Court File and Parties
COURT FILE NO.: CV-21-00000535
DATE: 2022-11-04
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Steven Elliott
Plaintiff
– and –
Advanced Masonry (Ont) Ltd.
Defendant
Mr. R. Konduros, for the Plaintiff
Mr. R. Wozniak and Ms. J. Greenwood, for the Defendant
THE HONOURABLE JUSTICE j. r. hENDERSON
COSTS DECISION
[1] The defendant brought an unsuccessful motion for summary dismissal of the plaintiff’s wrongful dismissal action. As the successful party, the plaintiff is prima facie entitled to his costs of the motion.
[2] The plaintiff requests costs that are in excess of partial indemnity costs, and less than substantial indemnity costs, fixed at $28,000 all-inclusive. The defendant requests that costs be payable in the cause, but in the alternative the defendant submits that costs fixed at approximately $5,000 all-inclusive would be appropriate.
[3] In my view, there is no reason to defer the costs issue until the case is concluded. Moreover, I find that the defendant has not engaged in any conduct that would justify a punitive costs award. Therefore, I will award costs to the plaintiff on a partial indemnity scale.
[4] Regarding the quantum of costs, the court should fix an amount that is fair and reasonable taking into account the factors set out in rule 57.01. Although the amount of time spent on a proceeding is a factor for consideration, the quantification of costs is not a mechanical exercise whereby the court simply multiplies the number of hours spent on the proceeding by the lawyer’s hourly rate.
[5] In the present case, I find that the plaintiff’s claim is modest, but I also find that the summary dismissal motion was important to the parties, particularly to the plaintiff. That is, if the plaintiff had been unsuccessful on the summary dismissal motion, the plaintiff’s entire action would have been dismissed. Accordingly, I accept that it was necessary for plaintiff’s counsel to spend as much time as necessary to put the plaintiff’s best case before the court.
[6] I also find that the summary dismissal motion was relatively uncomplicated. The primary issue was whether the plaintiff’s claim was restricted to a claim pursuant to the Employment Standards Act. Both parties focused on this issue in oral argument. Once that issue was decided against the defendant, the only other substantial issue was whether a trial was required given the credibility issues that existed.
[7] I further find that there was some confusion as to whether the plaintiff could proceed with a common-law claim because of the way in which the statement of claim was drafted. A more precise pleading by the plaintiff might have eliminated some of the arguments raised in this motion.
[8] I have no difficulty with the amount of time spent on the motion by plaintiff’s counsel, in the range of approximately 40 hours. However, I find that the partial indemnity hourly rate of approximately $550 per hour is excessive.
[9] Considering all of these factors, I fix costs at $12,000 plus $1,560 for HST, for a total award of $13,560, payable by the defendant to the plaintiff within 90 days.
Justice J. R. Henderson
Released: November 4, 2022
COURT FILE NO.: CV-21-00000535
DATE: 2022-11-04
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Steven Elliott
Plaintiff
-and-
Advanced Masonry (Ont) Ltd.
Defendant
COSTS DECISION
J. R. Henderson J.
Released: November 4, 2022