence, harassment, discrimination and intentional infliction of mental suffering). I concluded that the pleading was “unduly complex, repetitive, unclear and filled with irrelevant, scandalous and immaterial facts and evidence.”

[3] I note that the plaintiff has delivered a Notice of Change of Solicitors and is represented by new counsel.

[4] In its factum filed in respect of the motion to strike, at paragraph 86, as well as during oral argument, the NHLPA argued that even the wrongful dismissal claim asserted by the plaintiff should be struck out without leave to amend – although on a plain reading of the Statement of Claim as it existed, there was no basis for concluding that it is plain and obvious that such action is bound to fail.

The defendant’s costs request

[5] The defendant has requested substantial indemnity costs in the amount of $51,710.82, or in the alternative $34,100.37 on a partial indemnity basis (inclusive of HST and disbursements). The defendant asserts that the motion required considerable time because of its length, the way it was organized, and the many causes of action asserted. The defendant says that it advised the plaintiff at an early stage that the Notice of Action, and subsequently the Statement of Claim, were improper. Further, it claims that the plaintiff improperly filed a 430-page Motion Record which contained documents which it says were not admissible in response to its motion to strike, and that the plaintiff thereby abused the process of the court by filing this Motion Record. Apparently, the news media had interest in this case and wrote an article using some of the documents in the plaintiff’s Motion Record. As noted above, the defendant brought a motion to strike out or expunge this Motion Record from the court file which I dismissed as the defendants gave me no authority for the proposition that I could do so.

The plaintiff’s submission

[6] The plaintiff says that there is no basis for a substantial indemnity costs award, the quantum is excessive, well beyond what he could reasonably have expected, that success on the motion was divided, that his case is of public interest and novel, and that he is impecunious. With respect to his impecuniosity, the plaintiff submits that he has no employment because he was terminated and that this has been aggravated by recent press about him in this matter.

[7] He did not provide any evidence of impecuniosity apart from this submission.

Analysis

[8] Pursuant to section 131(1) of the Courts of Justice Act, R.S.O. 1990, c. C.43, costs are in the discretion of the court. Rule 57 sets out the factors which courts should have regard to when awarding costs. The overall objective is “to fix an amount that is fair and reasonable for the unsuccessful party to pay in the particular proceeding, rather than an amount fixed by the actual costs incurred by the successful litigant”: Boucher v. Public Accountants for the Province of Ontario (2004), 2004 14579 (ON CA), 71 O.R. (3d) 291 (C.A.), at para. 26; Davies v. Clarington (Municipality) et al., 2009 ONCA 722, 100 O.R. (3d) 66, at para. 52; G.C. v. Ontario (Attorney General), 2014 ONSC 1191.

No basis for substantial indemnity costs

[9] First, there is no basis for awarding substantial indemnity costs which are “rare and exceptional” and only warranted where there has been a reprehensible, scandalous or outrageous conduct on the part of a party: Krieser v. Garber, 2020 ONCA 699, at para. 137; Whitfield v. Whitfield, 2016 ONCA 720, 133 O.R. (3d) 753, at para. 23; Davies, at paras. 28-29. The fact that the plaintiff filed a Responding Motion Record with documents which were already referred to and quoted throughout the Statement of Claim does not rise to that standard. Nor does the fact that the Statement of Claim was flawed.

The costs claim is excessive

[10] In my view, even the partial indemnity costs claimed by the defendant in the amount of $34,100.37 is excessive. As noted by the Court in Boucher, at para. 38, in deciding what is fair and reasonable, the expectations of the parties is a relevant factor. In this case, the plaintiff has filed its Bill of Costs in the amount of $21,798, which is 1/3 less than then the defendant’s. In my view, the plaintiff could not reasonably have expected to pay any more than that. I note that the defendants’ Bill of Costs contained entries from three senior lawyers called to the Bar in 1978, 2005 and 2008 respectively. The Bill of Costs submitted demonstrated duplication of effort recorded in respect of “Communications with Clients”, “Communications with Counsel”, “Drafting the Motion Record”, “Reviewing the Plaintiff Responding Record”, “Drafting the Factum”, “Reviewing Responding Factum”, “Drafting Reply” and ”Preparing for and Attending the Motion”, even though there was only one counsel who argued the motion.

[11] Courts have applied a reduction to the costs claimed where there appears to have been over-lawyering: see e.g. Moon v. Sher (2004), 2004 39005 (ON CA), 246 D.L.R. (4th) 440 (Ont. C.A.), at paras. 32-33; Adult Entertainment Assn. of Canada v. Ottawa, 2005 39873, at para. 8; St Mary’s Cement Inc. v. Clarington, 2011 ONSC 4631, at para. 10. While this case is of importance to the defendant and it is at liberty to staff the manner in any way it chooses, it may not claim costs in excess of what is in the reasonable expectations of the plaintiff on the basis of its idiosyncratic arrangements.

Divided success

[12] I struck out the entire Statement of Claim on a variety of bases – the fact that the plaintiff was given leave to amend to remedy some defects does not change that. The motion was complex, the defendant was the successful party and is presumptively entitled to costs. However, the defendant was unsuccessful in its motion to strike out the plaintiff’s Responding Motion Record and the plaintiff is presumptively entitled to costs in respect of that motion – although in my view there was very little time and expense associated with the defendant’s cross-motion.

Is the case a matter of public interest or novel?

[13] Courts have exercised their discretion to relieve unsuccessful parties of the obligation to pay costs when their case is a matter of public interest. Typically, a matter of public interest involves a matter which is significant not only to the parties, but to the broader community as a whole: Guelph v. Wellington-Dufferin-Guelph, 2011 ONSC 7523, at paras 25-35. Although this litigation was reported by the media and referred to on Twitter and Blogs, it is essentially a private claim brought by the plaintiff against his employer for wrongful dismissal.

[14] Further, while the plaintiff argued in its factum that the case was novel, it did not say how.

Conclusion

[15] I fix the quantum of the costs at $15,000 payable to the defendants by the plaintiff on a partial indemnity basis, bearing in mind all relevant circumstances in the exercise of my discretion.

[16] However, I am ordering that these costs are only payable in the cause. The factual matters and causes of action which survived the motion to strike are serious, if proven. The plaintiff’s employment has been terminated after eleven years and even though no evidence was filed as to his impecuniosity, I am taking into account the uncontradicted fact that he has lost his job without payment of any severance. In my view, requiring him to pay a significant costs award at this time would not be consistent with the objective of access to justice. See e.g. G.C. v. Ontario, 2014 ONSC 1191; Euteneier v. Lee (2005), 2005 44375 (ON CA), 260 D.L.R. (4th) 145 (Ont. C.A.), at paras. 7-8; Belvedere v. Britain Estate, 2009 ONCA 691, at para. 8; Schwartz v. Ontario, 2013 ONSC 7755, at para. 9-10; Larabie v. Montfils (2004), 2004 11299 (ON CA), 181 O.A.C. 239 (C.A.), at para. 16-17, where courts have taken the losing party’s financial circumstances into account.

Papageorgiou J.

Released: December 14, 2020

BETWEEN:

ALLAN ETHERINGTON Plaintiff (Respondent)

– and –

NATIONAL HOCKEY LEAGUE PLAYERS’ ASSOCIATION (NHLPA), AXIS INSURANCE, MATHIEU SCHNEIDER, RICHARD SMIT, ROMAN STOYKEWYCH, MICHELLE ALLEN, STEPHEN SAX, TRACEY CORDEIRO, SANDRA MONTEIRO, and STEPHEN FRANK Defendants (Applicants)

Papageorgiou J.

Released: December 14, 2020