SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: CV-12-449220

DATE: 20131118

RE: R & G DRAPER FARMS (KESWICK) LTD.

Applicant

• and -

1758691 ONTARIO INC. c.o.b. ATV FARMS

Respondent

BEFORE: The Honourable Madam Justice Wendy Matheson

COUNSEL:
Morris Manning, Q.C. and Theresa R. Simone,
for the Applicant

J.F. Lalonde,
for the Respondent

HEARD: Written Submissions

COSTS ENDORSEMENT

[1] This costs ruling arises from my decision released September 16, 2013, in which I granted the Applicant’s motion to strike out certain affidavit evidence, but dismissed its Application regarding the arbitral award made by Robert E. Goldman dated December 20, 2011.

[2] The Respondent, as the successful party on the Application, seeks its costs on a substantial indemnity basis in the amount of $28,066.88. The Bill of Costs also shows the amount of $17,914.39 on a partial indemnity basis. These totals include amounts relating to the Applicant’s motion to strike.

[3] Most significantly, the Respondent submits that as the successful party on the Application it should have its costs, and the amount sought is fair and reasonable. Among other reasons, the Respondent continues to take on the role of defending the DRC process, saying that absent a substantial costs award other parties could be deterred from using that process. I disagree with this particular basis for costs, especially increased costs on a substantial indemnity scale. This application and motion, and the related costs, depend on its own specific history. Other participants in the DRC dispute resolution process should not conclude that the costs outcome here would necessarily be relevant to any other DRC proceedings.

[4] The Applicant asks that there be no costs of the Application because it raised novel issues, because clarification was needed on certain issues and because it was reasonable to bring the proceeding. It further submits that about $9,000 of the costs claimed by the Respondent relate either to the motion, which the Respondent lost, or to other non-recoverable items.

[5] As the successful party on the motion to strike, the Applicant seeks it costs of the motion. It observes that the improper evidence led to significant additional steps and complexity, especially Mr. Webber’s evidence. I agree. Mr. Webber’s choice to participate in this dispute has added significantly to the costs. The court material on the issues on the motion was comparable to the Application material itself and included a lengthy additional factum among other things.

[6] The Applicant also seeks costs of the motion on a substantial indemnity basis, totaling $48,182.09. The Bill of Costs provides the amount on a partial indemnity basis as well, totaling $34,130.84.

[7] With respect to scale, I am not inclined to award costs to either party on a substantial indemnity scale. The conduct at issue does not rise to the level of reprehensible, and there are no offers of settlement to be factored in.

[8] I am also not inclined to refuse costs of the Application on the basis of novelty. The Respondent should have its costs on a partial indemnity scale, removing those items that relate to the motion.

[9] The Applicant should also have its costs of its motion to strike, on a partial indemnity scale. Although I accept that the motion was important to the Applicant, the amount claimed is much more than I am prepared to allow on a partial indemnity scale. One measure of what is fair and reasonable is the amount spent by the Respondent, which is about $8,000. The Applicant’s costs would reasonably be higher.

[10] In that the amounts I would fix for each successful party are not materially different from one another, I make no order as to costs. Each party shall bear its own costs.

W. Matheson J.

DATE: November 18, 2013