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

[ 1 ] Sylvite 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.

[ 2 ] The 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.

[ 3 ] I 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