Court File and Parties

Court File No.: CV-23-0098-00 Date: 2024-07-08 Ontario Superior Court of Justice

Between: Karen Dufault, Plaintiff And: The Corporation of the Township of Ignace, Defendant

Counsel: Mr. J. Pinkus, for the Plaintiff Mr. J. Lester, for the Defendant

Heard: Via Zoom July 3, 2024

Before: Madam Justice H. M. Pierce

Reasons on Costs of Summary Judgment Motion

[1] The plaintiff seeks her costs of $25,358.33 on a substantial indemnity basis, having succeeded in obtaining a judgment of $157,071.57 on a summary judgment motion.

[2] The plaintiff made a Rule 49 Offer to Settle at the outset of the proceeding for $120,000 and therefore claims substantial indemnity costs for the balance of the proceeding because her offer was ultimately less than the amount of the judgment, as the rule provides.

[3] The defendant made no offer to settle and refused an offer to mediate made by the plaintiff, a factor that the court can consider when determining costs: Canfield v. Brockville Ontario Speedway, 2018 ONSC 3288, paras 41 – 57.

[4] In view of the offer made, there is no doubt that the plaintiff is entitled to substantial indemnity costs. The court must determine what is a reasonable amount given what was in issue and having regard for the reasonable expectations of the opposing party.

[5] From a procedural perspective, this was a simple matter, requiring an interpretation of a clause in the employment contract. There were no factual disputes, no responding material filed, and no cross-examinations conducted. Both sides estimated 2 hours in argument.

[6] The plaintiff’s bill of costs showed 57 hours for preparation, whereas the defendant’s showed a mere 17 hours.

[7] I do not find it unusual that the moving party should expend more time to advance the motion than the defendant to respond. Nevertheless, an unnecessary case conference was required when the plaintiff would not agree to an adjournment of the motion. The plaintiff claimed 2.8 hours for that attendance, the defendant 2 hours.

[8] The defendant claims that the plaintiff’s time spent, and hourly rate are excessive. Mr. Pinkus’ substantial indemnity rate is $400 per hour, for an eight-year call. By contrast, Mr. Lester’s substantial indemnity rate is $297 per hour for a ten-year call. He claims substantial indemnity costs of $5,359.50 including clerk time.

[9] While the plaintiff’s counsel may charge his own client as he sees fit, the obligation of the court is to ensure the scale of costs is fair and reasonable so that the courts remain accessible to those who bring their claims for adjudication. To this end, the quantum of costs must be reasonable and in proportion to what was in issue.

[10] In my view, Mr. Pinkus’ bill is excessive given what was in issue. The defendant shall pay the plaintiff’s costs fixed at $6,500 inclusive of HST and disbursements, payable within thirty days.

“originally signed by”

The Hon. Madam Justice H. M. Pierce

Released: July 8, 2024