Court File and Parties

COURT FILE NO.: CV-20-00640028-0000 & CV-20-00640671-0000 DATE: 20210609

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: MILAN RISTANOVIC, Plaintiff (Moving Party) AND: CORMA INC., Defendant

AND RE: ELIYAHU ASAFOV, Plaintiff (Moving party) AND: CORMA INC., Defendant (Responding Party)

BEFORE: S.F. Dunphy J.

COUNSEL: Jordan Reiner, for the Plaintiff (Moving party) Milan Ristanovic and Plaintiff (Moving party) Eliyahu Asafov D. Barry Prentice, for the Defendant (Responding Party)

HEARD at Toronto: June 4, 2021

REASONS FOR DECISION (COSTS)

[1] Following the hearing on June 4, 2021, all of the open issues in this case have been resolved save that of costs.

[2] The plaintiffs each claim full indemnity costs which they accept are capped at $50,000 plus disbursements and HST by reason of rule 76.12.1 of the Rules of Civil Procedure. The Outline of Costs provided by the plaintiffs was substantially identical for each plaintiff and detailed 133.44 hours for each of them. The dockets of time provided were virtually identical. The plaintiffs’ counsel claims a substantial indemnity rate of $450 per hour and a partial indemnity rate of $337.50.

[3] Applying the $50,000 cap on fees, the plaintiffs each claim $56,500 for fees plus HST combined with a further $1,117.08 claimed for disbursements inclusive of HST. While the cap on fees under Rule 76.12.1 is agreed to be applicable in this case, the plaintiffs outlined the grounds for which each sought full indemnity costs by way of justifying fees at the top end of the range since full indemnity costs as claimed would exceed the range by a comfortable margin.

[4] The following factors were cited in support of the applying full indemnity costs at least to the point of reaching the top end of the fees range:

• The plaintiffs were each largely successful on almost every point; • Both plaintiffs delivered offers to settle relatively early in the process which the plaintiffs contend they beat; • The refusal of the defendant to attend meaningful mediation; and • The circumstances of the recall by the defendant of the plaintiffs to the workplace shortly before the hearing.

[5] The defendant’s position was that the costs claimed are wildly excessive being almost three times the actual costs of the defendant in defending the same action and are also disproportionate to the questions at issue. The offer to settle did not “beat” the result at trial in fact and the plaintiffs’ success on most points is not surprising given the concessions made by the defence which mainly sought to obtain a ruling on its position of the reasonableness of having laid off the plaintiffs due to the pandemic. Finally, the defendant attributes the plaintiffs’ confusion regarding the recall notice sent out prior to trial to plaintiffs’ counsel having made unwarranted assumptions that could easily have been verified.

[6] In my view, full indemnity costs are not appropriate in this case. The only material issue separating the parties at the hearing was the difference between 18 and 24 months’ notice and whether the pandemic offered any kind of basis for the defendant to avoid that outcome in whole or in part. The latter issue was a novel one raised in good faith and was not one that a mediator could have been expected to be very helpful with. This was a quite simple and straightforward case but for the relatively novel pandemic issue which itself was largely a legal argument that consumed little to no time in preparing the factual foundation. The plaintiffs “beat” their offers to settle only if one ignores mitigation. They did mitigate in fact after the date of the offers to settle and that mitigation brought their damages well below the level claimed in the Offers to Settle. Finally, I attach no blame to either party regarding the misunderstanding arising from the recall. Plaintiffs’ counsel might have avoided some or all of the hearing had clarification been sought simply and directly. The lost time was only about a week at all events and I am not prepared to lay that at the feet of either side.

[7] I also find myself in very significant agreement with the defendant that the costs claimed are disproportionate and unreasonable.

[8] The total monetary damages awarded was just over $67,000 in the case of one defendant and just over $95,000 in the case of the other. The cases were quite simple as I have noted. There were few issues on which the parties were apart by more than a relatively small amount save and except the pandemic issue. The cases were materially identical. Pleadings, correspondence exchanged, facta, bills of costs virtually all documents created in the course of managing this case from soup to nuts were essentially the same with only a handful of clerical changes.

[9] I have examined the time charges and find them to be excessive. The higher fees associated with experience are intended to reflect in significant measure the greater efficiency that comes with that experience. Even this last hearing (at which the most significant disputed issue when the dust settled was costs) generated a very expensive factum for which almost 25 hours of total time was charged. I find that the losing side in this case could reasonably expect that even if brought as separate claims, the two cases being handled by common counsel on both sides involving almost identical issues and documents would result in substantial efficiencies rather than claimed fees at fully 100% of the maximum allowable amount for both claims.

[10] The defendant’s total fees for both cases on a full indemnity scale was less than the partial indemnity claim for each separate plaintiff and total time charged was slightly less than one-quarter the time charged by the plaintiff’s counsel for both claims together. I recite this by way of comparison only – different roles have different time demands and one cannot simply extrapolate from the time dockets of one counsel fairly. That being said, the defendant was the one advancing the novel legal argument (unsuccessfully) and bore the burden of attempting to persuade the court to climb that mountain with him. There was substantial agreement on almost all other financial issues and the gap between the parties on the relevant notice period was comparatively small and not something that required significant exploration in the evidence.

[11] I find that $50,000 inclusive of HST for both claims combined is a very generous assessment of costs having regard to the Simplified Rules, the lack of complexity of this case, the reasonable expectations of the parties, the amount claimed and recovered and the fact these two proceedings were for all intents and purposes a single proceeding and could easily have been brought on that basis. To this total should be added the disbursements as claimed ($1,117.08 for each). The total all-inclusive costs award is thus $26,117.08 for each plaintiff. This amount will be inserted on the form of judgment that I have asked the parties to prepare for me.

S.F. Dunphy J.

Date: June 9, 2021