Ontario Superior Court of Justice
Court File No.: 09-CV-381919CP
Date: 20140313
ONTARIO
SUPERIOR COURT OF JUSTICE
Between:
TIM MAGILL
Plaintiff
– and –
EXPEDIA, INC.
Defendant
Henry Juroviesky, for the Plaintiff
Jeffrey S. Leon and Kirsten A. Thoreson, for the Defendant
Proceeding under the Class Proceedings Act, 1992
HEARD: In Writing
Perell, J.
Reasons for Decision - Costs
[1] By reasons reported as Magill v. Expedia, Inc., 2014 ONSC 642, I decided a refusals motion in favour of the Plaintiff, Tim Magill.
[2] The refusals motion arose in the context of a pending summary judgment motion by the Defendant, Expedia, Inc., in this certified class action under the Class Proceedings Act, 1992, S.O. 1992, c.6.
[3] Mr. Magill now seeks costs of $14,696.25, all inclusive, on a partial indemnity basis.
[4] Expedia submits that the quantum of costs should be not more than $5,000 inclusive and that the costs should be in the cause and not forthwith.
[5] On its motion for summary judgment, Expedia carefully framed the issues to be determined, and on the basis of relevance, it refused to have its deponent answer certain questions about the calculation of the Services Fee. There was also a refusal about the extent to which Expedia should provide sample contracts.
[6] On the refusals motion, I stated that Expedia’s relevance argument was clever and that it had some traction, because in an adversary system, especially one that includes a procedure for summary judgments, there was nothing wrong and it was rather to be expected that a party would attempt to precisely focus the litigation on a dispositive issue.
[7] However, I decided that Expedia’s clever argument failed for four reasons, most of them associated with the principle that justice must be done and also be seen to be done.
[8] I felt that if Expedia ultimately succeeds on the merits of its summary judgment motion, which remained to be determined, there should be no appearance that its success was due to clever litigation tactics rather than based on the merits of its case.
[9] In these circumstances, I think that there is merit to Expedia’s argument that costs should be in the cause and wait for the outcome of the summary judgment motion.
[10] I also agree that the costs claimed are excessively high for this particular refusals motion.
[11] I, therefore, award Mr. Magill his costs of the refusals motion in the cause on a partial indemnity scale fixed at $8,000, all inclusive.
Perell, J.
Released: March 13, 2014
COURT FILE NO.: 09-CV-381919CP
DATE: 20140313
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
TIM MAGILL
Plaintiff
‑ and ‑
EXPEDIA, INC.
Defendant
Proceeding under the Class Proceedings Act, 1992
REASONS FOR DECISION - COSTS
Perell, J.
Released: March 13, 2014