CITATION: CNH Canada Ltd. v. Chesterman, 2015 ONSC 4092
DIVISIONAL COURT FILE NO.: DC-11-0021-00
DATE: 2015/07/10
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
ASTON, PEPALL AND MCGEE JJ
B E T W E E N:
Chesterman Farm Equipment Inc.
Eric K. Gillespie, for the applicant (respondent in appeal)
Applicant (Respondent in Appeal)
- and -
CNH Canada Ltd.
Stuart Mackay, for the respondent (applicant in appeal)
Respondent (Appellant in Appeal)
HEARD: on written submissions
Endorsement re Costs
Claims for Costs
[1] The appellant, CNH, appealed the March 17, 2011 decision of the Agricultural, Food and Rural Affairs Appeal Tribunal to this court and also brought a motion to admit fresh evidence. The respondent, Chesterman Farm Equipment Inc., sought a dismissal of the appeal and the motion. The proposed fresh evidence addressed an alleged misapprehension of a concession made by CNH.
[2] Before us on March 21, 2012, there was no transcript against which to test the dispute over the nature of the concession made by CNH counsel in his submissions to the Tribunal. In addition, certain issues raised on the appeal had not yet been addressed by the Tribunal which still had to address phase two of the parties’ dispute.
[3] In these circumstances, we invited the parties to address these issues. Counsel asked us to refer the matter back to the Tribunal, on consent. However, they could not agree on costs. We therefore ordered that costs would be decided, if necessary, on the basis of written submissions following the decision of the Tribunal.
[4] The subsequent Tribunal decision was rendered on March 24, 2014. The Tribunal awarded costs of the proceedings before it in favour of Chesterman. CNH has appealed the Tribunal’s decision to the Divisional Court.
[5] The parties now seek costs before us arising out of their March 21, 2012 attendance before us. Chesterman seeks its costs in the full indemnity amount of $78,989 plus post judgement interest. It submits that CNH wrongly sought to introduce new issues before this court, or in the alternative, ought to have returned to the Agricultural, Food and Rural Affairs Appeal Tribunal to address any outstanding issues.
[6] CNH submits that the March 21, 2012 appeal to this panel was an appeal as of right pursuant to sub-section 5(7) of the Farm Implements Act, R.S.O. 1990, Ch. F. 4, and that it was successful in obtaining an order referring the matter back to the Tribunal. Moreover, no dismissal as sought by Chesterman was granted.
[7] Alternatively, CNH submits that Chesterman has already been compensated by the Tribunal for any costs of the March 21, 2012 attendance by the costs award made by the Tribunal. They argue that to provide any additional award would amount to double recovery.
[8] CNH seeks its costs of $15,000 on a partial indemnity scale, or in the alternative, that costs be reserved to the Divisional Court panel hearing its appeal of the March 24, 2014 decision of the Tribunal.
Decision
[9] The only outstanding matter before us is the costs of the parties’ attendance on March 21, 2012. We neither heard nor disposed of the appeal. Indeed the appeal of the Tribunal’s decision is still before the court. We also note that no order was ever taken out.
[10] Neither party is entitled to the excessive costs sought before us. But for the costs issue, the matter was remitted to the Tribunal on consent. In our view, a fair and reasonable disposition is for CNH to pay Chesterman its costs of the attendance fixed in the amount of $2500 inclusive of disbursements and applicable taxes. Any costs relating to CNH’s appeal are to be addressed by the panel hearing the appeal of the Tribunal’s decision.
ASTON J.
PEPALL J.
MCGEE J.
Released: July 10, 2015
CITATION: CNH Canada Ltd. v. Chesterman, 2015 ONSC 4092
DIVISIONAL COURT FILE NO.: DC-11-0021-00
DATE: 2015/07/10
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
ASTON, PEPALL AND MCGEE JJ
B E T W E E N:
Chesterman Farm Equipment Inc.
Applicant
(Respondent in Appeal)
- and –
CNH Canada Ltd.
Respondent
(Applicant in Appeal)
ENDORSEMENTS RE COSTS
Released: July 10, 2015