Court File and Parties

COURT FILE NO.: CV-18-600206

DATE: 20210412

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: AMANDA CHRISTINA DE FACENDIS, Plaintiff

AND:

TORONTO PARKING AUTHORITY and VITO DITTA, Defendants

BEFORE: Mr. Justice M.D. Faieta

COUNSEL: Joseph Sidiropoulos, for the plaintiff Jeffrey E. Goodman and Edward J. O’Dwyer, for the defendant Toronto Parking Authority Belinda A. Bain, for the defendant Vito Ditta

HEARD: In Writing

COSTS ENDORSEMENT

[1] On November 17, 2020, the defendants’ a motion to dismiss the plaintiff’s claim for want of jurisdiction was heard. The motion was subsequently granted. See De Facendis v TPA & Ditta, 2021 ONSC 1695.

[2] The defendant Toronto Parking Authority (“TPA”) claims its partial indemnity costs of $37,847.25 inclusive of HST and disbursements. The defendant Vito Ditta (“Ditta”) claims his partial indemnity costs of $26,618.73 inclusive of taxes and disbursements. The plaintiff submits that the defendants should not be awarded costs as they allegedly failed to accept the plaintiff’s multiple offers to discontinue this action. Instead, the plaintiff submits that she should be awarded her partial indemnity costs, in the amount of $27,087.79, for being forced to proceed with the hearing.

ANALYSIS

[3] The principles related to the award of costs in a civil proceeding were summarized by the Ontario Court of Appeal in DBDC Spadina Ltd. v. Walton, 2018 ONCA 232, at para. 4, as follows:

Costs are in the discretion of the court. The factors relevant to the exercise of discretion are set out in Rule 57.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. They include the result and relative success of each party, the complexity of the proceeding, the importance of the issues and the conduct of any party that impacted the duration of the proceeding. The court must consider the purposes of costs, which include both the indemnification of successful litigants for costs of the litigation and the facilitation of access to justice: Boucher v. Public Accountants Council (Ontario) (2004), 2004 CanLII 14579 (ON CA), 71 O.R. (3d) 291 (C.A.), at paras. 35-37.

Who was the Successful Party?

[4] A successful party is presumed to be entitled to their costs. There is no dispute that the defendants were the successful parties.

Amount of Costs

[5] The plaintiff does not challenge the amount of costs claimed by the defendants except as follows.

[6] The plaintiff submits that the TPA and the TPA have routinely adopted each other’s submissions and unnecessarily duplicated their defence efforts. She submits that they should not collect two sets of costs.

Settlement Offers and the Behaviour of a Party that Lengthened or Shortened the Proceeding

[7] The defendants submit that they made reasonable settlement offers that were rejected by the plaintiff. The circumstances were as follows:

• Offers - November 9, 2018. Following delivery of their motion records, on November 9, 2018, counsel for the parties exchanged the following emails. The plaintiff notified the defendants that she would be prepared to discontinue this action as against all parties on a without costs basis and without prejudice to future actions. Mr. Goodman declined this offer and asked whether the plaintiff would be prepared to agree to a dismissal of her action without costs that is without prejudice to her pursuing arbitration under the collective agreement. The plaintiff declined this counter-offer as she did not know whether the grievance would be entertained and thus did not want to waive her right to re-commence this action. Mr Sidiropoulos further stated that since pleadings were still open, the defendants’ consent was not required under Rule 23.01 to discontinue this action. He asked for the defendants to advise whether they would seek costs under Rule 23.05. Mr. Goodman advised that he would recommend that the TPA seeks its costs under Rule 23.05.
• Proposed Release – November 20, 2018. The TPA delivered a draft Order for the dismissal of the action without costs as well as a draft Release which did not release any rights that the plaintiff had under the Ontario Labour Relations Act or the collective agreements. The plaintiff rejected the Release as being too broad.
• Letter – November 10, 2020 – The TPA notified of the recent decision in Greenlaw v Scott, 2020 ONSC 2028 which found that the Court had no jurisdiction over a claim for workplace related sexual assault. The defendants offered a without costs dismissal of the action that would not impact the plaintiff’s arbitral rights under the collective agreement. On November 13, 2020 the plaintiff rejected this proposal and stated that the defendants had attempted to extort an onerous blanket release for all manner of action unrelated to the present case as a condition of discontinuance.

[8] The plaintiff also submits that Ditta should be required to pay the plaintiff’s costs on a “full partial indemnity basis” as “[h]aving discovered she was governed by the union agreement, the plaintiff attempted to extricate herself from the proceedings only to have Ditta and TPA attempt to blackmail her into a morally reprehensible blanket release for all past and future torts.”

[9] I find that the plaintiff’s position. The plaintiff was not “forced” to proceed with this action. Under Rule 23.01 the plaintiff could have filed a Notice of Discontinuance with consent of the parties or leave of the court subject to the possible cost consequences under Rule 23.05. It was not blackmail for the defendants to seek their costs of the discontinuance as the Rules contemplate that a defendant may do so. Instead, the plaintiff chose to negotiate terms of discontinuance on a “without costs” basis. In the end, the plaintiff did not accept the proposed terms. I find that the proposed terms were not an onerous blanket release of all manner of actions related to the present case given that the claims and causes of action released all related to the plaintiff’s employment with the TPA.

Complexity of the Proceeding

[10] The issues raised by the motion were not complex.

Behaviour that Impacted the Duration of this Proceeding

[11] Other than as described elsewhere in this Endorsement, there neither party made allegations that the other party’s behaviour impacted the duration of this proceeding.

The Importance of the Issues

[12] The plaintiff submits that the case was a matter of access to justice and public interest and having been denied any other kind of remedy she should not have to pay any costs. The plaintiff submits that the issues were important because her Union had refused her request to grieve her complaint on her behalf, that her duty of fair representation complaint was at a “dead end” and thus this civil proceeding was her only forum for resolution. The defendants submit that the plaintiff’s submission should be rejected as it is unsworn evidence that was not led on the motion. I agree.

Any Other Matter Relevant to Costs

[13] The plaintiff submits that the court may decline to make an award of costs when it would bring the administration of justice into disrepute: Steen Estate v. Iran (Islamic Republic), 2011 ONSC 6464, paras. 57-58. Neither Ditta nor the TPA responded to this assertion. Ditta has denied most, but not all, of the plaintiff’s allegations of sexual assault and sexual harassment. An investigator’s report prepared for the TPA found that the plaintiff’s allegations were substantiated on the balance of probabilities. Given Ditta’s reprehensible conduct that gave rise to this action, I accept the plaintiff’s submission that it would bring the administration of justice into disrepute to require that the plaintiff pay Ditta’s costs.

Conclusions

[14] I find that it is fair and reasonable for the plaintiff to pay partial indemnity costs of $20,000.00, inclusive of disbursements and taxes, to the TPA. I dismiss Ditta’s claim for costs as well as the plaintiff’s claim for costs.

Mr. Justice M. Faieta

Date: April 12, 2021