



COURT OF APPEAL FOR ONTARIO

CITATION: Filice v. Complex Services Inc., 2018 ONCA 763

DATE: 20180919

DOCKET: C62310

Simmons, Roberts and Nordheimer JJ.A.

BETWEEN

Antonio Filice

Plaintiff (Respondent)

and

Complex Services Inc.

Defendant (Appellant)

Frank Cesario, for the appellant

Margaret A. Hoy, for the respondent

Heard: January 19, 2018

On appeal from the judgment of Justice Antonio Skarica of
    the Superior Court of Justice, sitting without a jury, dated May 17, 2016, with
    reasons reported at 2016 ONSC 3256.

COSTS ENDORSEMENT

[1]

On July 10, 2018, this court released its decision allowing the appeal, and
    awarding costs of the appeal to the respondent in the amount of $10,000.  At
    the same time, we invited the parties to make submissions on the issue of the
    appropriate disposition of the costs of the trial.  We have now received and
    reviewed those submissions.

[2]

The appellant submits that each side should bear their own costs of the
    trial because of the limited success enjoyed by the respondent and because of
    the operation of r. 76.13 of the
Rules of Civil Procedure
, R.R.O.
    1990, c. C.43.  Alternatively, the appellant submits that the respondent should
    be awarded the costs of the trial but reduced in amount to $20,000.  The
    respondent submits that he should be entitled to the costs award made by the
    trial judge.

[3]

After the trial judge announced his decision, he immediately requested
    submissions on costs.  After hearing briefly on the subject, the trial judge
    awarded the respondent costs fixed at $82,600.  This amount reflected a slight
    reduction from the amount requested by the respondent, largely as a result of
    the trial judge reducing the hourly rate claimed by counsel for the
    respondent.  At the same time, the trial judge accepted the number of hours
    spent by respondents counsel, indicating that the respondent, as plaintiff,
    had to spend more time than the defendant to prepare the greater number of
    witnesses he called.  The trial judge also found that the matter was complex.

[4]

The trial lasted for seven days.  The respondent called seven witnesses,
    in addition to himself.  The appellant called one witness.  Much of the
    evidence was directed towards the punitive damages claim, not the constructive
    dismissal claim.

[5]

The respondent, while unsuccessful in part on the appeal, was still
    ultimately successful on his constructive dismissal claim.  The proceedings at
    trial, however, were significantly lengthened by the other issues raised by the
    respondent.  The constructive dismissal claim itself would not have required
    the number of witnesses called nor the length that the trial took.

[6]

Another salient fact is that the respondents constructive dismissal
    claim, by itself, was a claim that fell within the simplified procedure under
    the
Rules of Civil Procedure
.  However, the claim was much broader
    than that when the action was originally commenced.  It was reduced in scope as
    a result of a successful summary judgment motion brought by the appellant that
    resulted in all of the claims, other than the constructive dismissal claim and
    a claim for punitive damages, being struck out.  At that point, the respondent
    could have proceeded under the simplified procedure, as permitted by r. 76.02. 
    The respondent did not take that step.

[7]

Rule 76.13 stipulates that a plaintiff shall not recover any costs if
    a claim that properly falls within the simplified procedure is not pursued under
    Rule 76.  While that consequence is mandatory, there is a discretion in the
    court to depart from it if the court considers it reasonable to do so.  We do
    so here.

[8]

As our reasons on the appeal indicate, this was an unusual employment
    law situation because of the gaming registration issue that gave rise to the
    issue of frustration of the contract of employment.  Moreover, it is not clear
    from the record whether, by the time the respondents other claims were struck
    out, the action had progressed to a point where there would have been any
    practical difference to proceeding under the simplified procedure.  We also
    note that there is no indication that, prior to its costs submissions, the appellant
    ever objected to this matter proceeding under the ordinary procedure.  Given
    all of those considerations, we are prepared to excuse the respondents failure
    to proceed under the simplified procedure.

[9]

In the end result, the respondent was successful in his constructive
    dismissal claim.  He is, consequently, entitled to an award of costs for the
    trial.  The amount of the costs must, however, be reduced from the amount
    awarded by the trial judge as a result of the factors that we have set out
    above.

[10]

We
    therefore grant the respondent his costs of the trial.  However, we reduce the
    amount of those costs to $40,000, inclusive of disbursements and HST, payable
    by the appellant.

Janet Simmons J.A.

L.B. Roberts J.A.

I.V.B. Nordheimer J.A.


