SUPERIOR COURT OF JUSTICE – ONTARIO
COURT FILE NO.: 53130/12 (St. Catharines)
DATE: 2013/10/07
RE: Marineland of Canada Inc. (Plaintiff) v. Dylan Powell (Defendant)
BEFORE: The Honourable Mr. Justice R.A. Lococo
COUNSEL: Andrew D. Burns, for the Plaintiff
Jan D. Weir, for the Defendant
HEARD: By written submissions dated September 6, 2013
E N D O R S E M E N T – C O S T S
I. Background
[1] Marineland of Canada Inc. operates a family-oriented amusement park on a seasonal basis in Niagara Falls. Captive marine and land animals are located on that property.
[2] During 2012 and 2013, there were a series of protests in the vicinity of the Marineland property and elsewhere under the auspices of an unincorporated animal protection group called Marineland Animal Defence, known by the initials MAD. MAD opposes the public display of captive marine animals for profit. Dylan Powell is the directing mind of MAD, to the extent that it has one.
[3] In December 2012, Marineland commenced an action against Dylan Powell, alleging a conspiracy to injure and other tortious conduct by Mr. Powell and his alleged co-conspirators. MAD together with nominal plaintiffs John Doe, Jane Doe and persons unknown were subsequently added as defendants. In this action, Marineland seeks injunctive relief and damages, as well as a declaration that the secondary picketing and other protest activities have resulted in the commission of tortious conduct against Marineland.
II. Motion for interim relief
[4] On August 2 and 8, 2013, I heard a motion by Marineland seeking relief by way of an interim injunction and mandatory orders, to be effective pending final determination of Marineland’s action. The requested relief would have placed significant restrictions on the ability of Mr. Powell to, among other things, (i) conduct or direct protests at or within 200 metres of the Marineland amusement park, or (ii) conduct or direct protests against, or interfere or communicate with, certain persons and entities connected with Marineland.
[5] In its motion, Marineland also sought similar interim relief against any representative, member or agent of MAD or anyone associated with them or supporting their position, referring to such relief as the “Doe order.” As well, Marineland sought an order that any persons associated with MAD who are provided with the Doe order identify themselves and provide an address for service to allow them to be served to the extent that becomes necessary. As a corollary to this relief, Marineland sought an order to compel Mr. Powell to attend for further examination to answer questions that he declined to answer on the advice of his counsel during the cross-examination on his affidavit. In particular, Mr. Powell declined to provide the names and contact information for the certain other individuals involved with MAD or the demonstrations against Marineland.
III. Interim relief granted
[6] In an oral decision on August 9, 2013, I granted an interim injunction against Mr. Powell, but imposed restrictions on his activities that were significantly narrower than those sought by Marineland. I declined to grant interim relief against other unidentified persons, the so-called Doe order, since I was not satisfied that such an order was necessary or justified on the evidence before me. I also declined to grant an order requiring Mr. Powell to attend for further examination, finding that the information sought was not required for the purpose of making an interim order of the limited nature that I decided was appropriate in the circumstances.
[7] As a guiding principle, the interim relief granted was directed principally toward unlawful and defamatory conduct as well as direct interference with the conduct of Marineland’s business. As well, it restrained demonstrations and other activities targeted at individuals and entities employed by or associated with Marineland. The interim order did not, however, restrain activities within 200 metres of Marineland property, as requested by Marineland, on the basis that a term of this nature would effectively prevent any demonstrations in the vicinity of the Marineland property. I found that such a term would therefore be an unwarranted restriction on the ability Mr. Powell and like-minded persons as a matter of public interest to communicate their opposition to the business of displaying captive marine animals.
[8] To some extent, the conduct covered by the interim injunction was already covered by undertakings previously given by Mr. Powell through his counsel. I found, however, that Mr. Powell’s success in complying with those undertakings has been less than complete, and that an interim injunction covering such matters was justified as part of the relief granted.
IV. Submissions on costs
[9] At the conclusion of my oral decision, I left the matter of costs to be determined following written submissions by the parties.
[10] In its submissions, Marineland requested costs on a partial indemnity basis, based on its substantial success on its motion for interim relief. Marineland filed a cost outline claiming fees of $24,400 plus HST, for a total of $27,572.
[11] Mr. Powell’s position is that he was the successful party in resisting Marineland’s request for the Doe order as well as the requested order for Mr. Powell to re-attend for examination. In addition, he was partially successful in resisting the requested interim injunction given that the terms of the relief granted were significantly narrower than those sought by Marineland. Mr. Powell argued that in these circumstances, he was entitled to recover some of his legal costs. He also argued that there should be no award of costs against public interest defendants since they provide a service to the public by introducing these ideas for debate. In the alternative, he argued that because of divided success there should be no order of costs to either party, or that a reduction from the amount claimed by Marineland was warranted.
V. Decision on costs
[12] After considering the parties’ submissions, I have concluded that Marineland is entitled to costs from Mr. Powell on a partial indemnity basis. However, I would not award the full amount claimed by Marineland.
[13] The successful party on a motion has a reasonable expectation of being awarded costs in the absence of special circumstances.[^1] In the usual case, costs of a contested motion are fixed and ordered payable within 30 days.[^2] The principal thrust of Marineland’s request for interim relief was to obtain a court order restraining unacceptable behaviour by Mr. Powell pending final determination of the action against him, and Marineland was successful to that extent. This relief was resisted by Mr. Powell and, in my view, there should be cost consequences for him in all the circumstances. While he gave undertakings covering some of the matters dealt with in the interim order, he declined to agree to any interim order restraining his activities. The motion brought was therefore necessary in order to obtain the relief sought. As well, while I am entitled to take into account Mr. Powell’s professed status as a public interest defendant, that status does not excuse him from costs consequences in the circumstances of this case.
[14] While a cost order in Marineland’s favour is justified, the amount awarded should be less than the full amount claimed. Given the results achieved, it is clear that Marineland overreached with respect to the extent of the relief sought. In particular, I declined to unduly restrain activities beyond the borders of Marineland property, declined to grant injunctive relief against unidentified parties, and declined to order Mr. Powell’s re-attendance to answer question about others involved in the demonstrations. In my view, these matters extended the time necessary to deal with the motion interim relief, justifying a reduction from the amount sought by Marineland.
[15] In light of the foregoing, and also taking into account what Mr. Powell could reasonably expect to pay in relation to the relief obtained, I fix Marineland’s costs at $10,000, inclusive of disbursements and tax, payable by Mr. Powell within 30 days.
The Honourable Mr. Justice R.A. Lococo
Released: October 7, 2013
2013 ONSC 6150
COURT FILE NO.: 53130/12 (St. Catharines)
DATE: 2013/10/07
SUPERIOR COURT OF JUSTICE - ONTARIO
BETWEEN:
Marineland of Canada Inc.
Plaintiff
- and -
Dylan Powell
Defendant
BEFORE: The Honourable Mr. Justice R.A. Lococo
COUNSEL: Andrew D. Burns, for the Plaintiff
Jan D. Weir, for the Defendant
ENDORSEMENT – COSTS
Lococo J.
Released: October 7, 2013
[^1]: See Bell Canada v. Olympia & York Developments Ltd. (1994), 1994 239 (ON CA), 17 O.R. (3d) 135 (C.A.) at para. 21.
[^2]: See paragraph 57.03(1)(a) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.