Superior Court of Justice - Ontario

COURT FILE NO.: 12-54674A2
DATE: 20140311

RE: Allianz Global Risks US Insurance Company et al, Plaintiffs

AND:
The Attorney General of Canada et al, Defendants

BEFORE: Hackland R.S.J.

COUNSEL:
Sharon Johnston and Peter Nostbakken, for the Attorney General (moving party)

Timothy Trembley, for the Plaintiffs

Robert J. Fenn, for NAV Canada

COSTS ENDORSEMENT

[1] The plaintiffs were successful in opposing the Attorney-General’s motion to strike portions of the Statement of Claim under Rule 21.01 and 25.11. The Court’s reasons are reported at Allianz Global Risks US Insurance Company v. The Attorney General of Canada, [2013] O.J. No. 5272.

[2] There is no dispute that the plaintiffs are entitled to their costs of the motion on a partial indemnity scale. The plaintiffs claim fees of $19,586. The Attorney General submits that fees in the range of $10-12,000 is more appropriate and in keeping with the over-arching principle that the Court should fix an amount that is fair and reasonable in the circumstances, see Boucher v. Public Accountants Council for the Province of Ontario (2004), 2004 14579 (ON CA), 71 O.R. (3d) 291 (Ont. C.A.) at para [26].

[3] Keeping in mind the Rule 57.01(1) considerations, I note the following:

• The main issue in the motion was the jurisprudentially complex issue of whether Transport Canada, in its capacity as regulator or aeronautics in Canada, owed a duty of care to the plaintiffs. This is also a matter of national importance. The research and the facta filed by each side was necessarily quite extensive.

• I follow the case law that suggests partial indemnity costs are 60% of the full indemnity rate (see Hanis v. University of Western Ontario (2006), 2006 23155 (ON SC), 53 C.C.E.L. (3d) 86 (Ont. S.C.J.).).

• The plaintiffs plead some misinformation about the applicable regulations and Transport Canada policies, which was a time consuming diversion away from the key issues. On the other hand the Attorney General’s supplementary materials and its reluctance to provide the plaintiffs with the so called TP7775E publication were unhelpful as were the repeated references or accusations about the plaintiffs “repeated misrepresentations” which were in the costs submissions and the Attorney General’s factum.

• The hourly rates claimed are reasonable and, in general, so was the bill of costs submitted.

[4] I am of the view that the plaintiffs should be awarded costs which I fix in the sum of $15,000 plus applicable HST. In addition, I award the plaintiffs their disbursements as claimed ($2,077.00), plus applicable HST.

Mr. Justice Charles T. Hackland

Released: March 11, 2011

v. Canada (Attorney General), 2014 ONSC 1552

COURT FILE NO.: 12-54674A2

DATE: 20140311

SUPERIOR COURT OF JUSTICE - ONTARIO

BETWEEN:

Allianz Global Risks US Insurance Company et al

** and**

The Attorney General of Canada et al

COSTS ENDORSEMENT

HACKLAND R.S.J.

** Released: March 11, 2014**