ONTARIO SUPERIOR COURT OF JUSTICE (TORONTO REGION)

CIVIL ENDORSEMENT FORM

(Rule 59.02(2)(c)(i)`)

0BEFORE

Judge/Case Management Master

Court File Number:

Myers J

CV-20-00636717-

Title of Proceeding:

LISA BROWN

Plaintiff(s)

-v-

THE BANK OF NOVA SCOTIA

Defendants(s)

Case Management:

Yes

If so, by whom:

X No

Participants and Non-Participants:(Rule 59.02(2)((vii))

Party

Counsel

E-mail Address

Phone #

Participant (Y/N)

The Bank of Nova Scotia

Shivani Chopra

Shivani-Chopra@hicksmorley.com

y

Lisa Brown

Tim Gleason and Amani Rauff

tgleason@dgllp.ca; arauff@dgllp.ca

y

Date Heard: (Rule 59.02(2)(c)(iii))

April 10, 2021

Nature of Hearing (mark with an “X”): (Rule 59.02(2)(c)(iv))

X

Motion

Appeal

Case Conference

Pre-Trial Conference

Application

Format of Hearing (mark with an “X”): (Rule 59.02(2)(c)(iv))

X

In Writing

Telephone

Videoconference

In Person

If in person, indicate courthouse address:

Relief Requested: (Rule. 59.02(2)(c)(v))

Costs of a motion for summary judgment.

Disposition made at hearing or conference (operative terms ordered): (Rule 59.02(2)(c)(vi))

Order made as set out in the “Costs” box below.

Costs: On a

partial

indemnity basis, fixed at $

17,000 all-inclusive

are payable

by

the defendant

to

the plaintiff

[when]

by May 7, 2021

Brief Reasons, if any: (Rule 59.02(2)(b))

The plaintiff successfully resisted the defendant's motion for summary judgment. The defendant sought to enforce a pre-litigation settlement. The issue on the motion was whether a settlement had been reached between counsel for the plaintiff and in-house counsel for the employer.

The defendant submits that costs should be in the cause because the court was unable to determine whether a settlement had been reached or not. However, the burden undertaken by the defendant in bringing the motion was to establish that there was “no genuine issue requiring a trial”. As I was left in doubt and procedurally unable to determine the question, the defendant distinctly failed to meet its burden. The question at issue was always factual, laden with credibility, and lacking contemporaneous objective corroboration. While the court has authority to make findings of fact on a summary judgment motion, Court of Appeal case law left little doubt that this was not a good candidate for such an outcome.

It is relevant to me as well that the motion was brought in a wrongful dismissal action by an employer against a former employee who seeks notice pay. The risk to the plaintiff of motion practice in wrongful dismissal actions is obvious and significant. This is especially the case where the employer does not allege that it had cause for dismissal. In the overwhelming majority of those cases, the employee is owed some amount of money by its former employer. There are few circumstances in civil litigation where the strategic risk of motion practice is higher. The thought of an unemployed employee, who is owed money by the employer, having to pay costs to its former employer is a massive strategic lever due to the vulnerable circumstances often occupied by wrongful dismissal plaintiffs and the gross imbalance of economic power. There is therefore additional reason to dissuade motion practice in wrongful dismissal actions generally and to ensure that deep-pocketed employers do not make strategic gains by bringing longshot motions that they can afford to lose. Costs on a substantial indemnity basis could well be available in such circumstances.

This case does not bear all of the hallmarks of concern that I mention above. However, it was a weak motion brought by a party with much to gain and who will not feel its loss. In my view, costs ought to follow the event.

I am concerned that there is some duplication between the costs incurred by the plaintiff’s counsel of record and Lawpro’s counsel.

I continue to encourage the use of juniors to keep costs down, to improve training, and to encourage diversity in the legal profession. In my view, any deduction for duplication between senior and junior counsel (or students) should be small to avoid discouraging this important practice.

I have reviewed the rates and hours spent in the Costs Outlines for both parties. In my view, a reduction of $5,000 more than offsets for the two concerns referred to in the prior paragraphs. Costs of $17,000 are reasonable for a substantive motion with cross-examinations. Access to justice is not impaired if weak, fact-based motions for summary judgment suffer a disincentive by costs awards in wrongful dismissal actions. Accordingly, costs are ordered as set out in the “Costs” box above.

Additional pages attached:

Yes

X

No

April 12,

, 20

21

Release Date of Endorsement (Rule 59.02(2)(c)(ii))

Signature of Judge/Case Management Master (Rule 59.02(2)(c)(i))