Endorsement

COURT FILE NO.: CV-09-380908A1

DATE: 20140221

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: David Birt, Plaintiff

– AND –

The City of Toronto, Defendant

– AND –

Maple-Crete Inc., Third Party

BEFORE: Justice E.M. Morgan

COUNSEL: Matthew MacIsaac, for the Third Party

Andy Jairam, for the Defendant

HEARD: January 17, 2014, with written submissions on costs

ENDORSEMENT

[1] On January 17, 2014, I released my endorsement in this motion. The Third Party, Maple-Crete Inc. (“Maple”), brought a summary judgment motion against the Defendant, the City of Toronto (“Toronto”). I requested written submissions on costs, which I have now received from counsel for both parties.

[2] Maple was unsuccessful on the motion. Toronto therefore deserves its costs of the motion on a partial indemnity basis.

[3] Counsel for Toronto seeks just shy of $20,000 for the motion. Counsel for Maple submits that this amount is too high, and that $10,000 would be a more reasonable costs award.

[4] Fixing the quantum of costs is a discretionary power conferred by section 131 of the Courts of Justice Act, RSO 1990, c.43. There are a number of factors listed in Rule 57.01 of the Rules of Civil Procedure that may be taken into account in exercising this discretion.

[5] One such factor is the complexity of the matter. Counsel for Toronto submits that this was a complicated motion, involving issues of contract interpretation, determining whether the applicable standard of care is that of gross negligence, and questions of contribution and indemnity. Counsel for Maple suggests that, while the issues were not simple, they were more straightforward than Toronto’s counsel describes.

[6] The main action is a slip-and-fall claim. The Third Party claim is between Toronto, on whose street the Plaintiff is alleged to have slipped, and Maple, the snow and ice removal contractor responsible for clearing this street. The issues in the motion did entail examination of the contract between those two parties and a review of a certain amount of case law exploring the applicable standard of care, but in the end summary judgment was denied because the issue of fault will have to be decided at the trial involving the Plaintiff. The absence of the Plaintiff’s evidence in this motion made summary judgment inappropriate.

[7] In my view, Toronto exaggerates the complexity of the matter, while Maple exaggerates its predictability and lack of complexity. The court is required to consider what is “fair and reasonable” in fixing costs, having regard to the reasonable expectations of the parties. Boucher v Public Accountants Council (Ontario), 2004 14579 (ON CA), 2004 CarswellOnt 2521, at paras 26, 38. The successful party must be fair in which it charges to the unsuccessful one, who must in turn be reasonable in its expectations of what it will be liable to pay.

[8] I would exercise my discretion to fix costs at a mid-point between the two parties. Maple shall pay costs to Toronto in the amount of $15,000, inclusive of disbursements and HST.

Morgan J.

Date: February 21, 2014