REASONS FOR DECISION - COSTS

PERELL, J.

[1] This is a costs decision. The background facts may be summarized as follows:

a. The Plaintiff, Sonia Gracias, was dismissed from employment as a dental hygienist for the Defendant, Dr. David Walt Dentistry Professional Corporation (“Walt Dentistry”).

b. After her dismissal, she sued Walt Dentistry for: (a) $50,000 in damages for discrimination for contraventions of the Ontario Human Rights Code;[^1] (b) $50,000 for common law damages for a wrongful dismissal; and (c) $50,000 in punitive damages.

c. After examinations for discovery, Ms. Gracias abandoned her human rights damages claim and her claims for punitive damages, employment benefits, and a bonus, and she brought a motion for a summary judgment. She claimed $43,750 as compensation for a wrongful dismissal claim based on a notice period of seven months. Ms. Gracias submitted that she was entitled to common law damages in lieu of notice because the restrictions in her employment contract were unenforceable because her employment contract unlawfully contracted out of the Employment Standards Act, 2000.

d. In its original Statement of Defence, Walt Dentistry denied the human rights discrimination claim and it pleaded that it could have fired Ms. Gracias for cause for egregious employee misconduct. In its Amended Statement of Defence to Ms. Gracias’ diminished claim that abandons discrimination and punitive damages, Walt Dentistry abandoned its allegations of employee misconduct but submitted that Ms. Gracias’ action should be dismissed because by the terms of her written employment contract, she was barred from claiming more than her Employment Standards Act, 2000 entitlements.

e. In the alternative, Walt Dentistry submitted that, at its highest, the notice period for Ms. Gracias’ wrongful dismissal claim was one month; however, it submitted that there are no compensatory damages because Ms. Gracias received CERB (Canada Emergency Response Benefit) of $16,000 during the Covid-19 pandemic. For either alternative and in any event, Walt Dentistry submitted that if Ms. Gracias’ claim is not barred by her employment contract or reduced to nothing, then her claim should be dismissed because she failed to mitigate.

f. Releasing the dogs of litigation war and going for the jugular, Walt Dentistry submitted that Ms. Gracias falsified her evidence of mitigation with fabricated records of her Internet job applications.

g. Both parties wanted to have their dispute decided by this summary judgment motion.

h. There was a summary judgment motion at which Ms. Gracias was cross-examined viva voce.

i. I reserved judgment, and then I released my decision. I awarded Ms. Gracias a three-month notice period less Employment Standards Act, 2000 entitlements, i.e., $17,242.26 ($18,750 - $1,507.74), with prejudgment interest of $344.85, for a judgment of $17,587.11. I ruled that CERB (Canada Emergency Response Benefit) was not a mitigation credit.[^2]

j. With respect to costs, I concluded my decision by stating in paragraphs 121 and 122:

If the parties cannot agree about the matter of costs, they may make submissions in writing beginning with Ms. Gracias’ submissions within twenty days of the release of these Reasons for Decision, followed by Walt Dentistry’s submissions within a further twenty days.
If the parties make submissions, I alert them that based on what I presently know about the prosecution of the claim and of the defence, there is some serious explaining for them to do to justify a costs award to either party and it is quite possible that there shall be no order as to costs.

[2] Given that Ms. Gracias had abandoned her very serious allegations of human rights violations without substantiating them and given that she had been dilatory and deleterious in how she managed her responsibilities with respect to production of documents and in answering undertakings and given that Rule 57.05(1) provides that if a plaintiff recovers an amount within the monetary jurisdiction [then $25,000] of the Small Claims Court, the court may order that the plaintiff shall not recover any costs, it is with chutzpah piling on top of audacity piling on top of gall that Ms. Gracias has the nerve to request partial indemnity costs of $35,000, all inclusive.

[3] Given that Walt Dentistry was the unsuccessful party and given that it had abandoned its serious allegations of dismissal for cause without substantiating them and given that it failed in its efforts to prove that Ms. Gracias had fabricated evidence and with the added spice of set-off irony[^3] to go along with its own chutzpah-audacity-gall, Walt Dentistry has the nerve to submit that although it agrees with my inclination to award no costs on the summary judgment motion, it should be paid its costs thrown away in the amount of $17,387.88.

[4] Having read the parties’ persisting bitter recriminations one of the other, I am persuaded that the appropriate award in the circumstances of this case is that there should be no order as to costs.

Perell, J.

Released: July 12, 2022

COURT FILE NO.: CV-20-00640250-0000

DATE: 20220712

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

SONIA GRACIAS

Plaintiff

and -

DR. DAVID WALT DENTISTRY PROFESSIONAL CORPORATION

Defendant

REASONS FOR DECISION - COSTS

PERELL J.

Released: July 12, 2022

[^1]: R.S.O. 1990, c. H.19. [^2]: Gracias v. Dr. David Walt Dentistry, 2022 ONSC 2967 [^3]: Setoff Irony = $17,587.11 (judgment for plaintiff) – $17,387.88 (costs to defendant) = $199.23 payable to plaintiff.

Gracias v. Dr. David Walt Dentistry , 2022 ONSC 4093

Case Summary

REASONS FOR DECISION - COSTS

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