ONTARIO

SUPERIOR COURT OF JUSTICE

Court File No.: 12-34990 Ham
Date: 2012-09-12

B E T W E E N:

CBS CANADA HOLDINGS CO., operating as CBS OUTDOOR CANADA

L.A. Frapporti and P.J. Kennedy, for the Applicant

Applicant

• and –

ALL VISION CANADA COMPANY and CANADIAN NATIONAL RAILWAY COMPANY

R. Walker and D. Bernstein, for the Respondent, All Vision Canada Company
M. Stewart and M. Sampson, for the Respondent, Canadian National Railway Company

Respondents

The Honourable Mr. Justice D. J. Gordon

ENDORSEMENT

[ 1 ] In my endorsement, released June 22, 2012, I invited written submissions on
costs.

[ 2 ] The applicant sought interim injunctive relief. The motion was dismissed. In result, the respondents seek partial indemnity costs of $37,981.56 and $34,891.17.

[ 3 ] Applicant’s counsel does not challenge the amounts claimed by the respondents, nor do they question the time spent and hourly rates charged. Indeed, they disclose, quite appropriately, the applicant’s partial indemnity costs of $80,806.62.

[ 4 ] The position advanced on behalf of the applicant is that costs ought be awarded in the cause, or alternatively, left to the judge hearing the ultimate application. A further alternative proposed is that there be no order as to costs.

[ 5 ] With respect, I disagree with those positions. Rule 57.03 requires that I fix the costs of the motion unless a different order would be more just. There is no basis, in my view, to grant a different order. The end result is unknown. Nevertheless, the parties are all sophisticated business organizations who well understand the risk and expense in litigation. The comparative cost amounts support such a conclusion.

[ 6 ] The cost claims of the respondents are fair and reasonable. While the costs of an applicant traditionally exceed that of a respondent, the applicant’s expense is indicative of the reasonableness of the present claim. As stated, these amounts are not challenged.

[ 7 ] Accordingly, I award costs, on a partial indemnity basis, to All Vision in the amount of $37,981.56, and to CN for $34,891.17, both to be paid by the applicant within 30 days.

Gordon, J

Released: September 12, 2012