SUPERIOR COURT OF JUSTICE - ONTARIO
COURT FILE NO.: 06-26503B
DATE: 2012-03-29
RE: Kenneth Donald Gordon, Linda Joyce Gordon and Michael Gordon, plaintiffs
AND: Procyk Farms (1994) Limited, William Procyk, Annie Procyk, Michael Procyk, Daniel Procyk and Dow Agrosciences Canada Inc.
AND: Sylvite Agri-Services Limited, Future Transfer Company Inc. and R M Nelles & Son, third parties
AND: Dow Agrosciences Canada Inc., fourth party
BEFORE: Mr Justice Ramsay
COUNSEL:
Mr ZS Pete Volaric for the defendants Procyk
Mr Michael G. Emery for the third party Sylvite
Mr James H. Bennett for the third party Nelles
ENDORSEMENT
1Sylvite and Nelles moved unsuccessfully for summary judgment on the Procyk defendants’ third party claim against them ( 2012 ONSC 1593 ). The Procyk defendants now ask in writing for costs.
2The defendants were successful and should have their costs on a partial indemnity basis. Nelles says that Sylvite should pay any costs that I would have ordered Nelles to pay, because the defendants would have let Nelles out of the action if Sylvite had made some admissions of fact. I agree that Sylvite acted unreasonably in withholding those admissions, but I doubt my jurisdiction to order a party to pay costs for another party’s motion. Nelles was forced to remain in the action, but it did not have to move for summary judgment.
3I order Sylvite to pay costs to the defendants’ fixed at $12,000 within 30 days. I order Nelles to pay costs to the defendant fixed at $2,500 within 30 days.
J.A. Ramsay J.
Date: 2012-03-29