Court File and Parties

COURT FILE NO.: CV-20-00640387-0000 DATE: 20210317 SUPERIOR COURT OF JUSTICE – ONTARIO

RE: PETER IRIOTAKIS, Plaintiff AND: PENINSULA EMPLOYMENT SERVICES LIMITED, Defendant

BEFORE: S.F. Dunphy J.

COUNSEL: Kimberly Sebag, for the Plaintiff Puneet Tiwari, for the Defendant

HEARD at Toronto: in writing

Reasons for Decision – Costs

[1] In the present case, both parties essentially claim victory and expect to be awarded costs as the fruit of their victory. The reality is more nuanced than that. These are my reasons for decision on the matter of costs.

[2] I granted the plaintiff summary judgment in a wrongful dismissal case, my reasons for that decision being reported at Iriotakis v. Peninsula Employment Services Limited, 2021 ONSC 998. I shall not repeat here the facts that are discussed in detail there. I reserved my decision about costs pending receipt and review of written submissions which I have now received and read.

[3] The damages claimed here were quite significant despite the relative brevity of the employment relationship. The award obtained by the plaintiff was well within Small Claims Court jurisdiction despite a far larger claim having been maintained throughout. The defence was, on the other hand, very largely successful and would have to be considered the winning party were success to be measured in the value of points won or lost. While the plaintiff did obtain judgment and was victorious in that narrow sense, only a small fraction of the claim was successful, and it cannot reasonably be supposed that the litigation would have been avoided had the defence paid up front the amount awarded after a hearing in this case.

[4] Wrongful dismissal cases represent a significant component of civil litigation in this jurisdiction. Cause is seldom seriously in issue. Most litigation seeks no more than a ruling on what notice is “reasonable” under the common law. For better or for worse, the Legislature has seen fit to prescribe only minimum standards applicable to the termination of the employment relationship. The common law is so customized or fact-centric in its approach to the question as to appear at times almost allergic to certainty. Written contracts are very often struck down in whole or in part should even a theoretical conflict with the legislation be demonstrated. Despite all of this, themes and ranges can be extracted with diligence from the jurisprudence and those seeking to avoid the uncertainty and cost of litigation can usually do so where claims are pursued or defended closer to the middle of the road than its extremes.

[5] My critique of the conduct of counsel in this case is a comparatively mild one – the hearing itself was efficiently organized and heard. Both sides co-operated in having this case decided via summary judgment. On the other hand, it is fair to observe that both sides pursued claims or maintained defences well past the point where it ought to have been clear that they offered little in the way of reasonable prospects of success. Such actions tend to stand in the way of constructive settlement discussions and add time and expense to the litigation process overall. The costs of litigation may have been avoided entirely with a settlement had more realistic positions been adopted early on.

[6] In my view, with success as divided as has been the case here, this is an appropriate case for me to decline to award costs to either side.

S.F. Dunphy J. Date: March 17, 2021