Court File and Parties

Divisional Court File No.: 192/17 Date: 2017-07-26 Superior Court of Justice – Ontario Divisional Court

Re: Amalgamated Transit Union, Local 113 and others v. Toronto Transit Commission

Before: Nordheimer J.

Counsel: Ian Fellows, Dean Ardron, Kristen Allen & Ashley Schuitema, for the applicants/moving parties Paul Schabas, Roy C. Filion Q.C, Kaley Pulfer & Bonnea Channe, for the responding party

Heard at Toronto: written submissions

Endorsement

NORDHEIMER J.:

[1] On June 30, 2017, I dismissed a motion by the applicants by which they sought leave to appeal from the Order of Associate Chief Justice Marrocco, dated April 3, 2017, that denied their application for an interlocutory injunction to prevent the respondent from implementing random drug and alcohol testing pending the conclusion of a grievance arbitration. In dismissing the motion, I concluded that the order in question was final and thus the appeal route was to the Court of Appeal and not to the Divisional Court. I said in my reasons that if the parties could agree on the costs of the motion, they could make written submissions. I have now received and reviewed those submissions.

[2] The respondent seeks costs on the substantial indemnity scale. It does so on the basis that it told the applicants that any appeal from the order was to the Court of Appeal; that nonetheless the applicants persisted in bringing their motion for leave to appeal; and that consequently the applicants unnecessarily ran up the costs of the litigation thus triggering that basis for awarding costs on the higher scale: Standard Life Assurance Co. v. Elliott (2007), 2007 ONSC 18579, 86 O.R. (3d) 221 (S.C.J.) at para. 9.

[3] In my view, the rationale for awarding costs on the higher scale as a consequence of running up the costs of the litigation must be understood as arising in a situation where those costs were run up in pursuit of an unnecessary or meritless step. The situation here does not fall into that category of cases. While I acknowledge that the respondent was ultimately found to be correct in its position on jurisdiction, the issue was not entirely without doubt. Indeed, as I believe my reasons reveal, the question was not a straight forward one.

[4] Consequently, I am not prepared to award costs on the substantial indemnity scale.

[5] In terms of the quantum of costs, the respondent seeks $23,592.33 on a partial indemnity basis. The applicants submit that $12,883.85 is a more appropriate amount.

[6] In my view there is justification in this case for setting an amount for costs that is somewhat higher than would normally be the case on a motion for leave to appeal for two reasons. One is the fact that, as I have already noted, the issue on which the respondent was successful was a somewhat difficult one. The other is that, having brought the motion for leave to appeal, the applicants compelled the respondent to address the merits of whether leave ought to be granted, if the jurisdiction issue was decided in the applicants’ favour. Were it not for these two factors, the amount suggested by the applicants would be a reasonable one.

[7] Consequently, I fix the costs of the motion for leave to appeal in the amount of $20,000 inclusive of disbursements and HST which costs are to be payable by the applicants to the respondent within thirty days.

NORDHEIMER J.

Date of Release: July 26, 2017