SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO: CV-08-357295-0000
DATE: 20130403

RE: Jetport Inc.

Plaintiff/Appellant

• and -

Global Aerospace Underwriting Managers (Canada) Limited, National Liability & Fire Insurance Company, Temple Insurance Company, Lombard General Insurance Company of Canada, and Mitsui Sumitomo Insurance Company Limited

Defendants

AND BETWEEN:

Global Aerospace Underwriting Managers (Canada) Limited

Plaintiff

• and -

Jones Brown Inc. and Grant Robinson

Defendants

AND BETWEEN:

Jetport Inc.

Plaintiff

• and -

Jones Brown Inc.

Defendant

BEFORE: The Honourable Mr. Justice Robert F. Goldstein

COUNSEL:
David Chernos & Stuart Svonkin,
for the Plaintiff/Appellant

Robert Fenn, Robert Bell & Patrick H. Floyd,
for the Defendants, Global Aerospace Underwriting Managers (Canada) Limited, National Liability & Fire Insurance Company, Temple Insurance Company, Lombard General Insurance Company of Canada, and Mitsui Sumitomo Insurance Company Limited

David C. Rosenbaum & Christopher J. Rae,
for Jones Brown Inc. and Grant Robinson

HEARD: Written submissions

E N D O R S E M E N T

AS TO COSTS

[1] On January 10, 2013 I dismissed appeals in three actions by Jetport from a decision of Master Graham: see Jetport Inc. v. Global Aerospace Underwriting Managers (Canada) Ltd., [2013] O.J. No. 156, 2013 ONSC 235. Master Graham dismissed claims of litigation privilege made by Jetport. I found that the Master had not committed an error of law and dismissed the appeals. I asked the parties for written submissions as to costs. The parties have submitted detailed and helpful submissions and bills of costs to me.

[2] Counsel for Jones Brown Inc. and Grant Robinson point to the importance of the issue, the significant amount of work conducted by counsel and students, and the amount that Jetport could reasonably expect to pay. Counsel point to the very large volume of material that was filed by Jetport. Counsel requests a partial indemnity amount of $10,000.00 inclusive of fees and disbursements. The actual amount billed is set out as $32,234.03. Counsel for Global points to most of the same factors that counsel for Jones Brown/Grant Robinson point to, and request an amount of $8,672.75.

[3] Counsel for the responding parties do not suggest that full indemnity rates are appropriate. I agree. There were no decisions or tactics taken by counsel for Jetport that unduly prolonged or lengthened the matter. Jetport did not act vexatiously or inappropriately. Jetport was within its rights to appeal on the basis of a pure error of law and its position was arguable. Counsel for Jetport does not dispute that costs should be paid in the ordinary course and I agree. Jetport merely disputes the amounts.

[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] I respectfully disagree with counsel for the responding parties that the large volume of material should play a role in the costs determination. The rules require that there be a full record filed. I also do not see anything inappropriate, unethical, or wrong in taking an arguable, principled position, even if found to be incorrect.

[6] In my view, the most important element in determining costs in this case is the reasonable expectations of the parties. All three parties are sophisticated business entities represented by top-level counsel. When Jetport appealed it well knew that if it lost, it would be responsible for costs at rates that would be roughly equivalent to those it would have charged. By meeting the reasonable expectations of the party, the Court is likely to come to a decision that is fair and reasonable in these circumstances.

[7] I also, with respect, see no principled reason why there should be any significant difference between the amounts charged by the Respondents. They took virtually identical supporting positions, they had to review the same material, and they had to both make appearances.

[8] In my view, an amount of $8,000.00, inclusive of costs, GST, and disbursements would be an appropriate award for each of the Respondents. The Appellant/Applicant will have 60 days to pay from the date of the release of this endorsement.

GOLDSTEIN, J.

DATE: April 3, 2013