SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO: 12 - CV-00450962
DATE: 20121108

RE: Complete Innovations Inc.
Applicant

• and -

Pinpoint GPS Solutions Inc.
Respondent

BEFORE: The Honourable Mr. Justice Robert F. Goldstein

COUNSEL:
James Jagtoo,
for the Applicant

Timothy J. Hill,
for the Respondent

HEARD : Written submissions

E N D O R S E M E N T

AS TO COSTS

[ 1 ] On July 11, 2012 I heard the Applicant’s appeal from the decision of Arbitrator Larry Banack. On July 26, 2012 I released my reasons dismissing the appeal and inviting the parties to make submissions as to costs.

[ 2 ] Mr. Hill argues that full indemnity costs in the amount of $13,417.47 be awarded against the Applicant. He argues that the appeal should never have been brought as it was clear that it had no hope of success. In the alternative, Mr. Hill asks for partial indemnity costs in the amount of $10,492.46.

[ 3 ] Mr. Jagtoo argues that no costs should be awarded, and if they are awarded, full indemnity costs are not appropriate. Mr. Jagtoo also takes issue with the quantum of costs sought by Mr. Hill.

[ 4 ] Costs are within the discretion of the Court: Courts of Justice Act , s. 131(1). Rule 57.01(1) sets out the factors that the Court may consider in awarding costs. The over-arching principle is that the Court should fix an amount that is fair and reasonable: Boucher v. Public Accountants Council for Ontario , 2004 14579 (Ont.C.A.), 71 O.R. (3d) 291, [2004] O.J. No. 2643 (C.A.)

[ 5 ] In Schreiber v. Mulroney , 2007 31754 (ON SC) , [2007] O.J. No. 3191 (Sup.Ct.) Newbould J. set out the following test:

9 The test for awarding what was earlier in Ontario referred to as costs as between solicitor-and-client and now under our rules as costs on a substantial indemnity basis is succinctly stated in Orkin, The Law of Costs , 2nd Edition, at para. 219 as follows:

Costs on the solicitor-and-client scale should not be awarded unless special grounds exist to justify a departure from the usual scale.

As the court said in Foulis v. Robinson, 1978 1307 (ON CA) , [1978] O.J. No. 3596:

Generally speaking, an award of costs on a party-and-party scale to the successful party strikes a proper balance as to the burden of costs which should be borne by the winner without putting litigation beyond the reach of the loser. There are, of course, cases in which justice can only be done by a complete indemnification for costs.

An award of costs on the solicitor-and-client scale, it has been said, is ordered only in rare and exceptional cases to maker the court's disapproval of the conduct of a party in the litigation. The principle guiding the decision to award solicitor-and-client costs has been enunciated thus:

[S]olicitor-and-client costs should not be awarded unless there is some form of reprehensible conduct, either in the circumstances giving rise to the cause of action, or in the proceedings, which makes such costs desirable as a form of chastisement.

The Supreme Court of Canada has approved the following statement of principle:

Solicitor-and-client costs are generally awarded only where there has been reprehensible, scandalous or outrageous conduct on the part of one of the parties.

[ 6 ] There is no basis to award costs against the Applicant on a full indemnity scale. In no sense can Mr. Jagtoo’s conduct be said to have been reprehensible, scandalous, or outrageous. His conduct and demeanour before me was highly professional. Although the Applicant lost, the appeal was not frivolous or vexatious. A mere disagreement as to the likely outcome of a particular case is not grounds to award full indemnity costs.

[ 7 ] That said, I also reject Mr. Jagtoo’s argument that no costs should be awarded. As Newbould J. stated in Mulroney v. Schreier, supra :

2 The principle that a successful party is entitled to his or her costs is of long standing, and should not be departed from except for very good reasons. See Orkin, The Law of Costs , 2nd Edition, para. 205.2(2).

[ 8 ] In my view, given the complexity of the matter and the experience of counsel , the partial indemnity amount of $10,492.46 is reasonable under the circumstances and is awarded to the Respondent.

GOLDSTEIN, J.

DATE: November 8, 2012