Court File and Parties

COURT FILE NO.: CV-20-644446-0000

DATE: 2022-01-04

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Pylyp (Phillip) Pavlov, Plaintiff

AND:

The New Zealand and Australian Lamb Company Limited, Defendant

BEFORE: Stewart J.

COUNSEL: Matthew Fisher, for the Plaintiff

Greg McGinnis, for the Defendant

HEARD: In Writing

COSTS ENDORSEMENT

[1] In my decision of November 5, 2021, I invited counsel for the parties to provide written submissions as to costs if that subject could not be agreed upon by them.

[2] I now have received and considered submissions from both parties.

[3] This action was a comparatively straightforward one for damages for wrongful dismissal. The only real substantive issue for trial was the length of reasonable notice to which the Plaintiff was entitled.

[4] I reached the determination that ten months’ notice of termination of employment was reasonable in all of the circumstances. The parties have agreed that when amounts already paid have been deducted the Plaintiff is to recover the sum of $118,305.08 as damages for failure to provide reasonable notice.

[5] The Plaintiff was successful in recovering judgment and is entitled to obtain an order for costs. The Defendant does not contest that entitlement but takes issue with the amount sought.

[6] The Plaintiff made a series of offers to settle prior to trial, each of which was less than that recovered. These offers were made in order to arrive at a compromise to make a trial unnecessary.

[7] The Defendant rejected these offers. Although the Defendant did make counter-offers they were substantially less than the Plaintiff’s compromise position and much less than his recovery at trial.

[8] The Plaintiff now seeks costs on a combined partial indemnity (pre-offer) and substantial indemnity (post-offer) basis in a total amount of $84, 394.05.

[9] As a result of the impact of Rule 76.12.2 (1) governing Simplified Procedure actions, the Plaintiff acknowledges that costs to be awarded are limited to $56,500.00 inclusive of HST, plus the sum of $4560.28 for disbursements incurred.

[10] The Defendant submits that the costs sought are excessive and disproportionate. It suggests that a costs award in the range of $30,000.00 to $35,000.00 would be more appropriate.

[11] The Defendant made no offer that is one that should be given any serious weight in considering the appropriate disposition as to costs of the trial. However, I do agree that the issue of reasonable notice is one which was straightforward and uncomplicated. I also do not consider that the Defendant should be punished for taking the position that the dispute was one that was not the proper subject of determination by way of a motion for summary judgment. It may even be possible that proceeding to a summary trial as occurred here ended up being the most expeditious and economical way of determining the merits of the Plaintiff’s case.

[12] Nevertheless, it is evident that the Defendant refused to offer to compromise the action by accepting any offer put forward by the Plaintiff and, as a result, the Plaintiff was obliged to incur legal fees and wait for trial during which time he remained without an income.

[13] Having considered the arguments advanced on behalf of the parties, I am of the view that a fair, reasonable and proportionate amount to award to the Plaintiff for his costs of this proceeding is $50,000.00 inclusive of all applicable taxes, plus $4560.28 for disbursements incurred. This disposition may be reflected by order accordingly and incorporated into the judgment in this action.

Date: January 4, 2022