SUPERIOR COURT OF JUSTICE - ONTARIO

Continental Casualty Company, 2013 ONSC 5291

COURT FILE NO: CV-13-472914

DATE: 20130815

RE:

OHL Construction Canada and Fomento de Construcciones
Y Contratas Canada Limited Partnership

Plaintiffs

• and -

Continental Casualty Company and Advanced Construction Techniques Ltd.

Defendants

BEFORE: The Honourable Mr. Justice Stephen E. Firestone

COUNSEL:
Harvey J. Kirsh, for the Plaintiffs

Andrew Heal, for the Defendants

HEARD: Written Submissions

COSTS ENDORSEMENT

[1] By written reasons released June 25, 2013 the defendants’ Rule 21 motion was dismissed. I indicated that if costs could not be agreed upon, I would receive written submissions with a costs outline following which I would fix costs. I have now received both sides’ submissions.

[2] Costs are within the discretion of the Court: Courts of Justice Act, s.131 (1). The Court has a broad discretion when determining the issue of costs. Rule 57.01(1) sets out the factors the Court may consider in awarding costs.

[3] I have reviewed the costs outline submitted by counsel. I have considered the factors enumerated under Rule 57, including the time spent, the results achieved, the complexity of the matter, as well as the application of the principle of proportionality to the circumstances here: Rule 1.04 (1).

[4] Furthermore, I have taken into account the principles set forth by the Court of Appeal in Boucher v. Public Accountants Counsel for Ontario, 2004 14579 (ON C.A.) 71 O.R. (3d) 291 (C.A), specifically that the overall objective of fixing costs is to fix an amount that is fair and reasonable for the unsuccessful party to pay in the particular circumstances, rather than an amount fixed by actual costs incurred by the successful litigant. A successful party is entitled to costs unless there are very good reasons not to award such costs: Schreiber v. Mulroney, 2007 31754 (ON SC), [2007] O.J. No. 3191 (Sup.Ct.) at para 2.

[5] The plaintiffs argue it was patently unreasonable for the defendants to bring this Rule 21 motion where defendants’ counsel was unable to cite a single case authority supporting their position. They further argue that there is no substance to the argument that this motion was brought on a “novel” point of law.

[6] The plaintiff points out that there was a lot at stake for both parties on this motion. They also highlight the fact that the defendants did not give any notice of their intent to withdraw their motion for a “stay” until the actual hearing of the matter.

[7] The defendants, on the other hand, argue that this case is completely novel given that there was no allegation about bad faith; the question raising whether pleaded conduct is sufficient to oust a limitation clause.

[8] The defendants’ position is that since the issues on this motion will be decided at trial there should be no costs payable or in the alternate, that only partial indemnity costs should be awarded to the plaintiff in the cause. The defendants argue that the novelty of the legal issue in this case is a valid basis for exercising my discretion to award no costs.

[9] After considering the written submissions, in my view, costs should be awarded in this matter.

[10] Pursuant to Rule 21, a claim will only be struck if it is “plain and obvious, assuming the facts pleaded to be true, that the pleading discloses no reasonable cause of action”. The moving party was aware of this high burden when they decided to bring this motion. I do not, however, agree with the plaintiffs’ position that it was “patently unreasonable” for the defendants to have brought this motion.

[11] Given the complexity of the matter, the result achieved and the experience of counsel, I order that partial indemnity costs of the motion in the all-inclusive sum of $16,500 be awarded to the plaintiffs to be paid within 30 days.

Firestone J.

DATE: August 15, 2013