SUPERIOR COURT OF JUSTICE – ONTARIO

COMMERCIAL LIST

RE: Daniel Carlos Lusitande Yaiguaje, Benancio Fredy Chimbo Grefa, Miguel Mario Payaguaje Payaguaje, Teodoro Gonzalo Piaguaje Payaguaje, Simon Lusitande Yaiguaje, Armonado Wilmer Piaguaje Payaguaje, Angel Justino Piaguaje Lucitante, Javier Piaguaje Payaguaje, Fermin Piaguaje, Luis Agustin Payaguaje Piaguaje, Emilio Martin Lusitande Yaiguaje, Reinaldo Lusitande Yaiguaje, Maria Victoria Aguinda Salazar, Carlos Grefa Huatatoca, Catalina Antonia Aguinda Salazar, Lidia Alexandria Aguinda Aguinda, Clide Ramiro Aguinda Aguinda, Luis Armando Chimbo Yumbo, Beatriz Mercedes Grefa Tanguila, Lucio Enrique Grefa Tanguila, Patricio Wilson Aguinda Aguinda, Patricio Alberto Chimbo Yumbo, Segundo Angel Amanta Milan, Francisco Matias Alvarado Yumbo, Olga Gloria Grefa Cerda, Narcisa Aida Tanguila Narvaez, Bertha Antonia Yumbo Tanguila, Gloria Lucrecia Tanguila Grefa, Francisco Victor Tanguila Grefa, Rosa Teresa Chimbo Tanguila, Maria Clelia Reascos Revelo, Heleodoro Pataron Guaraca, Celia Irene Viveros Cusangua, Lorenzo Jose Alvarado Yumbo, Francisco Alvarado Yumbo, Jose Gabriel Revelo Llore, Luisa Delia Tanguila Narvaez, Jose Miguel Ipiales Chicaiza, Hugo Gerardo Camacho Naranjo, Maria Magdalena Rodriguez Barcenes, Elias Roberto Piyahuaje Payahuaje, Lourdes Beatriz Chimbo Tanguila, Octavio Ismael Cordova Huanca, Maria Hortencia Viveros Cusangua, Guillermo Vincente Payaguaje Lusitante, Alfredo Donaldo Payaguaje Payaguaje And Delfin Leonidas Payaguaje Payaguaje, Plaintiffs

AND:

Chevron Corporation, Chevron Canada Limited and Chevron Canada Finance Limited, Defendants

BEFORE: D. M. Brown J.

COUNSEL:
A. Mark, C. Hunter, Q.C., A. Kirker, Q.C., R. Frank, for the Moving Party Defendant, Chevron Corporation

B. Zarnett, S. Kauffman and P. Kolla, for the Moving Party Defendant, Chevron Canada Limited,

A. Lenczner, Q.C. and B. Morrison, for the Responding Party Plaintiffs

HEARD: November 29 and 30, 2012, and January 25, 2013; subsequent cost submissions.

REASONS FOR DECISION - costs

[1] By Reasons dated May 1, 2013 (2013 ONSC 2527), I stayed this action, on terms. The parties have filed their comprehensive written cost submissions.

[2] This was a 2.5 day interlocutory motion heard on the Commercial List. The defendant, Chevron Corporation, seeks partial indemnity costs in the amount of $421,850.72. The defendant, Chevron Canada Limited, seeks partial indemnity costs of $280,331.26. The plaintiffs submitted that no costs should be awarded for the motions or, alternatively, if any costs were awarded, they should be awarded to the plaintiffs

[3] In considering the costs of a motion a court must take into account the factors enumerated under Rule 57, including the time spent, the result achieved, and the complexity of the matter, as well as the application of the principle of proportionality: Rule 1.04(1). In addition, the court must consider the principles set forth by the Court of Appeal in Boucher v. Public Accountants Council for the Province of Ontario (2004), 2004 14579 (ON CA), 71 O.R. (3rd) 291 (C.A.) and Davies v. Clarington (Municipality) (2009), 2009 ONCA 722, 100 O.R. (3d) 66 (C.A.), specifically that the overall objective of fixing costs is to fix an amount that is fair and reasonable for an unsuccessful party to pay in the particular circumstances, rather than an amount fixed by actual costs incurred by the successful litigant.

[4] The defendants’ motions raised, in essence, two main issues, each of which was argued with vigour and at length. First, did this Court possess jurisdiction over these defendants? The defendants argued that the Court did not. I disagreed and accepted the plaintiffs’ submissions on the point. Second, did the defendants have assets in Ontario and, more specifically, as a matter of law and of fact were the assets of Chevron Canada to be treated as those of Chevron Corporation for purposes of exigibility under the Foreign Judgment, if recognized? The plaintiffs submitted that they should be so treated. I did not accept their argument. In issuing a stay on terms I wrote:

The evidence disclosed that there is nothing in Ontario to fight over. Ontario courts should be reluctant to dedicate their resources to disputes where, in dollar and cents terms, there is nothing to fight over. In my view, the parties should take their fight elsewhere to some jurisdiction where any ultimate recognition of the Ecuadorian Judgment will have a practical effect.

[5] From this brief review of the key issues raised on the motions, I conclude that although the defendants obtained a stay, in substantive terms success on the motion was mixed. Moreover, the defendants’ arguments on the question of jurisdiction and service ex juris raised a novel issue, at least in the sense that no party could point me to a binding authority on the point. In those circumstances, I conclude that the fairest and most reasonable disposition of the issue of costs would be to order no costs to any party.

D. M. Brown J.

Date: June 6, 2013