Court of Appeal for Ontario
CITATION: National Steel Car Limited v. Independent Electricity System Operator, 2020 ONCA 37
DATE: 20200121
DOCKET: C65677 & C65678
Lauwers, van Rensburg and Trotter JJ.A.
BETWEEN
DOCKET: C65677
National Steel Car Limited
Applicant/Responding Party (Appellant)
and
Independent Electricity System Operator, Ministry of Attorney General (Ontario), Minister of Energy (Ontario)
Respondents/Moving Parties (Respondents)
AND BETWEEN
DOCKET: C65678
National Steel Car Limited
Applicant/Responding Party (Appellant)
and
Independent Electricity System Operator, the Attorney General of Ontario, and Her Majesty the Queen in Right of Ontario
Respondents/Moving Parties (Respondents)
Earl A. Cherniak, Q.C., Jerome R. Morse and David Trafford, for the appellant
Alan H. Mark and Melanie Ouanounou, for the respondent Independent Electricity System Operator
Robin K. Basu and Padraic Ryan, for the respondents Ministry of the Attorney General (Ontario) and Her Majesty the Queen in Right of Ontario
Heard: April 24, 2019
On appeal from the orders of Justice Wendy M. Matheson of the Superior Court of Justice, dated June 20, 2018, with reasons reported at 2018 ONSC 3845.
COSTS ENDORSEMENT
[1] National Steel Car Limited was successful on the appeal. The court permitted the parties to make submissions on the costs of the appeal and the costs of the motion. The parties made submissions and National Steel Car replied.
[2] The parties agreed before the argument that the costs for the appeal would be set at $75,000, all-inclusive. Accordingly, we fix costs for the appeal at $75,000, payable jointly and severally by the respondents to the appellant. This leaves for determination the costs of the motions for summary judgment.
[3] The motion judge dealt with the costs in an endorsement reported at 2018 ONSC 5165. She noted that Ontario sought costs in the amount of $50,000, all-inclusive for partial indemnity costs on the motions. IESO sought costs of about $120,000, for both the motions and the applications. She added, at para. 4:
Both of these amounts compare favourably to the costs of the applicant in relation to the motions, from which I conclude that the overall quantum is within the applicant’s reasonable expectations. The applicant’s costs were approximately $210,000 all-inclusive, on a partial indemnity basis.
The motion judge awarded $50,000 to Ontario, and $75,000 all-inclusive to IESO.
[4] National Steel Car renews its request for costs on a partial indemnity basis on the motions in the amount of $212,506.35, made up of $182,251.50 in partial indemnity fees, HST of $23,692.70 and disbursements in the amount of $6,562.15.
[5] National Steel Car’s submissions observe that its lawyers docketed a total of 563.3 hours while the lawyers for Ontario and IESO docketed 647.3 hours, 84 hours more. Accordingly, they assert that the time spent by each side was proportional. They note as well that the hourly rates of the lawyers for National Steel Car are comparable with those for counsel for IESO. They assert that Ontario must be considered differently for costs purposes because its lawyers are salaried and do not charge hourly rates.
[6] In its submissions National Steel Car notes:
Despite the discrepancy in partial indemnity rates claimed, the MAG’s docketed hours at its reduced partial indemnity rates equal $76,250 (not including HST), while the IESO’s docketed hours with its reduced partial indemnity rates equal $105,501.11 (not including HST). Combined the partial indemnity fees sought by the MAG and the IESO equal $181,501.11 compared to NSC’s claim for partial indemnity fees (not including HST) of $182,251.50, a meager difference of $500.39.
National Steel Car asserts that the amount it claims is within the reasonable expectation of the respondents and is proportional to the issues in the case.
[7] Ontario submits that the award of costs for the motions should be no greater than $75,000, which is the amount awarded to the IESO by the motion judge. Ontario argues that the amount awarded by the motion judge in total was $125,000, which is less than 60 percent of the costs claimed by National Steel Car on the motions. Ontario notes that there is some overlap between the work done by its counsel and the work done by IESO, even though counsel made an effort to minimize duplication of written and oral argument; however, the overlap is the fault of National Steel Car because it joined both Ontario and IESO as respondents. Ontario submits that it would be unreasonable to equate the time spent by National Steel Car’s counsel with the time spent by counsel for Ontario and IESO. Ontario adds that much of the work done by National Steel Car will be of benefit in the continuing applications.
[8] IESO asserts that the amount of the costs claimed is not within its reasonable contemplation. It takes the position that National Steel Car’s costs should be capped at $125,000, in line with its own claim on the motion and with the motion judge’s thinking.
[9] We agree that while the hours spent by each side and their financial costs roughly equate, there is overlap that tended to increase the responding side’s costs and the overlap was in part caused by the way in which National Steel Car framed the applications. But, since Ontario and IESO were able to divide their labours, the overlap was not considerable. Nor should National Steel Car be adversely limited by the fact that Ontario’s costs demands are relatively low.
[10] We agree with National Steel Car’s reply that if there is work already done and paid for by this costs award, it will be open to the parties to make that submission following the disposition of the applications.
[11] Taking the factors together, we fix the amount to be paid by the respondents to National Steel Car in the amount of $175,000, inclusive of HST and disbursements.
“P. Lauwers J.A.”
“K. van Rensburg J.A.”
“Gary Trotter J.A.”