Court of Appeal for Ontario

CITATION: Quickie Convenience Stores Corp. v. Parkland Fuel Corporation, 2021 ONCA 287

DATE: 20210503

DOCKET: C67832

Fairburn A.C.J.O., Feldman and Nordheimer JJ.A.

BETWEEN

Quickie Convenience Stores Corp.

Applicant (Appellant)

and

Parkland Fuel Corporation

Respondent (Respondent)

William C. McDowell, Brian Kolenda and Vinayak Mishra, for the appellant

Linda M. Plumpton and Jonathan Silver, for the respondent

Heard: in writing

On appeal from the judgment of Justice Paul B. Kane of the Superior Court of Justice dated November 14, 2019, with reasons reported at 2019 ONSC 6520.

COSTS ENDORSEMENT

[1] On July 10, 2020, we released our decision in which we allowed the appeal, set aside the order below and, in its place, granted an order providing the appellant with the declaratory relief that it sought in its Notice of Application. We awarded the appellant the costs of the appeal fixed in the agreed amount of $35,000 inclusive of disbursements and HST. We then invited the parties to make written submissions on the costs of the original application. While the parties filed their costs submissions in accordance with the schedule set by the court, due to an administrative error, those submissions were only very recently provided to the panel. We have now reviewed those submissions.

[2] The appellant asks for its costs of the appeal on a substantial indemnity basis in the amount of $230,313.09 on the basis of the conduct of the respondent that led up to this proceeding. In the alternative, the appellant seeks costs in the amount of $174,978.68, representing 60% of its actual costs.

[3] The respondent does not dispute that the appellant is entitled to its costs of the application but submits that there is no basis for an award of substantial indemnity costs. The respondent also submits that the amount of costs sought is excessive. It says that a reasonable amount would be no more than $85,000.

[4] Contrary to the appellant’s submissions, we do not consider the conduct of the respondent to be such as to warrant an award of costs on the elevated substantial indemnity scale. As has been observed in many cases, costs on the elevated scale are exceptional and are reserved for those situations when a party has displayed reprehensible, scandalous or outrageous conduct: see, most recently, Montréal (Ville) v. Octane Stratégie inc., 2019 SCC 57, 440 D.L.R. (4th) 1, at para. 95. The conduct of the respondent in this case does not rise to that level, even with the finding of bad faith dealing. An award of partial indemnity costs is appropriate.

[5] In our view, an award of costs in the amount of $100,000 inclusive of disbursements and HST is a fair and reasonable amount to fix for the costs of the original application. In fixing that amount, we have taken into account a number of factors including the fact that the application judge awarded the respondent costs of $52,900 on the original application, that the appellant would have had a heavier burden as the applicant, and that neither party was successful on all of the issues raised.

[6] The respondent is ordered to pay that amount to the appellant.

“Fairburn A.C.J.O.”

“K. Feldman J.A.”

“I.V.B. Nordheimer J.A.”