Horn v. Ikon Office Solutions Inc., 2003 BCSC 474

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Horn v. Ikon Office Solutions Inc., 2003 BCSC 474 Date: 20030331 Docket: 01 2406 Registry: Victoria Between: Vance Horn Plaintiff And: Ikon Office Solutions Inc. Defendant Before: The Honourable Mr. Justice R. D. Wilson Ruling on the Issue of Costs Counsel for the Plaintiff: M. S. Frost Counsel for the Defendant: K. G. Thorne Written Submissions Concluded: 17 February 2003 I. [ 1 ] This is a ruling on the issue of costs. It follows a determination, by

summary trial, of four issues raised by the parties in this proceeding. The material facts for the purposes of this ruling are as follows. II. [ 2 ] On 1 March 2001, Mr. Horn was advised by Ikon Office Solutions Inc. that his employment contract with that company was terminated. That termination was effective that day. [ 3 ] Mr. Horn caused this proceeding to be initiated on 28 May 2001. In his statement of claim, Mr. Horn alleged, among other things: 4.

At the time of the termination of his employment the Plaintiff was provided with notice of the termination of his employment that was unreasonable, and thereby the Plaintiff says that he was wrongfully dismissed from his employment. ... 5. Because of the wrongful termination of his employment, the Plaintiff has suffered damages by virtue of lost benefits and loss of pension rights ... [ 4 ] In his prayer for relief, Mr. Horn claimed: (

a) Damages pursuant to the wrongful termination of his employment and pursuant to the Defendants [sic] having failed to provide the

Plaintiff with adequate or proper notice; (

b) Special damages, including the value of lost benefits; (

c) Interest; (

d) Costs; (

e) Such other and further relief as to this Honourable Court may seem meet. [ 5 ] Ikon Office Solutions filed its statement of defence on 18 June 2001. Among other things, Ikon pleaded: 7.

On the Termination Date, the Defendant offered a severance package to the Plaintiff that met or exceeded what the Plaintiff would have been entitled to had the Defendant provided the Plaintiff with working notice in advance of termination. [ 6 ] As well, Ikon pleaded: 13. ... that if any damages have in fact been suffered, the Plaintiff has failed to mitigate or avoid such losses by taking reasonable steps to secure alternate employment. [ 7 ] By a motion filed 6 November 2002, Mr. Horn sought an order that: 1. The Plaintiff be granted Judgment in a sum that to this Honourable Court may seem meet; 2.

Interest; and 3. Costs. [ 8 ] On the return of his application, on 12 November 2002, Mr. Horn contended that a reasonable notice, in all of the circumstances of this case, was 20 months. [ 9 ] In response, Ikon contended that in the ordinary course of events, 12 months would be a reasonable notice period; however, due to Mr. Horn's failure to mitigate his loss, the notice period should be reduced to 6 months. [ 10 ] The other two issues in dispute concerned Mr. Horn's vacation entitlement and his car allowance. [ 11 ] Mr. Horn argued that his accrued vacation entitlement was 12 weeks; Ikon said it was 6 weeks.

I found that 6 weeks' accrued vacation was Mr. Horn's entitlement. [ 12 ] At the hearing, Mr. Horn conceded that he had no further entitlement to a car allowance. [ 13 ] On the two main issues, I concluded that a reasonable notice period, in all of the circumstances of Mr. Horn's case, was 12 months. I further found that the 12-month notice period was not subject to a reduction by reason of an unreasonable failure on the part of Mr. Horn to mitigate his loss. III. [ 14 ] Mr. Horn says that his application for an order for costs has a simple basis. He says that although Ikon did pay him over a 12-

month period, it did not pay him the amount to which he was entitled under a 12-month notice period, or payment in lieu thereof. As well, says Mr. Horn, Ikon had not paid the accrued vacation pay in any amount. Therefore, it was necessary for Mr. Horn to take these proceedings in order to recover what was owing to him by Ikon. He has succeeded in recovering a judgment, and accordingly, is entitled to his costs. [ 15 ] Ikon's first position is that there has been divided success, and accordingly, there ought to be no costs payable by or to either party.

Alternatively, if there is to be an order for costs, then each party should be entitled to the costs on the issue upon which they were successful, and the amounts set off. IV. [ 16 ] It is common ground that the rule which must govern the disposition of this issue of costs is Rule 57(9), the operative words of which are: ... costs of and incidental to a proceeding shall follow the event unless the court otherwise orders. [ 17 ] I am not persuaded by Mr. Horn that his argument is sound. I take the word "event", in subrule (9), to mean, the result, or consequence, of the proceeding. Mr.

Horn's "proceeding" was not a claim for the balance owing on his employment contract. The "proceeding" was one for damages for breach of contract. Mr. Horn's measure of those damages was based upon a calculation of 20 months' notice, or payment in lieu thereof. [ 18 ] As well, as it developed, the "proceeding" assumed the additional issues of mitigation, accrued holiday benefits and car allowance. [ 19 ] The result, or more accurately, the results, of the proceeding is, or are, as argued by Ikon, divided. [ 20 ] In support of its primary position, Ikon has relied upon Meneghetti v. Meneghetti [1] and Louis v.

Esslinger [2] , both of which are authority for the proposition that, in the event of divided success, an order that no costs be paid by or to either party, is an "appropriate" order. I adopt that proposition and make the order that no costs are payable by or to either party in this proceeding, including the application for this ruling on the issue of costs. “R.D. Wilson, J.” The Honourable Mr. Justice R.D. Wilson