SUPERIOR COURT OF JUSTICE – ONTARIO

COURT FILE NO.: CV-06-CV319707
MOTION HEARD: NOVEMBER 8, 2012

RE: Imperial Oil Limited and Imperial Oil, a partnership of Imperial Oil Limited and McColl-Frontenac Petroleum Inc., plaintiffs

AND:

The Corporation of the Town of Oakville, Joseph Benjamin Rutledge, Donald B. Rutledge, Squire Root Investments Limited, Howard Allan Burnstein, Jo-Anne Ethel Burnstein, Chisholm Educational Centres Inc., 535698 Ontario Limited, ServiceMaster Clean and Service Master of Oakville, defendants

BEFORE: Master R.A. Muir

COUNSEL: Natalie K. Mullins for the moving parties/plaintiffs

Scott E. Hamilton for the responding party/defendant The Corporation of the Town of Oakville

REASONS FOR DECISION - COSTS

[1] These reasons for decision are in respect of the costs of a motion brought by the plaintiffs pursuant to Rules 31.06 and 34.15 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (the “Rules”).The plaintiffs sought an order requiring the defendant The Corporation of the Town of Oakville (“Oakville”) to answer undertakings and questions refused on its representative’s examination for discovery. A number of the issues on this motion were resolved prior to argument. However, the parties were unable to resolve several of the plaintiff’s production requests and those issues were argued before me on November 8, 2012.

[2] In my reasons for decision dated December 5, 2012, I made an order that Oakville produce to the plaintiffs several documents it had previously refused to produce. I concluded, with one exception, that Oakville had improperly refused such production. In those reasons, I also requested that the parties provide the court with written costs submissions. I have now reviewed and considered those costs submissions.

[3] The plaintiffs seek costs in the amount of $15,277.72. They describe this amount as based on a scale slightly above a partial indemnity basis. Oakville takes the position that there should be no costs order. Alternatively, Oakville submits that a costs order in the range of $3,000.00 to $3,500.00, plus HST, would be fair and reasonable in the circumstances.

[4] The court’s general authority to award costs as between parties to litigation is found in section 131(1) of the Courts of Justice Act, R.S.O. 1990, c. C.43, which provides that costs are in the discretion of the court. Rule 57.01(1) sets out a non-exhaustive list of factors the court is to consider when awarding costs. Rule 57.03(1) deals with the costs of interlocutory motions and provides that as a general rule the court should fix the costs of a motion and order that they be paid within 30 days. Rule 1.04(1.1) is also applicable. It requires the court, when applying the Rules, to make orders that are proportionate to the importance and complexity of the issues and to the amount involved in the proceeding. In general terms, the overall objective for the court is to fix an amount that is fair and reasonable for the unsuccessful party who generally must pay the costs of the successful party. See Zesta Engineering Ltd. v. Cloutier, 2002 25577 (ON CA), [2002] O.J. No. 4495 (C.A.) at paragraph 4. In Clarington (Municipality) v. Blue Circle Canada Inc., 2009 ONCA 722 the Court of Appeal stated as follows at paragraph 52:

Rather than engage in a purely mathematical exercise, the judge awarding costs should reflect on what the court views as a reasonable amount that should be paid by the unsuccessful party rather than any exact measure of the actual costs of the successful litigant.

[5] These are the factors and principles I have considered in determining the appropriate costs order in the circumstances of this motion.

[6] The plaintiffs were largely successful on this motion. I see no reason to depart from the usual practice of awarding costs to the successful party. The plaintiffs obtained all of the production they were looking for other than certain portions of what was described as the “Altus Letter”. This was not a straightforward discovery motion based on relevance. The legal issues on this motion were somewhat complex and required the parties to carry out a fair amount of legal research and deliver factums and authorities. Furthermore, it is my view that the issues on this motion were of significant importance to the plaintiffs, given the substantial amounts involved in this action and the central role that expert evidence will likely play at trial.

[7] However, it is also my view that the amounts requested by the plaintiffs are somewhat excessive in the circumstances. First, I see no basis for an award of costs on an elevated scale. As the Court of Appeal stated in Clarington at paragraph 40, “[a]part from the operation of Rule 49.10, elevated costs should only be awarded on a clear finding of reprehensible conduct on the part of the party against which the costs award is being made” [emphasis in the original]. In my view, none of Oakville’s conduct described by the plaintiffs in their costs submissions comes anywhere close to this level.

[8] Second, the plaintiffs’ partial indemnity costs appear to be somewhat excessive for a motion of this nature. Although there was a level of complexity to this motion, it nevertheless remains a production motion based on what the plaintiffs described in their costs submissions as “clear authority”. I also note that Oakville’s costs outline sets out partial indemnity fess of approximately 50% of the amount identified by the plaintiffs in their costs outline.

[9] I have therefore concluded that there should be a reduction in the amount of partial indemnity costs requested by the plaintiffs on the basis of their lack of complete success and what I view as the somewhat excessive amounts being claimed. Having considered the factors and principles set out above, it is my view that it is fair and reasonable that Oakville pay the plaintiffs’ partial indemnity costs of this motion fixed in the amount of $7,500.00, inclusive of HST and disbursements, payable within 30 days.

Master R. A. Muir

Date: January 15, 2013