The Ontario Superior Court of Justice has awarded $72,000 in legal costs to the plaintiff after the parties in Ratz-Cheung v. BMO Nesbitt Burns Inc. were unable to agree on an amount.
That’s far less than the more than $195,000 she was seeking from BMO Nesbitt Burns, though, with the court slashing it down significantly — noting both sides had valid victories and losses throughout the trial.
Series of settlement offers
On Jan. 8, 2024, the court delivered a decision awarding the plaintiff $240,091 in damages with additional prejudgment interest accruing since Feb. 20, 2020.
The case revolved around a series of settlement offers that highlighted the protracted negotiations between the parties. Initially, the defendant — BMO Nesbitt Burns — offered $240,000 plus prejudgment interest and costs on November 19, 2019.
Subsequent offers from the plaintiff soared to $1,250,000 and later to $950,000, reflecting escalating stakes as the trial loomed. The defendant’s final offer was a time-sensitive $350,000 proposal made just days before the court’s decision.
No agreement on costs
Despite these offers, the parties failed to reach an agreement on costs, prompting further court deliberation. The plaintiff sought three-quarters of her partial indemnity costs — amounting to $195,483.46 — justifying her request with her partial success at trial and arguing that the defendant’s approach was inflexible and overly adversarial.
She emphasized her legal victories, notably on crucial issues like the 24-month notice period and entitlements related to her investment advisor’s book of business, despite failing to secure damages for its loss.
On the other side, BMO Nesbitt Burns argued that its initial offer was financially superior to the final judgment when considering the accrued prejudgment interest from an earlier date, which would have avoided additional litigation costs. It contended that the plaintiff would have been economically better off had she accepted its 2019 proposal.
Divided success
The court, in evaluating the offers and positions, noted the requirement for a mutually acceptable release in the defendant’s first offer potentially introduced uncertainties that could complicate its acceptance. Citing previous decisions, the judge ruled that such conditions did not qualify the offer under Rule 49.10, which governs the cost consequences following settlement offers.
The court also recognized the divided success in the case, as both parties had valid victories and losses throughout the trial. Ultimately, the court awarded the plaintiff 30 per cent of her claimed costs on a partial indemnity basis, amounting to $72,000, a significant reduction from her original request.
For more information, see Ratz-Cheung v. BMO Nesbitt Burns Inc., 2024 ONSC 2499 (CanLII).
