Court File and Parties

COURT FILE NO.: CV-20-00652969-0000 DATE: 20220421 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: MARIA INCOGNITO AND: SKYSERVICE BUSINESS AVIATION INC. and PETER BROMBY

BEFORE: VERMETTE J.

COUNSEL: Peter Waldmann, for the Plaintiff Trevor Lawson, for the Defendant Skyservice Business Aviation Inc.

HEARD: In writing

Endorsement as to Costs

[1] On March 22, 2022, I released an endorsement granting the motion brought by the Defendant Skyservice Business Aviation Inc. (“Skyservice”) for an order striking out all allegations against Skyservice in the Plaintiff’s Fresh as Amended Statement of Claim with respect to vicarious liability for sexual harassment, without leave to amend.

[2] The parties were not able to agree on costs and have delivered costs submissions.

Positions of the Parties

a. Position of Skyservice

[3] Skyservice seeks costs on a substantial indemnity scale in the amount of $38,549.89 or, in the alternative, on a partial indemnity scale in the amount of $14,562.88.

[4] Skyservice submits that there is no reason in this case to depart from the general rule that costs should be awarded to the successful party. It further submits that the quantum of costs that it seeks is fair and reasonable in the circumstances, in light of the relevant factors set out in Rule 57.01 of the Rules of Civil Procedure. Skyservice points out that the costs that it seeks on a partial indemnity basis are similar to the costs set out in the Plaintiff’s bill of costs ($15,103.58), which demonstrates the reasonableness of the costs sought by Skyservice.

b. Position of the Plaintiff

[5] The Plaintiff submits that granting the Defendant an award of costs of $38,549.89 on a substantial indemnity basis would be unfair and unreasonable in the circumstances. She points out that Skyservice has not provided any explanation supporting entitlement to costs on a substantial indemnity basis, and that nothing in this case would warrant an award of costs on a substantial indemnity basis.

[6] The Plaintiff argues that Skyservice did not succeed entirely in opposing her request to amend her claim based on the following statement in paragraph 28 of my endorsement: “However, the Plaintiff is not prevented from making amendments to the Fresh as Amended Statement of Claim for monetary compensation under section 46.1 of the Code based on alleged infringements of provision(s) of the Code other than sections 5(2) and 7.”

[7] The Plaintiff further argues that her pursuit of a novel tort of vicarious liability for sexual harassment was justifiable on the facts and the case law and, therefore, her refusal to strike out the claim merely for being novel was proper and reasonable.

[8] While the Plaintiff objects to the quantum sought by Skyservice on a substantial indemnity basis, she does not dispute Skyservice’s calculation for partial indemnity costs, and she notes that the amount claimed by Skyservice on a partial indemnity basis is overall generally similar to the Plaintiff’s partial indemnity costs.

Entitlement to Costs

[9] Skyservice was the successful party on the motion. In my view, there are no factors in this case that militate against the general principle that costs should follow the event. The Plaintiff does not appear to dispute this. I interpret her costs submissions as objecting only to an award of costs on a substantial indemnity basis. In any event, even if I am wrong in this interpretation, I find that Skyservice is entitled to its costs of the motion.

Scale of Costs

[10] As has been observed in many cases, costs on the elevated scale are exceptional and are reserved for those situations when a party has displayed reprehensible, scandalous or outrageous conduct: see Quickie Convenience Stores Corp. v. Parkland Fuel Corporation, 2021 ONCA 287 at para. 4.

[11] As pointed out by the Plaintiff, Skyservice has not provided any explanation in its costs submissions supporting an award of costs on a substantial indemnity basis in this case.

[12] In my view, there was no conduct in this case that would justify an award of costs on a substantial indemnity basis.

[13] Accordingly, an award of partial indemnity costs is appropriate.

Quantum

[14] There is no dispute regarding the amount of costs sought by Skyservice on a partial indemnity basis. I have reviewed Skyservice’s costs outline and I find that the time spent, the partial indemnity rates, the delegation of work and the costs sought are reasonable in the circumstances. The reasonableness of the amount sought by Skyservice on a partial indemnity basis is confirmed by the fact that the Plaintiff’s costs outline reflects a slightly higher amount on a partial indemnity basis. I also note that the total number of hours spent by both sides is almost identical.

Conclusion

[15] Taking the foregoing into account, as well as the factors set out in Rule 57.01(1) of the Rules of Civil Procedure, I find that the fair and reasonable award of costs in favour of Skyservice for the motion is on a partial indemnity basis in the all-inclusive amount of $14,562.88. In my view, this is an amount that the Plaintiff should reasonably have expected to pay in the event that she was unsuccessful on the motion.

[16] Accordingly, I order that the Plaintiff pay to Skyservice its costs of the motion in the all-inclusive amount of $14,562.88 within 30 days.

Vermette J. Date: April 21, 2022