Brahma v HR Services / Cost Assessment

In Brahma v HR Services, the plaintiff Sujoy Brahman was a former employee of the defendant, HR Services Inc, a branch of the global restaurant, hotel and casino chain Hard Rock Café International (USA). In April 2018, the plaintiff was hired as vice-president of non-gaming operations at the Rideau Carleton Casino in Gloucester, Ontario. The plaintiff’s employment was terminated in September 2019, and he commenced legal proceedings in Ottawa in December of that year, seeking damages for wrongful dismissal and breach of contract. 

The plaintiff is a resident of the United States and commenced a separate legal proceeding against Hard Rock Café International in a Circuit Court in Broward County, Florida. The complaint was brought for violations of the private-sector whistleblower legislation and tortious interference. After denying the defendant’s motion to dismiss the claim, the judge of the Florida court ordered that his ruling would be subject to the plaintiff dismissing his separate lawsuit in Canada. Counsels for both the parties began negotiating how the Canadian action would be discontinued, the amount that would be paid concerning legal costs, and who would pay for the costs of the Ontario discontinuance motion. During negotiations, the defendant made a settlement offer where the defendant would consent to a dismissal of the Canadian action if the plaintiff paid the defendant’s costs in the amount of $15,000. The plaintiff objected and instead offered to pay $6,500 in legal costs, while himself receiving $10,000 for the costs of the discontinuance motion, on a substantial indemnity basis. The defendant refused, withdrew its initial settlement offer, and argued that it should be awarded $56,241 for the motion of discontinuance and its legal costs by the Ontario court.

Justice Smith looked at two issues: (1) the amount of costs that should be awarded to the defendant for the Canadian action, and (2) whether either the plaintiff or defendant should be awarded costs for the motion. With regards to the first issue, Justice Smith determined that a quantum of $7,500, all-inclusive, was a fair amount. He found that the legal fees charged by the defendant were too high if the geographic location is considered. He indicated that legal fees by counsel in Toronto tend to be excessive and unreasonable, given that, for instance, even experienced counsel practicing in Ottawa charge less than the hourly rate of Toronto articling students.

With regards to the second issue, Justice Smith determined that neither the plaintiff nor defendant should be awarded costs for the motion: he argued that these costs could have been lower if both parties had increased their communication and advanced more reasonable positions.