COURT FILE NO.: CV-19-79011
DATE: 2021-06-09
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
DIANE CURRIE
Plaintiff
– and –
NYLENE CANADA INC.
Defendant
Melynda Layton, for the Plaintiff
Caroline Richard, for the Defendant
HEARD: In writing
DECISION ON COSTS
M. smith j
[1] The Plaintiff Diane Currie (“Ms. Currie”) obtained a judgment for $138,962.22 (less any payments received) against the Defendant Nylene Canada Inc. (“Nylene”), following a two-day trial (Currie v. Nylene Canada Inc., 2021 ONSC 1922).
[2] Ms. Currie seeks an award of costs on a substantial indemnity basis in the amount of $67,710.50. She says that the primary factor for awarding costs at this scale level is because the judgment obtained is more favourable than all her offers to settle.
[3] Nylene takes the position that each party should bear their own costs for several reasons, including their divided success, unnecessary steps taken, amounts claimed being unreasonable, and pre-litigation offer to settle.
ANALYSIS
[4] Costs are at the discretion of the Court (section 131(1) of the Courts of Justice Act, R.S.O. 1990, c. C.43).
[5] Rule 57.01(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (the “Rules”) sets out the factors a Court may consider when deciding on a costs award.
[6] The overriding principals of fairness and reasonableness must be applied to each individual case (Boucher v. Public Accountants Council (Ontario), 2004 CanLII 14579).
[7] Partial indemnity is commonly awarded unless there are compelling reasons to justify an award at the higher scale.
Divided Success
[8] Nylene says that success was divided because of the following: (i) the Court refused to grant Ms. Currie’s request to add a claim for aggravated and moral damages, bad faith conduct and; (ii) the claim for discrimination on the basis of age and disability was denied; and (iii) Ms. Currie’s initial claim of discrimination on the basis of sex was dismissed.
[9] Nylene refers me to three decisions in support of a no cost award: Nielsen v. Sheridan Chevrolet Cadillac Ltd., 2017 ONSC 6930; Mlotek v. York-Med Systems Inc. (c.o.b. YMS), 2016 ONSC 2169; Wyllie v. Larche Communications Inc., 2015 ONSC 4747. In my view, these cases are easily distinguishable to the one before me. While each of these matters are similar in that the defendants were successful in dismissing some of the claims advanced by the plaintiffs, here Ms. Currie obtained a favourable judgment that was significantly higher. Unlike the decisions referred to by Nylene, from a monetary perspective, Ms. Currie was substantially successful at trial.
[10] Nonetheless, I agree with Nylene that it was partially successful in defending some of Ms. Currie’s claims and it is a factor to consider. It is not, however, enough to support a conclusion that no costs should be awarded. Ms. Currie’s success at trial entitles her to receive an award of costs.
Rates and hours charged
[11] Nylene says that counsel for Ms. Currie did not disclose the actual rate charged, forcing the Court to guess the actual partial and substantial indemnity rates. In reply, counsel for Ms. Currie submits that on January 1, 2019, her rate was $400.00 per hour and it increased to $500.00 per hour on January 1, 2020.
[12] An increase of 25% in counsel’s hourly rate from 2019 to 2020 is surprising. Regardless, given that Ms. Currie entered into a contingency agreement, I find that it is a notional rate because Ms. Currie would never have been charged these rates for the work undertaken by her counsel.
[13] Counsel for Ms. Currie was called to the bar in 1996. She says that in accordance with the cost grid, the hourly rates vary between $350.00 and $450.00, on a partial and substantial indemnity basis, respectively. I prefer these rates and find them to be reasonable.
[14] In terms of the time spent, 129 hours of work was undertaken by counsel for Ms. Currie. Nylene does not provide a Bill of Costs to assist with a comparison of hours.
[15] Nylene submits that certain steps taken by Ms. Currie were unnecessary and it lengthened the proceedings. Such examples include: (i) Ms. Currie initially brought a motion for summary judgment, which was later converted to a trial by Master Kaufman; (ii) she did not comply with Master Kaufman’s disclosure order; (iii) she tried to add claims which were unsuccessful; (iv) she failed to withdraw the discrimination claim; and (v) she did not admit the sworn affidavits of Travis Ujjainwalla and Amanda Arseneault.
[16] The trial only lasted two days. Other than the testimonies of Travis Ujjainwalla and Amanda Arseneault, I do not believe that these other steps lengthened the trial. The affidavits that were prepared for the summary judgment motion were relied upon at trial. The failure to comply with Master Kaufman’s order was addressed at the outset of trial with an award of costs thrown away. Ms. Currie was entitled to bring forward the claims she wished to pursue, but as noted above, her failure to succeed comes into play in the determination of the cost award.
[17] In my opinion, a consensus should have been reached between counsel regarding the evidence presented by Travis Ujjainwalla and Amanda Arseneault. The evidence provided by these two individuals was not controversial, and the cross-examination of these two individuals was of limited value.
[18] Nylene also objects to some of the time spent for reviewing my decision and discussions with her client (1.2 hours). I do not have any difficulties with the time spent to review my decision and the requirement to thoroughly explain it to her client. It still forms part of the litigation and, in my opinion, it is important for Ms. Currie that she fully comprehends the decision and how it may impact her life.
Offers to settle
[19] Ms. Currie says that there were three offers to settle made to Nylene: (a) on January 3, 2019, she offered to settle her claim for $99,200.00 plus legal costs; (b) on January 7, 2020, she served a global offer of $86,471.16, which was resent on April 8, 2020; and (c) on July 2, 2020, an offer to settle in the total amount of $68,449.28 was sent to Nylene.
[20] Nylene made two offers to settle: (a) on December 18, 2019, it offered a total sum of $30,574.38; and (b) on April 24, 2020, an offer of $37,476.16 was sent to Ms. Currie.
[21] Nylene urges me to conclude that Ms. Currie’s offer dated January 3, 2019 is not a valid r. 49 offer to settle under the Rules. It argues that the Statement of Claim was issued after the offer. It relies on the Ontario Court of Appeal decision Buccilli v. Pillitteri, 2014 ONCA 337. I agree with Nylene that this offer is not a valid r. 49 offer to settle.
[22] Regarding the January 7, 2020 offer to settle, Nylene says that it never received such an offer. Ms. Currie maintains that the January 7, 2020 offer was sent by regular mail. Irrespective, she says that an identical offer to settle was sent on April 8, 2020. On the record before me, I am unable to determine if the January 7, 2020 offer was indeed delivered.
[23] I find that Ms. Currie made legitimate and reasonable attempts to resolve this matter. On the facts of this case, Nylene’s offers were clearly insufficient. Nylene acknowledges receiving the April 2020 offer to settle, which is less favourable than the judgment. Having looked at the time spent from April 2020 to the trial, it represents approximately 50% of the work.
Other issues
[24] Nylene argues that there are some fees claimed that are not reasonable. They are: (i) pre-litigation items; and (ii) work that should have been performed by administrative staff such as the preparation of transcript of termination meeting; the preparation of mitigation efforts; and the finalization of the transcript from the termination meeting. Nylene relies on 1422986 Ontario Ltd. v. Syncor, 2020 ONSC 4589 at para. 49, where the Court did not allow this type of work to be charged to the other party.
[25] Counsel for Ms. Currie denies that any of the work performed by her pertained to administrative work. In my review of counsel’s Bill of Costs, there are most definitely some entries that refer to this type of administrative work. In the absence of receiving detailed dockets, I tend to agree with Nylene’s position that some of this work is not appropriate billing.
[26] Nylene argues that the preparation of costs submissions (8.7 hours) is excessive. I agree. For this case and having reviewed Ms. Currie’s written submissions, I believe that three to four hours of work should have sufficed.
[27] Nylene says that there are three disbursements which cannot be awarded under Tariff A of the Rules, namely: (i) parking; (ii) photocopying; and (iii) postage. Ms. Currie responds that these disbursements are appropriate. The parking expense was incurred for filing purposes. Photocopying expenses exceeded $500.00 as the affidavit materials totaled approximately 2000 pages. Postage expenses pertained to letters mailed to the client and counsel during litigation. I do not view these disbursements as unreasonable. I accept Ms. Currie’s request for disbursements totalling $2,114.00.
CONCLUSION
[28] A cost award should be proportional to the matter that is before the Court. While the issues in this litigation were important to the parties, they were not complex. An award of costs in the range of $70,000.00 for this two-day trial is, in my view, somewhat disproportional.
[29] By applying r. 49.10, Ms. Currie could get her partial indemnity costs to April 8, 2020 and her substantial indemnity costs thereafter. However, if appropriate, I can depart from the strict application of r. 49.10 of the Rules. The cost consequences of a rejected offer to settle are not automatic: K.K. v. K.W.G., 2008 ONCA 489 at para. 131.
[30] I am not inclined to award costs on a substantial indemnity, partially or otherwise. Substantial indemnity is reserved for exceptional cases and, despite having beaten her offer to settle, I am not satisfied that it would be appropriate to award costs to Ms. Currie at a higher level. I have carefully considered and weighed the r. 57.01 factors and there are a few that militate in Nylene’s favour. Taken as a whole, I believe that the costs should be in the range of the partial indemnity scale, as it would be a fair and reasonable outcome for all parties.
[31] For these reasons, and in exercising my discretion, I fix the fees at $42,000.00 and the disbursements at $2,114.00, plus the applicable taxes, all-inclusive. These costs are payable by Nylene to Ms. Currie, forthwith.
Justice Marc Smith
Released: June 9, 2021
COURT FILE NO.: CV-19-79011
DATE: 2021-06-09
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
DIANE CURRIE
Plaintiff
– and –
NYLENE CANADA INC.
Defendant
DECISION ON COSTS
Justice Marc Smith
Released: June 9, 2021