Court was entitled to consider offers employee did not accept

Prior to employee’s return from maternity leave, employer replaced employee’s flexible start time with more rigid start time. Employee’s action claiming damages for constructive dismissal and violation of Employment Standards Act and Human Rights Code was dismissed. Hearing was held to determine costs. Employee was ordered to pay employer $54,108.36 in costs fixed on partial indemnity basis, inclusive of fees, disbursements, and HST, based on 65 percent as used by parties in their calculations. Court was bound by 2009 appellate decision wherein it was held that, other than in situation involving Rule 49.10 of Rules of Civil Procedure, elevated costs were only to be awarded on clear finding of reprehensible conduct. Employee’s delays in reducing claim and responding to undertakings and frustration of preparation of document brief did not rise to level of “reprehensible” conduct attracting award of costs at enhanced rate. Court was entitled to consider offers employee did not accept although cost ramifications of R. 49 did not apply because employee recovered nothing at trial. Time spent as set out in employer’s bill of costs was reasonable. Amount claimed was relatively modest. Legal issues raised by pleadings were relatively complex.

Peternel v. Custom Granite & Marble Ltd. (2018), 2018 CarswellOnt 13444, 2018 ONSC 4881, Sheard J. (Ont. S.C.J.); additional reasons (2018), 2018 CarswellOnt 9125, 2018 ONSC 3508, Sheard J. (Ont. S.C.J.).