Court File and Parties

COURT FILE NO.: 07-CV-328469PD1

DIVISIONAL COURT FILE NO.: 96/08

DATE: 20080624

SUPERIOR COURT OF JUSTICE - ONTARIO

DIVISIONAL COURT

RE: RAILINK CANADA LTD. CARRYING ON BUSINESS AS THE SOUTHERN ONTARIO RAILWAY, Plaintiff

• and - HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO, Defendant

BEFORE: Mr. Justice Carnwath

COUNSEL: Leonard Marsello & Christopher P. Thompson, for the Moving Party (Defendant) Kenneth R. Peel, for the Responding Party (Plaintiff)

COSTS ENDORSEMENT

CARNWATH J.:

[1] Ontario moved unsuccessfully before Crane J. to dismiss Railink’s suit as disclosing no reasonable cause of action.

[2] Ontario sought leave to appeal Crane J.’s decision before me on April 17, 2008. The motion for leave to appeal was denied and an opportunity was given to the parties to make submissions as to costs.

[3] Railink seeks fees of $17,639, plus GST and disbursements of $142.94, including GST. It also seeks costs for the preparation of the Costs submissions.

[4] Ontario does not dispute counsel’s hourly rate, but disputes the number of hours claimed by counsel. Ontario submits that a reasonable award would be fees of $13,845, plus fees of $284 for a student and clerk, plus disbursements of $142.94, less GST. Ontario takes the position that since it is not required to pay GST, it should not be required to reimburse Railink for the GST for which Railink is responsible. Ontario cites as authority the decision in Pinnock v. Ontario, [1999] O.J. No. 1065. Greer J. is reported at para. 14 of the judgment, “I agree with the Crown that an award of GST on Costs does not apply to the Crown”. I respectfully disagree with Greer J.’s conclusion and prefer the view that where a successful party is indemnified for costs it must pay, the province can not escape indemnification for GST.

[5] Railink was represented by senior counsel and the matter was somewhat complex. The matter was of importance to both parties. Taking into account the factors under r. 57.01(1), I exercise my discretion and award Railink costs of $13,500, inclusive of fees, disbursements and GST, payable thirty days.

CARNWATH J.

DATE: 20080624