Court File and Parties

Court File No.: CV-16-557932 Date: 2018/10/31 Ontario Superior Court of Justice

Between: Nygård International Partnership, Plaintiff – and – Hudson’s Bay Company, Defendant

Counsel: Richard I. Good and Brad Adams, for the Plaintiff Eliot N. Kolers, for the Defendant

Heard: In writing

Perell, J.

Reasons for Decision - Costs

[1] The Plaintiff, Nygård International Partnership, moved for an amendment to its Statement of Claim. The Defendant, Hudson’s Bay Company (“HBC”), moved for a summary judgment dismissing Nygård’s action on the grounds that the action, including its proposed amended claim was statute-barred by the Limitations Act, 2002, S.O. 2002, c. 24, Sched. B.

[2] On the motions, HBC conceded that save to the extent that the proposed amendments to the Statement of Claim were statute-barred, it had no objection to Nygård’s Statement of Claim being amended.

[3] I granted Nygård’s motion, in part, and I granted HBC’s summary judgment motion, in part. I declared that Nygård’s claims are statute-barred save for merchandise sales that occurred after February 1, 2016. Nygård International Partnership v. Hudson’s Bay Company, 2018 ONSC 5143.

[4] I did not ask for costs submission. Because there was divided success on the motions, I ordered the costs of both motions to be costs in the cause.

[5] I released my decision on September 4, 2018. On October 18, 2018, I received a letter from HBC’s counsel requesting that I consider awarding HBC costs of $36,711.83, all inclusive. HBC submitted that although the technical result of the motions was divided success, HBC was actually entirely successful on its motion for summary judgment inasmuch as the pleaded action was struck as statute-barred and in these circumstances HBC should, therefore, have its costs on the motion and the action to date payable forthwith. HBC submitted that the only divided success was on Nygård’s motion to amend, and it was only for that motion that it was appropriate to order costs in the cause.

[6] On October 24, 2018, Nygård’s counsel wrote me, and it submitted that I had already exercised my discretion about costs, and, accordingly, I was functus officio on the matter of costs. Nygård suggested that if HBC was grieved by my discretionary order the only avenue to challenge it would be by way of an appeal to the Divisional Court. While it is not entirely clear from Nygård’s counsel’s letter, it appears that Nygård does not challenge how I had exercised my discretion and rather agrees that it was appropriate and fair to order costs in the cause for both motions.

[7] I am not functus officio. The formal order for the motions has not been taken out. Nygård blames this on HBC, but I see no purpose in resolving whether the order could have been taken out earlier, which, if true, in any event could have been rectified by a motion under rule 59.06 to amend, set aside or vary the order.

[8] I am simply not persuaded that I exercised my discretion incorrectly. I remain of the view that my order was fair and appropriate. This is ongoing litigation. The motions were intertwined and they were argued as one motion at one hearing and there was divided success. Costs in the cause simply lets the trial judge determine who should be awarded costs for these motions while taken the whole of the proceedings including the outcome into account.

Perell, J. Released: October 31, 2018