Midwest Properties Ltd. v. Thordarson et al.

[Indexed as: Midwest Properties Ltd. v. Thordarson]

Ontario Reports

Court of Appeal for Ontario,

K.N. Feldman, Hourigan and Benotto JJ.A.

March 29, 2016

130 O.R. (3d) 238 | 2016 ONCA 230

Case Summary

Civil procedure — Costs — Disbursements — Plaintiff not entitled to reimbursement of cost of environmental assessment reports prepared for purpose of possible acquisition of defendant's property — Cost of reports not recoverable as disbursements merely because they were referred to at trial.

On appeal, the plaintiff was awarded its costs of the trial. It sought reimbursement for environmental assessment reports which it commissioned in furtherance of a possible acquisition of the defendant's property.

Held, reimbursement should be denied. [page239]

The reports were not commissioned to assist in or in contemplation of litigation. Their cost was not recoverable as a disbursement merely because they were referred to at trial.

Cases referred to

Midwest Properties Ltd. v. Thordarson (2015), 128 O.R. (3d) 81, [2015] O.J. No. 6209, 2015 ONCA 819, 341 O.A.C. 168, 96 C.E.L.R. (3d) 1, 24 C.C.L.T. (4th) 283, 392 D.L.R. (4th) 387, 260 A.C.W.S. (3d) 419

APPEAL from the judgment of Pollak J., [2013] O.J. No. 848, 2013 ONSC 775, 73 C.E.L.R. (3d) 303 (S.C.J.).

Evert Van Woudenberg, for appellant.

Frank Zechner and Christopher Du Vernet, for respondents.

Sandra Nishikawa and Isabelle O'Connor, for intervenor Minister of the Environment and Climate Change.

[1] Costs endorsement BY THE COURT: -- In a decision of this court, dated November 27, 2015, the appellant was awarded, among other things, its costs of the trial: Midwest Properties Ltd. v. Thordarson (2015), 128 O.R. (3d) 81, [2015] O.J. No. 6209, 2015 ONCA 819. The parties were invited to file brief written submissions if they could not agree on the quantum of trial costs.

[2] The parties agree on most of the trial costs claimed by the appellant. They agree that the appellant is entitled to partial indemnity costs of $130,728.66, inclusive of $105,603 in fees, $11,397.27 in disbursements and $13,728.39 in HST. In addition, the parties agree that the appellant is entitled to recover disbursements of $106,636.20 for 14 expert reports prepared by the appellant's environmental experts, Pinchin Environmental ("Pinchin"). This amount also includes the fees charged by Pinchin to prepare for and to testify at trial.

[3] There is one area of disagreement. The appellant seeks reimbursement in the amount of $32,025.00 for Phase I and Phase II environmental assessment reports prepared by Pinchin. These reports were commissioned by the appellant in furtherance of a possible acquisition of the respondent Thorco Contracting Limited's ("Thorco") property.

[4] The appellant submits that although the reports were prepared for the purpose of investigating the purchase of Thorco's property, they were filed at trial and Pinchin's witnesses gave evidence with respect to both reports. Therefore, the appellant argues that it is entitled to reimbursement for this disbursement.

[5] We disagree. The reports were not commissioned to assist in or in contemplation of litigation. They are therefore not [page240] recoverable as a disbursement in this litigation. The fact that they were referenced at trial does not alter their nature as non-litigation work product. Moreover, although the reports were used at trial, it is not clear that had they not been available, it would have been necessary to obtain them for the trial.

[6] The appellant's trial costs are fixed, as agreed among the parties, in the total amount of $237,364.86, inclusive of all fees, disbursements and applicable taxes.

Order accordingly.

End of Document