Berry v. Scotia Capital Inc., (2010) 271 O.A.C. 229 (DC)

• Judge: Then, R.S.J., Matlow and Swinton, JJ.
• Court: Superior Court of Justice of Ontario (Canada)
• Case Date: December 06, 2010
• Jurisdiction: Ontario
• Citations: (2010), 271 O.A.C. 229 (DC);2010 ONSC 5489

Berry v. Scotia Capital Inc. (2010), 271 O.A.C. 229 (DC)

MLB headnote and full text

Temp. Cite: [2010] O.A.C. TBEd. DE.021

David M. Berry (plaintiff/respondent on appeal) v. Scotia Capital Inc. (defendant/appellant)

(File No. 391/09; 2010 ONSC 5489)

Indexed As: Berry v. Scotia Capital Inc.

Court of Ontario

Superior Court of Justice

Divisional Court

Then, R.S.J., Matlow and Swinton, JJ.

December 6, 2010.

Summary:

The plaintiff sued his employer for wrongful dismissal. The employer moved for summary judgment to dismiss all claims. Subsequently, a portion of the motion was abandoned (claim for wrongful dismissal) and the employer sought summary judgment to dismiss only claims for constructive dismissal and loss of competitive advantage. The motions judge dismissed the motion for partial summary judgment. The motions judge awarded the plaintiff total costs of $345,733.53 (plus $14,578.70 in disbursements), comprised of: (1) costs on a substantial indemnity basis for the abandoned portion of the summary judgment motion ($142,285); (2) costs on a partial indemnity basis for the portion of the motion that was proceeded with ($100,964); and (3) $102,484.17 respecting cross-examinations. The employer obtained leave to appeal the cost award on the basis that "it was open to very serious debate whether the motions judge exercised her discretion in accordance with the overriding principle of fairness and reasonableness, given the lack of particulars in the reasons".

The Ontario Divisional Court allowed the appeal and reduced costs to $145,000, inclusive of HST and disbursements, for the abandoned portion of the summary judgment motion and heard portions of the summary judgment motion. Costs respecting the cross-examinations were reserved to the trial judge.

Practice - Topic 5725

Judgments and orders - Summary judgments - Costs - The plaintiff sued his employer for wrongful dismissal - The employer moved for summary judgment to dismiss all claims, but abandoned that part of the motion claiming wrongful dismissal, limiting the motion to the claims for constructive dismissal and loss of competitive advantage - The motion was dismissed - The motions judge awarded the plaintiff total costs of $345,733.53 (plus $14,578.70 in disbursements), comprised of: (1) costs on a substantial indemnity basis for the abandoned portion of the motion ($142,285); (2) costs on a partial indemnity basis for the proceeded with portion of the motion ($100,964); and (3) $102,484.17 respecting cross-examinations - The employer obtained leave to appeal the cost award on the basis that "it was open to very serious debate whether the motions judge exercised her discretion in accordance with the overriding principle of fairness and reasonableness, given the lack of particulars in the reasons" - The Ontario Divisional Court allowed the appeal and reduced costs to $145,000, inclusive of HST and disbursements, for the abandoned portion of the summary judgment motion and heard portions of the summary judgment - Costs respecting the cross-examinations were reserved to the trial judge - The judge erred in basically rubber stamping the amounts claimed in the plaintiff's costs outline without critically examining the reasonableness of the quantum claimed - Although the judge's endorsement stated that she considered all of the relevant factors, there was no indication in the reasons as to how she did so - The judge disagreed with the employer's argument that the hours and rates charged were excessive, but provided no reasons for her decision - The court stated that "when the overall reasonableness of this award of costs is considered on an objective basis, the amount awarded is clearly excessive, even for a hard fought and important motion like this one. An award of this type will have a chilling effect on litigation that must be taken into account".

Practice - Topic 6924

Costs - General principles - Duty to provide reasons for cost award - [See Practice - Topic 5725 ].

Practice - Topic 7020.1

Costs - Party and party costs - Entitlement to party and party costs - Successful party - Quantum - [See Practice - Topic 5725 ],

Cases Noticed:

Hamilton v. Open Window Bakery Ltd. et al., [2004] 1 S.C.R. 303; 316 N.R. 265; 184 O.A.C. 209, refd to. [para. 16].

Boucher et al. v. Public Accountants Council (Ont.) et al. (2004), 188 O.A.C. 201; 71 O.R.(3d) 291 (C.A.), refd to. [para. 17].

Andersen et al. v. St. Jude Medical Inc. et al. (2006), 208 O.A.C. 10 (Div. Ct.), refd to. [para. 19].

Fresco v. Canadian Imperial Bank of Commerce (2010), 267 O.A.C. 317; 2010 ONSC 4724 (Div. Ct.), dist. [para. 26].

McNaughton Automotive Ltd. v. Co-operators General Insurance Co. (2009), 255 O.A.C. 362 (C.A.), refd to. [para. 27].

Rizmi Holdings Ltd. et al. v. Vaughan (City) (2010), 260 O.A.C. 138 (Div. Ct.), refd to. [para. 33].

Factor Gas Liquids Inc. v. Jean et al., [2008] O.T.C. Uned. E20 (Sup. Ct.), dist. [para. 34].

Ledore Investments Ltd. v. Murray et al., [2002] O.T.C. 188; 58 O.R.(3d) 627 (Sup. Ct.), refd to. [para. 42].

Frumcor Investments Ltd. v. Dorwal Ltd., [2008] O.J. No. 1817 (Sup. Ct.), refd to. [para. 44].

Toronto-Dominion Bank v. Entretel Inc. et al., [2008] O.T.C. Uned. 543 (Sup. Ct.), refd to. [para. 44].

North American Steel Equipment Co. v. Rona Inc. et al., [2008] O.T.C. Uned. J57 (Sup. Ct.), refd to. [para. 44].

DMR Truck Inc. v. Jaguar Canada, [2002] O.T.C. Uned. 455 (Sup. Ct.), refd to. [para. 44].

Counsel:

Robert Colson and Kimberly Boara Alexander, for the plaintiff/respondent on appeal;

Sheila Block, for the defendant/appellant.

This appeal was heard on September 21, 2010, at Toronto, Ontario, before Then, R.S.J., Matlow and Swinton, JJ., of the Ontario Divisional Court.

On December 6, 2010, Swinton, J., delivered the following judgment for the Court.