J. McAleer

The applicant, Tibbett & Britten Group Canada Inc., sought costs on a full indemnity basis after being successful in a prior application.

The court determined that the original agreement providing for full indemnity costs was spent and a new agreement, lacking such a provision, governed.

Consequently, the applicant was awarded costs on a partial indemnity basis.

The court also denied the applicant's claim for costs related to an FSCO investigation, characterizing them as potential damages rather than costs of the proceeding.

Additionally, certain disbursements for file review and irrelevant legal research were disallowed.

The respondent's request for costs for having to respond to the applicant's costs submissions was denied as there were legitimate issues to be determined.

The applicant sought a declaration that the respondent was responsible for funding a deficit that arose on the wind-up of a pension plan for employees at certain warehouses.

The warehouses were previously operated by the applicant's predecessor under a warehousing and transportation agreement with the respondent's predecessor.

The court found that the respondent was contractually liable under the agreement to reimburse the applicant for the deficit as an 'Employee Termination Payment'.

Furthermore, the court concluded that the respondent had subsequently assumed direct responsibility for funding the deficit.

The court rejected the respondent's limitation period and contributory fault defences, granting the declaration.