COURT FILE NO.: 28630/21
DATE: 2022-11-21
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
CHAD DAKIN
Plaintiff
– and –
ALGOMA TUBES INC.
Defendant
Self-Represented
Alison M. Adam, for the Defendant
HEARD: Written Submissions
GAREAU J.
decision on costs
[1] On September 29, 2022, the court released a decision granting the defendant’s motion and dismissing the plaintiff’s claim.
[2] On the issue of costs, I invited the parties to provide me with their written submissions. I received a costs outline from the defendant but no submissions from the plaintiff.
[3] In its cost outline, the defendant seeks costs of $17,186.76 broken down as follows:
Fees $16,575.00
Estimated lawyer fee for appearance $600.00
Disbursements $611.76
[4] The time spent by each counsel and the amount claimed both on a partial indemnity rate and a full indemnity rate are outlined in the costs outline submitted by the defendant
[5] The defendant was completely successful in this litigation in having the action brought by the plaintiff dismissed. I agree with the defendant’s assertion in its costs outline that “the plaintiff should have acknowledged the well settled law with respect to the exclusive jurisdiction of arbitrators over matters arising out of a collective agreement.”
[6] As set out in s. 131(1) of the Courts of Justice Act, R.S.O. 1990 c.43, costs are in the discretion of the court subject to any provision in the rules that may assist the court in the exercise of its discretion.
[7] In the exercise of its discretion under s. 131 of the Courts of Justice Act to award costs, the court may consider the result in the proceeding, any offer to settle made in writing, and the factors set out in s. 57.01(1) of the Rules of Civil Procedure.
[8] It does not appear that any offers of settlement have been exchanged between the parties, which is understandable given the circumstances of this case.
[9] Given the defendant’s success in the litigation it is appropriate that they be awarded some costs. As to the scale of costs, I am of the view that the appropriate scale is partial indemnity costs. Although the plaintiff had an unrealistic assessment of his case, I cannot conclude that the plaintiff was guilty of “reprehensible conduct” or “malicious conduct” or conduct of such a negative nature that would attract substantial indemnity costs. As noted by McLachlin, J. (as she then was) for the majority of the court in Young v. Young, 1993 CanLII 34 (SCC), [1993] 4 S.C.R. 3 at page 134 of that decision, solicitor and client costs “are generally awarded only where there has been reprehensible, scandalous or outrageous conduct on the part of one of the parties.” The plaintiff was misguided but not malicious.
[10] In reviewing the costs outline submitted by the defendant, the Rules of Civil Procedure, the complexity of the matter, the conduct of the parties and the principle of proportionality, I am of the view that a fair and reasonable amount for costs is the sum of $12,000, all inclusive.
[11] Therefore, there shall be an order that the plaintiff pay to the defendant costs of this action fixed at $12,000, all inclusive, payable forthwith.
Gareau J.
Released: November 21, 2022
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
CHAD DAKIN
- and –
ALGOMA TUBES INC.
decision on costs
Gareau J.
Released: November 21, 2022