SUPERIOR COURT OF JUSTICE – ONTARIO
COURT FILE NO.: 52783/11 (St. Catharines)
DATE: 2013/04/02
RE: SeaWorld Parks & Entertainment LLC (Applicant) v. Marineland of Canada Inc. (Respondent)
BEFORE: The Honourable Mr. Justice R.A. Lococo
COUNSEL: Peter R. Jervis and P. John Landry, for the Applicant
Doug Hunt, Q,C. and Andrew Burns, for the Respondent
HEARD: By written submissions
E N D O R S E M E N T – C O S T S
[1] In an oral decision on December 7, 2011 after a hearing lasting two full days, I dismissed SeaWorld Parks & Entertainment LLC’s motion that Marineland of Canada Inc. be found in contempt of an order of this court dated July 5, 2011.[^1] That order granted SeaWorld possession of a killer whale located at Marineland’s facilities in Niagara Falls and directed Marineland’s co-operation in the whale’s transport to the United States. The question of costs was left to be determined in a manner to be arranged by the parties through the trial co-ordinator.
[2] Nothing more was heard from the parties until almost a year later, when the trial co-ordinator was advised in November 2012 that the parties had not agreed on costs, and that a determination by the court would be required. Both parties suggested written submissions. As well, SeaWorld requested (opposed by Marineland) that a hearing also be convened to allow oral submissions once written submissions had been exchanged. The parties were directed to exchange written submissions consisting of a costs outline plus additional written submissions not to exceed five pages. A decision on whether oral submissions would also be required was deferred until after the written submissions were received.
[3] Written submissions were subsequently received from Marineland’s counsel on January 30. 2013 and SeaWorld’s counsel on March 12, 2013. Counsel complied with at least the letter of the court’s directions as to the length of the written submissions, although given the size of the type font in places I was fortunate to have a magnifying glass on hand. The submissions for both parties also included a number of attachments, which in the case of SeaWorld ran to some seven substantial volumes.
[4] Subrule 57.01(7) of the Rules of Civil Procedure[^2] directs the court to devise the simplest, least expensive and most expeditious process for fixing costs, and provides the court with specific authority to fix costs after receiving written submissions, without the attendance of the parties. Having reviewed the written costs submissions and supporting material, I am satisfied that both parties have had an ample opportunity to put their positions before the court, and that additional oral submissions are not required.
[5] In their written submissions, each party have requested costs from the other party. Marineland is requesting full indemnity costs of over $252,000. SeaWorld is requesting substantial indemnity costs of over $269,000. SeaWorld’s costs claim included disbursements for U.S. legal fees of over $120,000 incurred to defend actions brought by Marineland in U.S. courts which, if successful, would have impeded the transport of the killer whale to the United States.
[6] The successful party on the contempt motion is presumptively entitled to its costs.[^3] However, the court has the authority to deny the successful party its costs, as well as the power to award costs against the successful party in a proper case.[^4] SeaWorld argued that I should exercise that authority and order Marineland to pay Seaworld costs in this case. SeaWorld relied in particular on Marineland’s conduct in attempting to impede compliance with this court’s July 2011 order, including the legal actions brought by Marineland in the United States.
[7] Having considered SeaWorld’s submissions, I am not satisfied that I should depart from the presumptive result that SeaWorld should be ordered to pay Marineland’s costs. In order to succeed on a contempt motion, the moving party must meet the high onus of establishing contempt beyond a reasonable doubt. I dismissed SeaWorld’s motion because I found that SeaWorld had not met that onus. In particular, I found that I was left in reasonable doubt in this case as to whether Marineland’s attempts to pursue what it perceived to be its legal rights in a foreign jurisdiction constituted contempt of the order of this court. While I stated elsewhere in my oral reasons that Marineland had skated close to the line, I am not satisfied that Marineland’s conduct was so egregious as to justify ordering them to pay the costs of the unsuccessful moving party on the contempt motion, nor does it justify denying Marineland its costs.
[8] Marineland requested that SeaWorld be ordered to pay its costs on a full indemnity basis or at least a substantial indemnity basis. In particular, Marineland argued that given the nature of contempt proceedings, the paramount considerations were the principle of indemnity, reasonable expectations of the party and the importance of the issues,[^5] which should ordinarily attract an award of at least substantial indemnity costs to the successful defending party. Marineland also relied on SeaWorld’s alleged failure to comply with all necessary procedural requirements for the granting of a contempt order as justifying at least a substantial indemnity costs order.
[9] After considering Marineland’s submissions, I have concluded that the costs award in favour of Marineland should be on a partial indemnity basis. Substantial indemnity costs are intended to be awarded on an exceptional basis, saved for extenuating circumstances such as situations where there has been egregious conduct or where the motion was brought unreasonably. [^6] I do not consider that SeaWorld’s conduct rose to the level of justifying an award of substantial indemnity costs. In making this determination, I have also taken into account Marineland’s conduct, including its unsuccessful attempts to avoid compliance with the July 2011 order of this court once that order was upheld by the Court of Appeal in September 2011. While Marineland’s conduct did not merit a finding of contempt or denial of its costs, I find it somewhat disingenuous in all the circumstances for Marineland to suggest that SeaWorld’s conduct merits a substantial indemnity costs award against it. In my view, the contempt motion although unsuccessful was reasonably brought by SeaWorld, and I have no criticism to offer for the way SeaWorld conducted the motion.
[10] After reviewing the costs outlines filed by the parties, I have concluded that in all the circumstances, a partial indemnity costs award to Marineland of $100,000 would be appropriate in this case. I have no reason to question the quantum of the legal costs incurred by Marineland given the potentially serious consequences of an adverse finding. However, I consider that the amount I am awarding to more appropriately reflect the amount that SeaWorld should reasonably expect to pay in all the circumstances, including the respective conduct of the parties.
[11] Accordingly, an order will issue requiring SeaWorld to pay Marineland’s costs of the contempt motion on partial indemnity basis, fixed at $100,000 inclusive of disbursements and tax, payable within 30 days.
The Honourable Mr. Justice R.A. Lococo
Released: April 2, 2013
v. Marineland of Canada Inc., 2013 ONSC 1930
COURT FILE NO.: 52783/11 (St. Catharines)
DATE: 2013/04/02
SUPERIOR COURT OF JUSTICE - ONTARIO
BETWEEN:
SeaWorld Parks & Entertainment LLC
Applicant
- and -
Marineland of Canada Inc.
Respondent
BEFORE: The Honourable Mr. Justice R.A. Lococo
COUNSEL: Peter R. Jervis and P. John Landry, for the Applicant
Doug Hunt, Q.C. and Andrew Burns, for the Respondent
ENDORSEMENT – COSTS
Lococo J.
Released: April 2, 2013
[^1]: See SeaWorld Parks & Entertainment LLC v. Marineland of Canada Inc., 2011 ONSC 4084; aff’d 2011 ONCA 616.
[^2]: R.R.O. 1990, Reg. 194.
[^3]: See Bell Canada v. Olympia & York Developments Ltd., 1994 239 (ON CA), [1994] O.J. No. 343, 17 O.R. (3d) 135 (C.A.) at para. 21.
[^4]: Rules of Civil Procedure, supra, subrule 57.01(2).
[^5]: Rules of Civil Procedure, supra, subrules 57.01(0.a), 57.01(0.b), and 57.01(d).
[^6]: Empire Life Insurance Co. v. Krystal Holdings Inc., [2009] O.J. No. 1095 (S.C.) at para 19.