Agribrands Purina Canada Inc. v. Kasamekas, 2011 ONCA 581
CITATION: Agribrands Purina Canada Inc. v. Kasamekas, 2011 ONCA 581
DATE: 20110907
DOCKET: C51618 and C51637
COURT OF APPEAL FOR ONTARIO
Goudge, Gillese and Juriansz JJ.A.
BETWEEN
Agribrands Purina Canada Inc.
Plaintiff (Appellant)
and
Walter Kasamekas and Sherry Kasamekas, Raymond Joseph Jackon and Savitri Jackson
Defendants (Respondents)
AND BETWEEN
Walter Kasamekas and Sherry Kasamekas, Raymond Joseph Jackson and Raywalt Feed Sales
Plaintiffs by Counterclaim (Respondents)
and
Agribrands Purina Canada Inc., Ren’s Feed and Supplies Limited, Walter Rendell Job, McGrath Farms Inc., Edward James McGrath Farms Ltd., E.J.M. Farms Ltd. and The Estate of Edward James McGrath
Defendants by Counterclaim (Appellants)
Kirk F. Stevens and Gerard V. Thompson, for the appellants
W. Graydon Sheppard and Marc Munro, for the respondents
Heard: February 14, 2011
On appeal from the judgment of Justice Michael G. Quigley of the Superior Court of Justice dated January 6, 2010, with reasons reported at 2010 ONSC 166, [2010] O.J. No. 84.
COSTS ENDORSEMENT
[1] On June 20, 2011, this court released its decision in this appeal.
[2] We allowed the appeal of Agribrands Purina Canada Inc. (“Purina”) from the trial judge’s finding that it was liable to the respondents for the tort of civil conspiracy. We also allowed Purina’s appeal from the trial judge’s damages award for breach of contract, finding that the method of calculation used was in error, and substituting the proper method. Finally, we allowed Purina’s appeal from the trial judge’s award of pre-judgment interest. However, we dismissed Purina’s appeal of certain calculations by the trial judge that remained relevant to the proper method of calculating contract damages. We also dismissed Purina’s appeal of the punitive damages awarded against it.
[3] We also allowed the appeals of the Estate of Edward James McGrath and Ren’s Feed and Supplies Limited and Walter Rendell Job (together “Ren’s”) of the civil conspiracy finding against them, with the result that the respondents’ action against them failed.
[4] We sought and received written submissions from all parties about what costs orders should result from this decision, both costs in this court and at trial. Those submissions have now been received and reviewed. Our decision is as follows.
COSTS OF THE APPEAL
[5] Purina submitted a bill of costs for the appeal of $35,246.16 on a partial indemnity basis. Ren’s partial indemnity bill was $33,424.36. They both say that since they succeeded, and since they achieved a very significant overall reduction in the damages awarded to the respondents, they should be awarded $20,000 and $30,000 respectively as costs of the appeal. In other words, they argued for only a small reduction.
[6] We conclude that Purina should receive costs of the appeal on a partial indemnity basis fixed at $15,000, inclusive of disbursements and applicable taxes. The reduction from the amount sought by Purina reflects the divided success that Purina achieved. In this context it is particularly important that this court found no basis to interfere with the punitive damages award against Purina. In these circumstances, a significant reduction from the amount claimed is warranted.
[7] We award costs of the appeal to Ren’s on a partial indemnity basis fixed at the same amount, namely $15,000 inclusive of disbursements and applicable taxes. While Ren’s was completely successful in escaping liability, it split the issues in appeal with Purina, and they effectively argued the appeal together. Their costs, like Purina’s, must reflect the overall result. This reduction reflects the overall divided success they achieved. In addition, Ren’s was unsuccessful in its principal argument, namely the challenge to certain damage calculations made by the trial judge. Our award reflects these considerations.
[8] In summary, the respondents are ordered to pay costs of the appeal to Purina and Ren’s, each in the amount of $15,000, inclusive of disbursements and applicable taxes.
COSTS OF THE TRIAL
[9] At trial, the parties agreed that the respondents should receive trial costs of $175,000. Purina now argues that while it remains liable for breach of contract and therefore should pay some trial costs to the respondents, the amount should be reduced to $125,000 to reflect Purina’s success in resisting the claim for civil conspiracy.
[10] We disagree. Purina contested the respondents’ contract claim at trial and was found liable for this and for punitive damages. In these circumstances, the respondents’ failure to succeed on one cause of action is no reason to deprive them of the fair costs that the parties agreed should be paid to the successful party. We therefore decline to change the trial costs to be paid by Purina to the respondents.
[11] Ren’s seeks trial costs on a partial indemnity basis of approximately $65,000. They attended the entire trial. However, it appears to be agreed that only about one third of the trial was devoted to the civil conspiracy issue, the issue on which Ren’s was at risk. Hence a considerable reduction in the trial costs sought by Ren’s is appropriate. We therefore order that Ren’s receive trial costs in the amount of $25,000 inclusive of disbursements and applicable taxes.
[12] The respondents argue that a Sanderson order should be made that they recover these trial costs awarded against them from Purina. We agree. It was entirely reasonable for the respondents to join Ren’s and Purina in this action. The relationship between Ren’s and Purina was fundamental to both the civil conspiracy claim and the contract claim. It made every sense for the respondents to sue Ren’s as well as Purina. A Sanderson order is therefore appropriate.
[13] In summary, it is ordered that the respondents recover trial costs of $175,000 from Purina and Ren’s recover trial costs of $25,000 from the respondents which they in turn recover from Purina, each inclusive of disbursements and applicable taxes.
DISPOSITION
[14] Order to go accordingly.
“S.T. Goudge J.A.”
“E.E. Gillese J.A.”
“R.G. Juriansz J.A.”