Coco Paving (1990) Inc. v. Ontario (Transportation), 2009 ONCA 568

CITATION: Coco Paving (1990) Inc. v. Ontario (Transportation), 2009 ONCA 568

DATE: 20090713

DOCKET: C50509

COURT OF APPEAL FOR ONTARIO

Cronk, Gillese and Armstrong JJ.A.

BETWEEN

Coco Paving (1990) Inc.

Applicant (Respondent in Appeal)

and

Her Majesty the Queen in Right of Ontario as represented by the Minister of Transportation for Ontario, the Minister of Transportation, Ministry of Transportation and Phil Hutton

Respondents (Respondents in Appeal)

and

Bot Construction Limited, Bot Holdings Limited, Bot Construction (Canada) Limited, Clarkson Construction Company Limited, Bot Ventures Ltd., Bot Construction (Ontario) Limited, and Bot Management Services Ltd.

Intervenors (Appellants)

and

Ontario Road Builders’ Association

Intervenor

Christopher D. Bredt and Matthew R. Alter, for the appellants, the Bot Group

Ronald Carr and Henry Weilenmann, for the Crown respondents

David M. McNevin, for the respondent, Coco Paving (1990) Inc.

Duncan W. Glaholt, for the intervenor, Ontario Road Builders’ Association

Heard: June 18, 2009

On appeal from the judgment of Justice Mary Jo M. Nolan of the Superior Court of Justice, dated May 19, 2009.

COSTS ENDORSEMENT

By the Court:

[1] Our reasons for judgment in this matter were released on June 19, 2009. In those reasons, we allowed the Bot Group’s appeal and directed that the parties’ written submissions on costs be delivered to the Registrar of this court by the close of business on June 23, 2009. We have now received and reviewed those submissions.

[2] The Bot Group was successful on appeal. As a result, it seeks an award of costs in the following amounts: (i) costs in the total amount of $29,379.79, inclusive of disbursements and GST, in respect of the Bot Group’s successful stay motion in this court, which resulted in the stay of the judgment of Nolan J. of the Superior Court of Justice dated May 19, 2009 pending the determination of the Bot Group’s appeal therefrom to this court; and (ii) costs in the total amount of $43,793.37, inclusive of disbursements and GST, concerning the appeal. Although not expressly stated in the Bot Group’s costs submissions, based on the hourly rates disclosed therein, we assume that the costs sought have been calculated on the partial indemnity scale.

[3] The Crown respondents (the “MTO”), who supported the Bot Group’s appeal, do not seek costs of the appeal. However, the MTO does seek costs of the application brought by Coco Paving (1990) Inc. (“Coco”) before Nolan J. (the “Application”). The MTO’s costs submissions indicate that counsel for the parties agreed that the costs of the Application would be fixed in the amount of $30,000. It is that amount that the MTO seeks by way of a costs award in its favour.

[4] The MTO opposed the Bot Group’s stay motion in this court. As we have said, the Bot Group was successful in obtaining the requested stay order pending the determination of its appeal from the application judge’s judgment. The costs of the stay motion were reserved to the Panel hearing the appeal. The MTO takes the position that despite its opposition to the stay motion, no costs in respect of that motion should be awarded against it since its opposition was based on the public interest and was intended to avoid prejudicing the interests of any of the parties to the appeal.

[5] The intervenor, Ontario Road Builders’ Association does not seek costs in its favour in respect of any of the proceedings in which it was involved, including the appeal.

[6] Coco does not challenge the Bot Group’s entitlement to costs of the appeal. However, it submits that the costs claimed for the appeal are excessive and fail to reflect what Coco might reasonably have been expected to pay. It argues that the costs of the appeal should be fixed in an amount in the range of $12,000 to $15,000.

[7] Coco confirmed in its costs submissions that it agreed to fix the costs of the Application in the aggregate amount of $30,000. It points out, however, that it undertook most of the preparation both for the Application and for various court attendances before Ducharme J. of the Superior Court of Justice, leading up to the argument of the Application. It resists any award of the costs of the Application and related prior proceedings in favour of the MTO on several grounds, including : (i) the MTO did not raise the issue of the costs of the Application during oral argument of the appeal; (ii) the MTO did not appeal the decision of the application judge; (iii) the MTO failed to provide any bill of costs or other supporting materials concerning its claim for costs of the Application; and (iv) with respect to the merits of the Application, there were genuine issues of concern created by the terms of the MTO tender documents that required adjudication by the court. In these circumstances, as the MTO contributed to the causes leading to the litigation, it is unfair and inappropriate for the MTO to now seek an award of costs in respect of the Application.

[8] Finally, although Coco does not contest the Bot Group’s entitlement to the costs of the stay motion in this court, it maintains that an appropriate costs award for that motion is in the range of $5,000 to $8,000.

[9] We agree that the Bot Group is entitled to its costs of the appeal and the stay motion in accordance with the usual rule that costs follow the event. However, we also agree with Coco’s submission that the costs claimed are excessive in all the circumstances. In our view, an appropriate costs award in favour of the Bot Group is the total amount of $30,000, inclusive of disbursements and GST, on account of both the stay motion and the appeal.

[10] Based on this record, and essentially for the reasons advanced by Coco, we also agree that it is inappropriate to award the MTO its costs of the Application and we decline to do so. Further, we regard it as inappropriate to award any costs of the stay motion against the MTO.

[11] In the result, therefore, the Bot Group is entitled to its costs of the stay motion and the appeal in the total amount of $30,000, inclusive of disbursements and GST, payable by Coco. We make no award of costs in respect of the Application.

“E.A. Cronk J.A.”

“E.E. Gillese J.A.”

“Robert P. Armstrong J.A.”