Court File and Parties

COURT FILE NO.: CV-20-00646993

DATE: 20221123

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: SALMA JANMOHAMED, Plaintiff

AND:

DR. M. ZIA MEDICINE PROFESSIONAL CORPORATION, Defendant

BEFORE: Myers, J.

COUNSEL: Andrew Monkhouse and Boris Alexander Counsel, for the Plaintiff

Amer Mushtaq Counsel, for the Defendant

HEARD: October 21, 2022

AMENDED ENDORSEMENT[^1]

Relief Requested

[1] Assess the costs of the action pursuant to the settlement agreement among the parties.

Disposition

[2] Order to go as set out in the "Costs" block below.

Costs

[3] Costs on a partial indemnity basis, fixed at $30,000 all inclusive, are payable by the Defendant to the Plaintiff forthwith as the matter is over.

Brief Reasons

[4] The parties settled all issues but costs. They ask me to ascribe success and blame on reading their submissions or, in the plaintiff's case, by reading the thousands of pages of summary judgment materials and the parties' lengthy affidavits of documents. Unfortunately, neither endeavour equips me to do what the parties want – to have a judge support their side on the merits. If they wanted that outcome, they should have gone to the motion or to trial. See: Muskala v Sitarski, 2017 ONSC 2842.

[5] I am prepared to take on the task of fixing costs on the costs submissions and outlines filed as requested by the defendant. I have skimmed some other material if only to confirm that does not let me assess who had the moral high ground. It is civil litigation about money. The parties chose their strategies and spent what they chose to spend for their own reasons. Similarly, they settled when they did for the amounts they did for their own reasons as well. The reasons are privileged and are rightly not before me. I do not know, for example, if the plaintiff capitulated for fear of losing the mitigation argument or if the defendant chose to make a final offer that was not inclusive of costs, to avoid intrusive investigation of its business or if it was always willing to pay far more and brilliantly negotiated the plaintiff down. There are innumerable other possible reasons to account for the settlement. I have no idea what to infer.

[6] In other words, I cannot tell if the settlement of $15,000 was great or terrible for either side. I agree with the plaintiff that it reflects a settlement in the reasonable range of expectation from the Bardal factors. But I agree with the defendant that this point also shows that the action might well have been brought in the Small Claims Court.

[7] The plaintiff claimed bad faith and discrimination. This is excessive but typical of this type of litigation. As is also typical, she waived those claims for free, in order to qualify for summary relief (whether by a motion for summary judgment or summary trial). This is standard fare of pleading to ensure that discovery is available just like every car accident case has a litany of far-fetched allegations of driver negligence to ensure that the plaintiff is able to ask questions on discovery. Hence the plea of bad faith and Human Rights Code issues were unremarkable.

[8] From 30,000 feet, it also appears that the defendant fought the case very aggressively. It too knew the likely range of outcomes as the Bardal factors are objective and there are books and charts and websites available that give a fairly accurate assessment of outcomes based on those inputs. The case never supported the costs of a motion to strike or an appeal from a scheduling order. The difference between discovery and cross-examination in a very modest case where mitigation is probably the only real issue was negligible.

[9] The fixing of costs is a discretionary decision under section 131 of the Courts of Justice Act. That discretion is generally to be exercised in accordance with the factors listed in Rule 57.01 of the Rules of Civil Procedure. These include the principle of indemnity for the successful party (57.01(1)(0.a)), the expectations of the unsuccessful party (57.01(1)(0.b)), the amount claimed and recovered (57.01(1)(a)), and the complexity of the issues (57.01(1)(c)). Overall, the court is required to consider what is "fair and reasonable" in fixing costs, and is to do so with a view to balancing compensation of the successful party with the goal of fostering access to justice: Boucher v Public Accountants Council (Ontario), 2004 CanLII 14579 (ON CA), (2004), 71 O.R. (3d) 291, at paras 26, 37.

[10] The normative approach in Ontario is that costs presumptively go to the successful party. Here the defendant paid the plaintiff 150% of the amount it initially paid under her contract of employment. The defendant seeks costs however because it had a succession of offers to settle and the plaintiff accepted the least of them. It is true that the principal value offered in each successive offer decreased. But the initial offers were all "inclusive of costs". Only the final offer was exclusive of costs. It is disingenuous to say that the final offer is worth less than the prior offers. It is not. Especially in a case where costs will match or exceed the principal payment, the treatment of costs in the offer to settle cannot just be ignored. This argument itself tells me something about the defendant's approach.

[11] The defendant then claims that much of the cost of the proceeding was due to a "misrepresentation" by the plaintiff or her counsel. The plaintiff says that she always had a second job while working for the defendant. When she continued that job after her termination, her position was that she had not obtained new mitigative employment. This was a legal position as much or more than a factual one. There is one email in which counsel for the plaintiff is alleged to have denied even the existing (second) job. But the parties were not in doubt as to what the issue was. Moreover, the plaintiff was always required to make full disclosure and she did so. This is just mudslinging and focusing tightly on a single tree rather than viewing the forest as a whole.

[12] In light of Muskala and Rule 57.05 (1) I considered awarding no costs. But that would be taking far too technical a position and would not be just. A plaintiff whose employment is terminated without cause is entitled to pay in lieu of reasonable notice. Employers should not be incentivized to low-ball and then force a plaintiff to sue to obtain what everyone knows is justly due. Costs and delay are horrible risks to a plaintiff who finds herself sitting at home having to spend thousands of dollars, while unemployed and vulnerable, to chase money that is obviously due from a wellfunded employer. In my view a plaintiff should reasonably expect to be paid her costs on a partial indemnity basis in a wrongful dismissal action. The quantum is an issue and I deal with it below. But it would be fundamentally unjust to leave the plaintiff under water as a result of bringing her employer to a position that it ought to have arrived at or near and offered fairly at the time it terminated her employment. I therefore recognize this case as within the exceptional circumstances that I discussed in Muskala.

[13] As to the quantum, the defendant's Costs Outline is under-inclusive and makes comparison one-to-one difficult. This case had far too much procedure compared to the amounts in issue. That falls as much or more on the defendant as the plaintiff. The defendant's affidavit of documents may have been a "document dump" to cause costs. The amount of back-and-forth positional emails on every step and even on and after the settlement was noteworthy.

[14] I have looked at the rates claimed by the plaintiff's counsel and they are well within market. In all, making around a 20% deduction for the plaintiff's own overkill (recognizing that it takes two to tango), in my view it is fair, reasonable, and well within the amount that the defendant ought reasonably to have expected, for the defendant to pay the plaintiff costs of $30,000 all-inclusive. This is net of the costs of the last several days that the parties agreed would go to the defendant on a substantial indemnity basis. I assess those costs at $3,000. While counsel says he was preparing for examinations, the settlement was near finalized by

that time. The plaintiff defendant should be paid for finalizing the settlement as agreed. I would not recognize any value for preparation for examinations in those circumstances. Once the lawyers knew that the case was going away for $15,000 plus costs and were just debating details, all other work ought to have stopped.

"FL Myers"

Myers, J.

Date: October 21, 2022

[^1]: This endorsement was originally released on October 21, 2022. It has been revised in publishable form and to correct a typo as shown in para. 14 below.