SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: CV-11-431831

RE: HARROWAND S.I. v. DEWIND TURBINES LTD., DEWIND INC., DAEWOO SHIPBUILDING & MARINE ENGINEERING CO. LTD., DSME TRENTON LTD., COMPOSITE TECHNOLOGY CORPORATION, BENTON WILCOXON and ANDREW LOCKHART

BEFORE: Master R. Dash

COUNSEL:
J. Gardner Hodder, for the plaintiff

Ira Nishisato and Katherine Menear, for the defendants Daewoo and DSME

Benton Wilcoxon, defendant in person

COSTS ENDORSEMENT

[1] This endorsement concerns costs of motions brought by each of Daewoo Shipbuilding & Marine Engineering Co. Ltd. (“Daewoo”), DSME Trenton Ltd. (“DSTN”) and Benton Wilcoxon (“Wilcoxon”) to set aside service ex juris of the statement of claim and to stay or dismiss the action based on absence of jurisdiction. Wilcoxon also moved to stay or dismiss the action based on the doctrine of forum non conveniens. All of the motions were dismissed. I found that although a number of grounds were raised by the plaintiff to found jurisdiction, only one ground gave rise to a presumptive connecting factor – that a contract made (and breached) in Ontario was connected to the dispute. I also determined that Wilcoxon had failed to establish that any other jurisdiction was a more appropriate forum than Ontario to try this action.

[2] The plaintiff having been successful on the motion is entitled to its costs and none of the parties submits to the contrary.

[3] I have received a costs outline and dockets from the plaintiff indicating full indemnity costs of $140,086 and claiming partial indemnity costs of $90,509. I have received responding submissions from Daewoo and DSTN. They do not contest the quantum of the costs incurred by the plaintiff[^1] although they submit that the costs payable by the defendants should be reduced on a number of grounds and that the costs be awarded severally as between Daewoo and DSTN jointly as to 2/3 and Wilcoxon as to 1/3. I have received no costs submissions from Wilcoxon (who is now self-represented) although prior to rendering my decision I had received a costs outline and dockets from his now former counsel indicating Wilcoxon’s substantial indemnity costs to be $51,562 and his partial indemnity costs to be $34,768.

[4] Although the plaintiff was successful in establishing one ground for jurisdiction (contract connected to Ontario), it was unsuccessful in establishing any one of the other three grounds raised (carrying on business in Ontario, statutory tort and forum of necessity), all of which increased the complexity of the motion and which had to be addressed by the defendants. Part of the costs claimed by the plaintiff were incurred in support of these arguments which were without merit. I agree with Daewoo and DSTN that a reduction in the plaintiff’s costs of approximately 20% should be made on that ground.

[5] I agree that time spent contacting foreign lawyers about an affidavit should be deducted since no such affidavits were served. I agree that the time spent by the plaintiff to revise its responding material as a result of the evidentiary challenge should not be chargeable since the defendants succeeded on that issue by having the plaintiff remove the impugned material.

[6] It appears from the dates that the plaintiff filed motion materials for a motion to set aside a registrar’s dismissal that the dockets relating to preparing motion and supplementary motion materials in December 2012 and April 2013 relate to the set aside motion and not the jurisdiction motion and cannot be costs payable by the defendants to this motion. By my calculation however, the hours clearly spent on the unrelated motion are less than the hours suggested by the defendants.

[7] The defendants suggest that the case conference appearances should not be chargeable on this motion because they were necessitated by the preliminary issue which resulted in the plaintiff revising its motion materials to exclude the impugned evidence. That may be true for the August 27/13 case conference, but the case conferences of June 27/13, September 24/13, November 28/13 and January 9/14 also dealt with other issues such as the defendants’ need for an order that they were not attorning to Ontario, the retaining and changing lawyers by Wilcoxon and his procrastination about including a motion based on forum non conveniens and the need to set and revise deadlines for delivery of motion materials.

[8] I have insufficient evidence about the “settlement meeting” of August 28/13 to conclude it is not chargeable as costs of the motion. Attempts to settle a motion should be included as part of the costs of the motion.

[9] I agree that the costs should be several as between Daewoo and DSTN on one hand as to 2/3 of the costs and Wilcoxon on the other as to 1/3, primarily because it was only Wilcoxon that raised the issue of forum non conveniens. I do not believe it is appropriate both to discount or apportion to Wilcoxon the time related to forum non conveniens and allocate costs on a several basis. In my view the allocation of costs on a several basis accounts for the time spent on forum conveniens.

[10] It is impossible to reduce the costs payable by the defendants for the above reasons with precision but I have made appropriate reductions based on my review of the dockets and the defendants’ submissions. I am also mindful that the fixing of costs is more than a mathematical exercise of multiplying chargeable hours by an appropriate rate. Rather I am to consider all appropriate factors, including those set out in rule 57.01 and fix costs that are fair and reasonable and within the reasonable expectations of the defendants.

[11] I am mindful that the motion was in the upper range of complexity. It was of great importance, since the plaintiff would have been unable to proceed with the action had the motions been successful. The plaintiff necessarily provided extensive motion materials. Although the defendants’ evidentiary materials were less extensive, all parties provided a detailed factum and authorities.

[12] In accordance with the above I have reduced the partial indemnity costs by $8,500 to account for time not chargeable to the defendants and then by a further 20% to account for the time spent on the unsuccessful grounds, added in disbursements and HST to come to total partial indemnity costs rounded off to $65,000. They will be payable $43,333 by Daewoo and DSTN and $21,667 by Wilcoxon. In my view those sums are fair and reasonable. They should be within the reasonable expectations of Wilcoxon whose own costs outline indicated partial indemnity costs of $34,768 and of Daewoo and DSTN who failed to provide their own costs outline and dockets.

ORDER

[13] I hereby order as follows:

(1) The plaintiff shall be paid within 30 days its costs of the motions to set aside service ex juris of the statement of claim and to stay or dismiss the action, fixed in the sum of $65,000 and payable as follows:

(a) $43,333.00 jointly and severally by the defendants Daewoo Shipbuilding & Marine Engineering Co. Ltd. and DSME Trenton Ltd., and

(b) $21,667.00 by the defendant Benton Wilcoxon.

Master R. Dash

DATE: June 6, 2014

[^1]: This is further supported by their failure to provide their own costs outline and dockets. In my endorsement of April 28, 2014 I had stated: “If the Daewoo defendants contest the quantum of the plaintiff’s costs, they must provide their own costs outline and redacted dockets.”