SUPERIOR COURT OF JUSTICE - ONTARIO

Court File No.: CV-12-443270
Date: 20131003

Parties

RE: Lixo Investments Ltd.
Plaintiff

• and -

Gowling, Lafleur, Henderson and Guy Poitras
Defendants

Before: The Honourable Mr. Justice Stephen E. Firestone

Counsel:
Charles Wagman, for the Plaintiff

Angus T. McKinnon, for the Defendants

Heard: Written Submissions

COSTS ENDORSEMENT

[1] On July 26, 2013 by way of written reasons, I ordered that the plaintiff’s action be stayed given that Quebec has the clearest connection to the matters at issue in the action.

[2] In those reasons I indicated that if the parties could not agree on costs they could make written submissions.

[3] 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 when determining costs.

[4] A successful party is entitled to costs in the absence of a very good reason(s) not to award them. (Schreiber v. Mulroney, 2007 31754 (ON SC), [2007] O.J. No. 3191 (Sup.Ct.) at para. 2)

[5] 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. (Boucher v. Public Accountants Counsel for Ontario, 2004 14579 (Ont. C.A.)

[6] The defendants, who were successful on this motion, seek their costs on a partial indemnity basis in the sum of $35,536.54 inclusive of taxes and disbursements. These costs they argue, should have been within the plaintiff’s reasonable expectation.

[7] They argue that the court found that virtually all relevant connecting factors pointed to Quebec as the appropriate forum. Lixo, they state, knew (or ought to have known) that Gowlings’ parties would oppose Ontario as the proper forum.

[8] This motion, they submit, required substantial affidavits and cross-examinations for which Mr. Poitras required an interpreter. The exhibits attached to the affidavits included lengthy documents from the underlying Quebec proceedings that had to be translated into English.

[9] They highlight the fact that in this case the plaintiff sought $5 million dollars in damages, that the motion was moderately complex and that the plaintiff made serious allegations against the Gowlings’ parties attacking their professional competence, raising many of the same allegations which were unsuccessful in the Quebec proceeding.

[10] The plaintiff argues that the court found against the defendants on the issue of jurisdiction simpliciter having found two presumptive factors which were not rebutted.

[11] They argue that the partial indemnity rate requested by counsel is too high and is not what the plaintiff could reasonably have expected to pay if unsuccessful.

[12] They submit that this motion was not complex given that the facts were not contested and the law at issue was clear. As well, at no time did they attack the integrity of the defendants. This action was not, in their view, duplicative as there is no action in Quebec at this time that deals with the issues raised in the litigation.

[13] The plaintiff points out that this motion took one half day to argue; cross-examinations were completed in a morning, and the defendants did not file a pleading. As well, they argue that the amount in issue in the action should not be a factor given that the action was not dismissed and the plaintiff is free to proceed with the same action in Quebec.

[14] They, therefore, submit that costs payable should be $10,000.00 plus HST and disbursements.

[15] Regarding disbursements, the plaintiff argues that the cost of the interpreter used on Mr. Poitras’ cross-examination should not be allowed given that he routinely argues cases in English and, therefore, was not necessary.

[16] I have considered the submissions of counsel as well the relevant legal principles. Given the complexity of the matter, the result achieved and experience of counsel, I order partial indemnity costs of this motion in the all-inclusive sum of $24,000.00 payable by the plaintiff to the defendants within 30 days.

Firestone J.

DATE: October 3, 2013