Court File and Parties

CITATION: Sweda Farms Ltd. et al. v. Egg Farmers of Ontario et al, 2014 ONSC 3797

COURT FILE NO.: 426/13

DATE: 20140707

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT AT TORONTO

RE: Sweda Farms Ltd., Best Choice Eggs Ltd. and Tilia Transport Inc., Plaintiffs/Respondents

AND:

Egg Farmers of Ontario, Harry Pelissero, Burnbrae Farms Limited, Burnbrae Holdings Inc., Maple Lynn Foods Limited, L.H. Gray & Son Limited, William Harding Gray, John Klei and the Estate of Johannes Klei, Defendants

BEFORE: Kiteley J.

COUNSEL: Donald R. Good, for the Plaintiffs/Respondents

Allison Webster, for the Defendants/Moving Parties L.H. Gray & Son Limited and William Harding Gray (the L.H. Gray defendants)

HEARD: May 26, 2014

ENDORSEMENT ON MOTION FOR LEAVE TO APPEAL COSTS

[1] In an earlier endorsement[^1] I dismissed the motion by the L.H. Gray defendants for leave to appeal an order dismissing their motion for summary judgment. On May 26, 2014 I heard submissions on their motion for leave to appeal the order as to costs that the Justice Carole J. Brown had made[^2]. At the conclusion of submissions, I indicated that I dismissed the motion for leave to appeal the costs order, with reasons to follow. These are the reasons.

[2] The plaintiffs had delivered a costs outline that reflected full indemnity costs (described as 90% of the total) in the amount of $109,000 or partial indemnity costs in the amount of $86,321.62. The motions judge ordered the L.H. Gray defendants to pay costs to the plaintiffs in the amount of $55,000 all inclusive.

[3] Counsel for the L.H. Gray relies on both rule 62.02(4)(a) and (b) and concedes that, with respect to an appeal of a costs award, leave should only be granted in obvious cases, where there are strong grounds upon which the appellate court could find that the judge erred in exercising her discretion and that leave is rarely granted because of the high degree of deference accorded to the judge at first instance.[^3]

[4] Counsel provided copies of the costs outline that had been submitted to the motions judge along with the detailed reply costs submissions and the authorities on which the L.H. Gray defendants relied. It is the case that in response to the costs outline, counsel for the L.H. Gray defendants made a number of submissions with respect to the level of recovery, the “grossly excessive” hours spent on the motion for summary judgment; the lack of itemized dockets for fees; the inappropriate inclusion of travel and accommodation costs; the lack of detail for a counsel fee of $10,000; the fees charged for a second counsel who did not participate in the motion; and other concerns.

Analysis

[5] I do not agree that the decision of the motions judge conflicts with other decisions. It is very difficult to argue conflict between and among costs decisions on motions for summary judgment because the applicable factors and the variables mean that comparison is not useful. It may be that the amount awarded appears to be higher than in other motions for summary judgment. But there is no conflict in the context of rule 62.02(4)(a).

[6] I am also not persuaded that it is desirable for leave to appeal to be granted. In our system where motions for summary judgment are routine, the broad discretion of the motions judge to order costs must be respected unless it is obvious that the judge erred. It is not obvious in this case.

[7] Counsel argues that there is good reason to doubt the correctness of the decision for various reasons including the failure to identify the level of recovery of costs and, based on the succinct reasons contained in the endorsement, the failure to consider the detailed submissions of counsel for the L.H. Gray defendants referred to above. It is the case that the motions judge did not specify the level of recovery. But it is an inference one can readily draw from an amount that is approximately 50% of the full indemnity costs, that an award of substantially less than partial indemnity costs was made. Furthermore, while the motions judge did not specifically refer to each of the challenges to the costs outline, she summarized them and then rationalized her award on the basis of the application of the factors in rule 57.01. I am not persuaded that there is good reason to doubt the correctness of the decision.

[8] In order to meet the criterion of “general importance” in rule 62.02(4)(b), the importance must transcend the interests of the immediate parties to the litigation. I understand the submission that motions for summary judgment and the costs associated with them are matters that transcend the interests of the parties to the litigation, particularly following the decision of the Supreme Court in Hryniak v Mauldin[^4]. But the motion for leave creates a gatekeeping function to ensure that only appeals that do transcend the interests of the litigants receive the attention of a three judge panel of the Divisional Court. I am not persuaded that this is such a case.

ORDER TO GO AS FOLLOWS:

[9] The motion for leave to appeal is dismissed. The amount of costs having been agreed subject to success, the L.H. Gray defendants shall pay to the plaintiffs costs in the amount of $5000 all in.

Kiteley J.

Date: July 2014

[^1]: 2014 ONSC 3016 [^2]: 2013 ONSC 7160 [^3]: 2156384 Ontario Inc. v. C & K Property Management Inc., 2012 ONSC 6759 [^4]: 2014 SCC 7