COURT FILE NO.: CV-14-3892-00
DATE: 2021 06 28
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: LARRY KOURZOS, Plaintiff - and - THE MANUFACTURERS LIFE INSURANCE COMPANY and ROGERS GROUP OF COMPANIES o/a The Shopping Channel, Defendants
BEFORE: D. E. Harris J.
COUNSEL: Marc Rodrigue for Rogers
David Share for the Plaintiff
COSTS ENDORSEMENT
[1] The plaintiff agreed to the January 29, 2021 dismissal of his action against the defendants for wrongful dismissal. Rogers now asks for substantial indemnity costs of $46,544.75 all-inclusive.
[2] The plaintiff claimed that he was disabled from his work with Rogers in the fall of 2012. He stopped coming into work and was terminated on June 12, 2013. His civil action was commenced on August 22, 2014.
[3] The fact of the matter is, as a unionized employee, the plaintiff was bound by the terms of the Collective Agreement between the union and Rogers. The claims launched in his action could not be adjudicated in a court; he was restricted to grievance and arbitration by the terms of the Collective Agreement. It took the plaintiff close to seven years to reckon with this reality and to agree to the dismissal of his action early this year. It is difficult if not impossible to apportion responsibility for this failure between the plaintiff and his previous lawyers.
[4] The defendant’s position is that not only was the action without merit but that there was great difficulty dealing with the plaintiff and his assorted lawyers over the years. His lawyers were at times unresponsive and the plaintiff himself would often not reply to correspondence either. The work Rogers performed to bring the motion for dismissal ought not to have been necessary. The plaintiff should have realized far before he did that his action was doomed.
[5] The plaintiff’s position is that Rogers, contrary to Rule 21 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, was responsible for delaying the defence of the matter by not bringing the motion for dismissal much earlier. There has been prejudice occasioned as a result. Further, the Plaintiff has not worked since being terminated and is impecunious.
[6] There is some merit to the delay argument. The purpose of the rule is to encourage economy in civil litigation. Its aim is to facilitate case management, reduce unnecessary cost and advance the strong interest in early settlement: Fleet Street Financial Corp. v. Levinson, [2003] O.J. No. 441 (Ont. S.C.) at paras. 19-20. Motions should be brought with dispatch.
[7] On the other hand, the Plaintiff’s action had been dormant for years. It was his obligation to prosecute the action. He failed to do so. There was no significant prejudice to him arising from the delay in Rogers bringing the dismissal motion. Of course, the delay was detrimental in a general sense to the court docket and to the public. However, I would not deny or reduce costs based on the delay in this case.
[8] I agree that the plaintiff must carry much of the blame for the work Rogers was required to undertake on this file. The plaintiff had plenty of notice that his action had no merit. He was advised of Rogers’ position that the Collective Agreement precluded his civil action as early as December 2018. It appears that the lawyer the plaintiff originally retained sat on the file for a considerable period. Eventually it was determined that he had retired. On August 14, 2020, Mr. Rodriques acting for Rogers wrote Mr. Kourzos proposing that if he agreed his action should be dismissed, Rogers would not ask for costs. That option had to be exercised in three days, by August 17, 2020. Letters in November and December 2020 renewed the offer. After the dismissal of the action on consent, Rogers offered to forego costs for a full and final release from the plaintiff. It looked like the plaintiff would execute the release but ultimately he did not. In his refusal of this offer and his previous conduct, the plaintiff has shown that he has an obstinate streak.
[9] The rationale for costs are: 1. To indemnify successful litigants for the cost of litigation; 2. To encourage settlements; and 3. To discourage and sanction inappropriate behaviour by litigants: Fong v. Chan(1999), 1999 CanLII 2052 (ON CA), 46 O.R. (3d) 330 (Ont. C.A.), para. 22; Serra v. Serra, 2009 ONCA 395 (Ont. C.A.), para. 8; Boucher v. Public Accountants Council (Ontario), 2004 CanLII 14579 (ON CA), [2004] O.J. No. 2634 (Ont. C.A).
[10] All three are engaged in this instance. However, in my view, the costs requested are far too high. Rogers argues that the issue was straight forward and it was clearly evident that the plaintiff’s action was precluded by the Collective Agreement. If this be the case, the work on the file should have been relatively simple. Having read the materials, that was my impression. However, the Bill of Costs reveals that the lawyer hours on this file approach 100. That is, even considering that two factums were written, substantially excessive. There are no dockets to ascertain when the work was done. The quantum of costs requested and the tone of the costs submission appear overtly punitive. Rogers’ frustration in dealing with the intractable plaintiff is quite understandable but that does not justify awarding excessive costs.
[11] Furthermore, I believe that the plaintiff is likely impecunious. He has not worked since being let go. Rogers relies on Shibish v. Scher, 2015 ONSC 1844 (Ont. S.C.) to say that there is a high onus on a proponent to demonstrate impecuniosity. However, the issue in that case was security for costs, quite a different context from the issue here of awarding costs at the conclusion of litigation.
[12] In my view, the reasonable and appropriate costs award is $10,000 all inclusive. It is to be paid within 12 months.
D. E. Harris J.
DATE: June 28, 2021
COURT FILE NO.: CV-14-3892-00
DATE: 2021 06 28
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: LARRY KOURZOS, Plaintiff - and - THE MANUFACTURERS LIFE INSURANCE COMPANY and ROGERS GROUP OF COMPANIES o/a The Shopping Channel, Defendants
BEFORE: D. E. Harris J.
COUNSEL: Marc Rodrigue for Rogers
David Share for the Plaintiff
ENDORSEMENT
D. E. Harris J.
DATE: June 28, 2021