Court File and Parties
COURT FILE NO.: CV-22-00682906-0000 DATE: 20230921 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN: LAUREN HOWLETT Plaintiff
- and - THE NORTHERN TRUST COMPANY and DOMENIC SGAMBELLURI Defendants
Counsel: Alexi Wood and Lillianne Cadieux-Shaw for the Plaintiff Rachel Younan for the Defendant
HEARD: In writing
PERELL, J.
REASONS FOR DECISION - COSTS
A. Introduction
[1] This is a costs decision.
[2] On September 3, 2019, Ms. Howlett commenced a wrongful dismissal action against Northern Trust. On June 20, 2022, Ms. Howlett commenced a tort action against Domenic Sgambelluri and Northern Trust that essentially had the same factual footprint.
[3] In April 2023, Northern Trust and Mr. Sgambelluri brought a motion to strike, stay, or dismiss the tort action. She challenged the causes of action pursuant to Rule 21 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 and she also sought a stay pursuant to Rule 21 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 on the grounds that another action was pending in Ontario and that the tort action was an abuse of process.
[4] On August 4, 2023, I dismissed the Defendants’ motion holding that there is no abuse of process or reason to stay or dismiss any of the causes of the action. I ordered the consolidation of the two actions, an outcome supported by Ms. Howlett. [1] The outcome was a way to avoid a multiplicity of proceedings and to regularize the improperly pleaded Statements of Claim.
[5] Ms. Howlett requests costs on a substantial indemnity scale of $54,997.83, all-inclusive. In the alternative, she requests costs on a partial indemnity scale of $36,665.22, all-inclusive.
[6] The Defendants requests costs of $39,549.21, all-inclusive, on a partial indemnity scale. In the alternative, the Defendants request that no costs be awarded. In the further alternative, the Defendants request that any costs awarded to Ms. Howlett be a partial indemnity scale and reflect the divided success on the Motion.
[7] More precisely, in their further alternative, the Defendants submit that Ms. Howlett receive costs of $6,408.51 (representing 25% of the Plaintiff’s claimed partial indemnity costs to account for the divided success on the Motion) or no more than $7,317.88 (having regard to the cost consequences provided for by Rule 49.10(2) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194).
[8] In the circumstances of the immediate case, there is no reason to depart from the normal rules and principles that guide the court’s discretion in awarding costs. In the immediate case, those principles lead to the conclusion that Ms. Howlett should have costs on a partial indemnity basis of $36,665.22, all-inclusive.
[9] There was no divided success. The Defendants completely lost the motion and terms were imposed that benefited both parties; that is not a divided success.
[10] Ms. Howlett’s costs are reasonable and justified. The litigation team consisted of one senior lawyer, one mid-level lawyer, and one summer student. The bulk of the work was conducted by the summer student and the mid-level lawyer. The rates charged are below the standard rates for Toronto and are reasonable. The reasonableness of the costs request is also demonstrated that the Defendants’ costs claim is within range of the amount claimed by Ms. Howlett.
[11] This is not a case for a punitive costs award. Ms. Howlett could have joined her claims in the 2022 tort claims with her claims in her 2019 wrongful dismissal action from the outset. Thus, the Defendants had some basis to assert that a multiplicity of proceedings should have been avoided. And as I noted in my decision, both Ms. Howlett’s 2019 action and her 2022 action were non-compliant with the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, very much contrary to the pleadings rules.
[12] It is unfortunate that the parties could not agree about consolidation, but the Defendants had grounds to bring their motion; however, they lost, and they should be responsible for costs on a partial indemnity basis fixed at $36,665.22, all-inclusive.
Perell, J. Released: September 21, 2023