Court File and Parties

COURT FILE NO.: CV-15-64549 DATE: 2023/03/22 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Robert Park, Plaintiff AND Costco Wholesale Canada Ltd., Defendant

BEFORE: Madam Justice Robyn M. Ryan Bell

COUNSEL: Joseph W.L. Griffiths for the Plaintiff Natasha Hyppolite for the Defendant

HEARD: In writing

Costs Endorsement

[1] Following an eight-day trial and written submissions, I dismissed Mr. Park’s action, with costs. Costco Wholesale Canada Ltd. seeks costs on a partial indemnity basis in the amount of $135,814.08 all inclusive. Mr. Park submits that this amount is excessive, and that an appropriate amount would be “no more than $75,000” all inclusive on a partial indemnity basis. This amount, he says, is consistent with r. 76.12.1 of the Rules of Civil Procedure which, with specified exceptions, provides that no party to an action under the simplified procedure rule may recover costs exceeding $50,000. [1]

[2] I start from the principle that costs “should reflect more what the court views as a fair and reasonable amount that should be paid by the unsuccessful parties rather than any exact measure of the actual costs to the successful litigant”: Boucher v. Public Accountants Council for the Province of Ontario. [2] The incurring of costs and time spent by counsel is essentially a judgment exercise. The prudence of counsel’s judgment must be considered at the time the work was done; it is inappropriate to apply a test of hindsight to determine whether the time spent was reasonably necessary to advance the client’s position.

[3] It is difficult to address the reasonable expectations of the unsuccessful party without at least some information as to the costs incurred by that party in addressing the same issues. Mr. Park has not provided me with a bill of costs. Such disclosure would have been helpful, given that Mr. Park’s main complaint is that the total time spent by counsel for Costco was excessive. As examples, Mr. Park highlights that 1) two counsel spent a total of 102 hours preparing for trial, yet the actual time spent in trial was less than 70 hours (assuming eight hours per day for eight days); and 2) two counsel spent a total of 144 hours “at trial”, more than double the total number of hours that the trial actually took to complete. Again, however, I have no information as to the costs incurred by Mr. Park in addressing the same issues. Also, Mr. Park has failed to account for the fact that counsel’s total time at trial included research and preparing written closing submissions. The written submissions were necessary because there was insufficient time scheduled for oral submissions. Both parties’ written submissions were of great assistance to the court.

[4] Mr. Park also says that the rates charged by counsel – in particular, Ms. Hyppolite – are excessive. This submission is predicated on the erroneous statement that Ms. Hyppolite was called to the bar “last year.” As disclosed in the statement of experience, Ms. Hyppolite’s year of call is 2015. I find the rates charged by individual counsel to be reasonable based on their experience.

[5] Rule 76.12.1 does not assist Mr. Park. This was not an action conducted under the simplified procedure rule.

[6] I do, however, agree with Mr. Park that the number of lawyers and students involved in the matter appears to be excessive. There was a change in trial counsel (for both parties) between the first trial dates in December 2021 and the resumption of the trial in July 2022. The involvement of multiple lawyers and students is explained, at least in part, by the fact that the action was commenced in 2015. However, I have little doubt that the involvement of multiple lawyers and students resulted in some duplication of effort. Again, it would have been helpful to have some information from Mr. Park as to the costs he incurred.

[7] This matter was moderately complex and important to both parties. Costco was required to defend Mr. Park’s wrongful dismissal claim and his claims for breach of his human rights and bad faith. Costco was entirely successful. Taking into account the relevant r. 57.01 factors and Boucher, I fix Costco’s costs of the action on a partial indemnity basis in the amount of $120,000, inclusive of disbursements and HST.

Madam Justice Robyn M. Ryan Bell Date: March 22, 2023

COURT FILE NO.: CV-15-64549 DATE: 2023/03/22 ONTARIO SUPERIOR COURT OF JUSTICE RE: Robert Park, Plaintiff AND Costco Wholesale Canada Ltd., Defendant COUNSEL: Joseph W.L. Griffiths for the Plaintiff Natasha Hyppolite for the Defendant ENDORSEMENT Justice Ryan Bell Released: March 22, 2023

Footnotes

[1] R.R.O. 1990, Reg. 194. [2], 71 O.R. (3d) 291 (C.A.).