Reasons for Judgment on Costs Thrown Away
Court File No.: CV-19-28370
Date: 2025-07-18
Ontario Superior Court of Justice
Between:
Gurupdesh Pandher, Plaintiff
– and –
University of Windsor, Alan Wildeman, Douglas Kneale and Mitchell Fields, Defendants
Appearances:
Jordan Afolabi, counsel, for the Plaintiff
Albert Formosa and Phil Wallner, counsel, for the Defendants
Heard: November 25 and 28, 2024 by videoconference
Reasons for Judgment released January 20, 2025, cited as 2025 ONSC 168; written argument completed June 24, 2025
Released: July 18, 2025
Heeney J.:
Introduction
[1] In my reasons for judgment released January 20, 2025, I ruled that the plaintiff was, in principle, permitted to amend his Statement of Claim so as to add the Human Rights Code (the “Code”) claims asserted in three separate applications before the Human Rights Tribunal to the present civil action. In so ruling, I concluded that, while the defendants would suffer prejudice from those amendments, that prejudice could be compensated for by an award of costs. Thus, I ruled that the defendants were entitled to an award of costs thrown away as a result of the amendments. Counsel for the defendants have filed written submissions as to the quantum of costs that should be awarded, and the plaintiff has filed responding submissions.
[2] The actual amendment of the Statement of Claim is another issue that remains outstanding. The draft that was before me at the hearing of this matter was defective in many ways, and counsel for the plaintiff was directed to correct those errors. The resulting draft is, in the view of counsel for the defendants, still defective in a variety of ways. Those issues will be dealt with in separate reasons. These reasons will deal only with the issue of costs thrown away.
Scale of Costs
[3] Before considering the specific items of costs one by one, certain preliminary matters have been raised. The first is the scale of costs.
[4] The defendant argues that costs thrown away are typically awarded on a substantial or full recovery basis: see Nelson v. Chadwick, 2019 ONSC 4544 at para. 38.
[5] The plaintiff argues that solicitor-client costs are only awarded in rare circumstances where a party’s conduct is reprehensible: Craven v. Osidacz, 2017 ONSC 4396, at paras. 11–12; Buccilli v. Pillitteri, 2013 ONSC 1537, at para. 3.
[6] While I agree with the plaintiff that this is the rule with regard to an award of costs in general, the cases cited were not dealing with costs thrown away. There is considerable authority supporting the position of the defendants that costs thrown away are normally awarded on a substantial recovery basis.
[7] In Caldwell v. Caldwell, 2015 ONSC 7715, at paras. 11–13, Quinlan J. cites a number of authorities standing for this very proposition:
Costs thrown away are generally payable on a full recovery basis: Pittiglio, at para. 5; Milone v. Delorme, 2010 ONSC 4162, para. 12; Straume v. Battarbee Estate, 2001 CarswellOnt 6225 (Ont. S.C.J.), at paras. 2-3; Middleton, at para. 5. This is because the purpose of such an award of costs is to “indemnify a party for the wasted time for trial preparation arising from the adjournment”: Pittiglio, at para. 6; Legacy Leather International Inc. v. Ward, at para. 9. Such an award is not to punish the party seeking the adjournment, but to indemnify the other party for the wasted time for trial preparation arising from the adjournment: Incandescent Revolution Manufacturing Co. v. Gerling Global General Insurance Co., at para. 12; Pittiglio, at para. 6, citing Kalkanis v. Kalkanis, 2014 ONSC 205, at para. 3.
The court must determine what costs have actually been wasted. This is not an easy task: some witnesses will require little further preparation while some will require much: Straume, at para. 4. It has been described as an “intuitive”, rather than a scientific, process: Pittiglio, at para. 17.
An award of costs thrown away can be revisited at the end of the trial to determine if further costs should be awarded: Straume, at para. 37; Middleton, at para. 23; Laudon v. Roberts, at para. 20.
[8] I accept that this is the correct approach when awarding costs thrown away, and will assess costs on a substantial indemnity basis.
Is This Assessment of Costs Premature
[9] The next preliminary matter is the submission of the plaintiff that an assessment of costs thrown away is premature, as there remain three non-concluded matters that factor heavily into an accurate assessment of those costs. Specifically, those matters are:
- The outstanding motion by the plaintiff for production of documents;
- The ongoing parallel labour proceedings between the University and the plaintiff; and,
- The undetermined remaining pre-trial process that may unfold.
[10] As to the first point, the plaintiff brought a motion at the same time as his motion for leave to amend, seeking production of documents relating to a workplace investigation that was conducted by Melanie Reist, at the request of the University. Her report and notes contain comments made by members of the faculty that the plaintiff characterized in his factum as “racially disparaging comments”. He learned about these documents between 2019 and 2021 during the course of his ongoing grievance proceedings.
[11] He did not initially seek formal production of these documents in this civil proceeding. As he explains in para. 8(b) of his factum, he “would have had no reason to seek production of the documents in this civil matter at the time he discovered their existence, as his original intent was to pursue their production in the HRTO proceedings”. In the meantime, he proceeded through discoveries in the civil action, and set the matter down for trial, without ever seeking production of these documents in this proceeding. It was not until after the HRTO dismissed his claims in May, 2024, that he sought production in this action. Again, as he states in the same paragraph of his factum, “given that Dr. Pandher originally considered the HRTO proceedings to be separate and distinct from his ongoing civil claim … it was the dismissal of those claims on the basis that they alleged substantially the same facts as pleaded in the original civil claim, which prompted his pursuit of their production in July 2024”.
[12] He now argues that the defendants should have proactively disclosed these documents in the civil action from the outset. He seeks a determination of the relevance of these documents before costs thrown away are assessed, because if they are relevant to the civil action, he argues that the defendants will suffer no prejudice, because they would be in virtually the same position with respect to costs as they are now.
[13] I reject this argument. First and foremost, the University did not withhold or suppress these documents, they freely disclosed them in the labour grievances, so the plaintiff has known about them for years. Due to the implied undertaking rule, the plaintiff was of the view (incorrectly, in my opinion) that they could not be used in this proceeding. However, as the plaintiff explains in his factum, he did not seek formal production of them in this proceeding precisely because he took the position that they were not relevant to the civil proceedings, and were only relevant to the HRTO proceedings. Thus, he can hardly claim that these documents were relevant to the civil action, as originally pleaded, when he, himself, took the opposite position throughout. It follows that his submission that the defendants should have previously produced them in the civil action has no merit.
[14] Given that I have granted leave to plead the HRTO claims in this action, these documents may, and likely will, now become relevant to this civil action. The motion for production has been adjourned because, as I have ruled, relevance is determined by the pleadings, and this cannot be determined until the final form of the Fresh As Amended Statement of Claim (“FAASOC”) is in place.
[15] I see no reason to delay the assessment of costs thrown away pending the results of the production motion. Once any defects in the FAASOC are eliminated, the defendants may well consent to production of some, or all, of the documents sought. If the parties cannot agree, they can submit written argument on that motion. The motion itself, and the eventual results of that motion, are irrelevant to the matter at hand.
[16] The second reason the plaintiff argues that this assessment is premature relates to the ongoing parallel labour proceedings between the University and the plaintiff. He argues that the potential usefulness of the defendants’ work in these parallel proceedings must be factored into the question of costs thrown away. He goes on, at para. 20 of his written submissions on costs, to argue the following:
The grievances and labour proceedings remain ongoing and are reasonably expected to involve virtually every single issue, defendant, and witness that are relevant to these ongoing proceedings. If costs thrown-away are to be assessed on the basis that regathering information from and reconsulting with the Defendants and witnesses will render the initial information gathering and consultations wasted, consideration should be given to the fact that the Defendants are being represented by the same counsel in both the labour proceedings and this ongoing civil litigation and such consultations and regathering of information will have to be conducted regardless.
[17] This argument can quickly be disposed of. First, the labour proceedings are completely separate from the civil proceedings, and are between the plaintiff’s union and the University, not between the plaintiff personally and the University and the other named defendants. Second, and most importantly, while WeirFoulds LLP represents the University in both the civil action and the labour proceedings, there are different sets of lawyers acting for the University on each matter. Any suggestion of cost savings arising from the overlap in representation is entirely speculative.
[18] Furthermore, the labour proceedings involve different issues of fact and law. I accept the submission of the defendants that if the legal issues arising from the investigator’s report are about the plaintiff’s employment as a unionized employee, then this court would have no jurisdiction to deal with them. Any employment-related dispute must be dealt with by way of arbitration and not by resort to civil action in the courts: see Nelson v. Her Majesty the Queen in Right of Ontario, 2020 ONSC 2147, citing Weber v. Ontario Hydro.
[19] The third and final point relating to the plaintiff’s argument that it is premature to assess the defendants’ costs thrown away, relates to “undetermined remaining pre-trial process that may unfold”. Specifically, this relates to the suggestion that the plaintiff has yet to elect whether to conduct a re-examination of the defendants, and it is “likely” that they will deem it unnecessary to do so. That will not, of course, eliminate the need of the defendants to prepare for, and conduct, further discovery of the plaintiff. It will only impact upon the need for counsel to prepare the defendants for, and attend at, the further discovery of the defendants.
[20] As noted in Caldwell, above, an award of costs thrown away can be revisited at the end of the trial. The contingency of whether the plaintiff will or will not elect to conduct further examinations can easily be dealt with through that means.
Assessment of Costs
[21] I will now consider the defendants’ claim for costs, under the various categories set out in the defendants’ written submissions. The methodology used by counsel for the defendants set out the costs actually incurred in each category, and then claimed the percentage of those costs that were wasted and will have to be incurred again.
[22] As noted in Caldwell, above, this is not an easy task, and has been described as an “intuitive”, rather than a scientific, process. I am satisfied that the approach taken by the defendants is appropriate.
[23] I should state at the outset that many different lawyers contributed time to this file, and their hourly rates are set out in the Costs Outline. Without reviewing each of them specifically, I can say that the hourly rates, although high, are within the reasonable range for counsel from a major firm, working on a case where the plaintiff is claiming damages that were originally in the amount of $4.5 million, and which have now escalated to $5.25 million with the addition of the Code-related claims.
File Intake and Statement of Claim
[24] This first item includes time spent in file review, reviewing the Statement of Claim, discussions with clients and legal research. Substantial indemnity costs for this work total $8,772, based on 25 hours of billable time. The defendants claim that 60% of those costs have been thrown away, because that work will have to be done again.
[25] To be specific, many of the meetings, discussions and review of documents that were conducted in order to prepare the Statement of Defence will have to be repeated, in view of the “completely new gloss” given to the facts by reason of the amendments. I agree with the defendants’ submissions that much of this work will need to be redone because, as the plaintiff has readily admitted, this civil proceeding was strategically prepared not to include any reference to human rights claims, and the defence was conducted on that basis. While many of the discussions and documents may have included information that was relevant to human rights claims, that information was expressly not relevant to this civil action as originally pleaded.
[26] Furthermore, the new pleadings assert entirely new grounds for relief, including misfeasance in public office, unlawful means and conspiracy, which will require a considerable amount of additional legal research, and contain factual elements that will require further exploration through discussions with the parties, witnesses and the review of documents.
[27] However, I am of the view that 60% is too high an estimate of the amount of time that will have to be expended again as a result of the amendments. One cannot lose sight of the fact that the defendants have repeatedly taken the position that the human rights claims arise out of the substantially the same factual situation as the civil claim as originally pleaded. While the addition of the human rights claims to this proceeding do add an entirely new gloss to those facts, that gloss relates more to the fine details of the various factual components that make up the plaintiff’s case, as opposed to plowing entirely new ground.
[28] Recognizing that this is an intuitive exercise as opposed to one that can be accomplished with scientific precision, I am of the view that a fair and appropriate measure of the costs thrown away on this aspect of counsels’ work on this case is 40%. Thus, $3,509 will be allowed under this heading.
Statement of Defence
[29] This item includes reviewing the Statement of Claim, discussions with clients, preparation and service of the Fresh As Amended Statement of Defence. The defendants argue that they will have to re-write their pleadings in order to respond to the newly-pleaded facts and legal theories that are in the FAASOC. These would have been dealt with in the original pleading had these facts and theories not been deliberately excluded from the original Statement of Claim.
[30] The defendants’ substantial indemnity cost for this work, based on 42.5 hours of billable time, is $13,250. They argue that 80% of those costs have been thrown away, and claim $10,600.
[31] I have several concerns with this claim. First, some of this work would have already been included in the first item (such as “reviewing the Statement of Claim”), and the overall time expended to get to this state of the action is excessive. The combined substantial indemnity costs for the first two items, before applying the appropriate percentage, is $22,022. That is a shockingly disproportionate amount of legal costs to be expended in taking the file only to the stage of the filing of the Statement of Defence.
[32] Furthermore, the figure of 80% is also excessive. While a brand-new pleading will have to be prepared, it will, of necessity, include much of the old pleading, since the same basic facts must be responded to.
[33] I am prepared to allow a claim of $5,000 under this heading, representing $10,000 in substantial indemnity costs, of which 50% has been thrown away.
Affidavit of Documents
[34] This item includes receipt and review of the clients’ documents, communications to and from clients, and preparation and service of the Affidavits of Documents of Mitchell Fields, Douglas Kneale, Alan Wildeman and the University of Windsor. It also includes receipt and review of the plaintiff’s Affidavit of Documents.
[35] The defendants will now have to re-review many documents and records for relevancy, as determined by the amended pleadings. They argue that many documents and records which were initially determined not to be relevant may now be determined to be relevant to the new factual allegations and legal theories advanced in the amended pleading. This re-review is entirely a wasted cost, as is the preparation of the multiple new affidavits.
[36] The substantial indemnity costs incurred under this category is $21,700, based on 55 hours of time spent. The claim for costs thrown away under this category is 40% of those costs, in the amount of $8,680.
[37] This is a very document-heavy case. As an illustration, the plaintiff’s Notice of Motion lists 50 different documents or sets of documents that the plaintiff is seeking production of, over and above the many documents that have already been provided by the defendants.
[38] I am satisfied that the defendants’ claim with respect to this item is reasonable, and will be allowed at $8,680.
Examinations for Discoveries
[39] This item includes communications to and from counsel and to and from client; file review; scheduling and attendance at discoveries of the parties over 3 separate days; and receipt and review of transcripts.
[40] The defendants incurred substantial indemnity costs totalling $73,000, based on 237.5 hours of work in total. They claim 40% of that amount as costs thrown away, in the amount of $29,200.
[41] In my preliminary endorsement of June 12, 2025, I requested confirmation and clarification regarding the defendants’ written submissions, because they appeared to be claiming the full amount expended in various tasks, as opposed to the percentage of those costs that are alleged to have been wasted. In so doing, I commented that an expenditure of 292.5 hours of counsel time on documentary discovery and examinations for discovery, at a total substantial indemnity cost of $94,700, would be “patently absurd”. I remain of that view. Such a figure would more appropriately represent the legal fees expended on a typical civil case of moderate complexity from the commencement of the case, through discoveries, up to and including the conclusion of a five-day trial.
[42] With respect to examinations for discovery alone, counsel expended 237.5 hours in preparation and attendance. While five parties were discovered, which occupied 3 days, that would only account for 21 hours, at most, of counsel time. That means that roughly 216 hours of preparation time were docketed. I do agree that the factual allegations cover a wide swath of time, dating back to 2012, and that significant preparation would be required, given the multitude of documents involved, particularly the documents produced by the University, which spanned four volumes. However, this claim is still wildly excessive. It amounts to one lawyer working for more than six weeks, at 35 hours per week, doing nothing but preparing for these discoveries. That is disproportionate, unreasonable and unacceptable.
[43] I must also take account of the plaintiff’s statement in his written argument that he has yet to elect whether to conduct a re-examination of the defendants, and “it is likely that the Plaintiff will not deem it necessary to do so”. If they do not do so, no costs will have been wasted in that regard, since the original discovery of the defendants will not be duplicated. I have already noted that an award of costs thrown away may be revisited at the conclusion of the trial, and that is a useful way to take account of this contingency.
[44] Given that the defendants will, without doubt, choose to re-examine the plaintiff, as they are entitled to do, they are entitled to an award of costs thrown away in that regard. I fix that amount at $10,000. This award is made on the assumption that the defendants will not be re-examined by the plaintiff. If they are, in fact, re-examined, the defendants will be entitled to an award of costs thrown away for preparation and attendance on those discoveries, in an amount to be fixed by the trial judge, in any event of the cause.
Mediation and Pre-trial Procedures
[45] This final item includes the following work, as described in the defendants’ written argument:
Receipt and review of Notice to Mediate from the Court; communication from the Court; communication to and from counsel regarding scheduling of mediation; communication to and from clients; file review and preparation, service and filing of Mediation Brief; preparation for and attendance at the mediation on June 8, 2023.
Communication to and from counsel and the court regarding scheduling the pre-trial; receipt and review of the endorsement of Justice Munro scheduling the pre-trial for July 15, 2024; attendance at case conference on July 4, 2024 regarding Plaintiff’s request to adjourn the pre-trial; receipt and review of the endorsement of Justice Bezaire cancelling the pre-trial and ordering that the matter be placed on October 17, 2024 Assignment Court List to schedule a trial date and pre-trial conference; communication to and from the court by both parties with respect to the Plaintiff’s request that Justice Bezaire recuse herself from the matter; attendance before Justice Bezaire on July 8, 2024; receipt and review of Justice Bezaire’s endorsement; communication to and from counsel and the court trial scheduling; attendance at trial management conference on September 9, 2024.
[46] Substantial indemnity costs of $25,360 were incurred under this item, based upon 53.1 hours of billable time. The defendants claim reimbursement at 100%, on the basis that all of these costs were thrown away.
[47] I agree that all of these costs were, indeed, wasted and thrown away. The mediation was a waste of time, since the case is now entirely different, and mediation will have to be conducted all over again. All of the conferences and attendances to schedule a trial date and pre-trial date, which were incurred because the plaintiff had set the matter down for trial and therefore represented to the court that he was ready to proceed to trial, were also a complete waste of time, and will have to be repeated when this case finally is ready to be listed and scheduled for trial.
[48] Costs of $25,360 are allowed under this item.
[49] The total of the above amounts is $52,549. Costs thrown away are awarded to the defendants, fixed in that amount, payable within 120 days.
[50] I am not awarding any further costs with respect to the costs incurred in arguing this aspect of the motion, since the substantial reductions I have made in the claims made by the defendants mean that success has, in effect, been divided.
Thomas Heeney
Released: July 18, 2025