SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: CV-13-478165

DATE: 20140731

RE: DURVAL TERCEIRA, CESAR DANIEL AVERO AND JAMIE MELO,

AND:

UNIVERSAL WORKERS UNION, LABOURS INTERNATIONAL UNION OF NORTH AMERICA LOCAL 183 AND LABOURERS INTERNATIONAL UNION OF NORTH AMERICA

BEFORE: The Honourable Mr. Justice Stephen E. Firestone

COUNSEL:
Chris Donovan, for the plaintiffs

Debra Newell, for the defendant, Universal Workers Union, Labourers’ International Union of North America Local 183

Michael D. Wright, for the defendant, LIUNA

HEARD: September 20, 2013

costs ENDORSEMENT

[1] By way of written reasons released December 18, 2013 I dismissed LIUNA’s motion: Rule 21 motion.

[2] On the motion LIUNA sought an order that the plaintiffs are precluded from pursuing their claims regarding expulsion from membership in LIUNA because they failed to exhaust the internal appeal route. I found that it is desirable and necessary that such determination be made on the basis of a full evidentiary record.

[3] In the alternative LIUNA sought an order dismissing the part of the action challenging plaintiffs’ expulsion from membership in LIUNA because the Court has no jurisdiction over the subject matter of that part of the action. On this issue I held that a forum selection clause is not in of itself determinative of whether the court should assume jurisdiction over a foreign defendant based on jurisdiction simpliciter and forum non conveniens.

[4] The issues of jurisdiction simpliciter and forum non conveniens were not argued. I therefore ordered that the parties were at liberty to bring a further motion for determination of these issues.

[5] Local 183 supported LIUNA’s position.

[6] I indicated in my reasons that if costs could not be agreed upon, I would receive written submissions with a costs outline following which I would fix costs. The timetable set for the receipt of such submissions was extended. I have now received and considered all submissions.

[7] Costs are within the discretion of the Court: Courts of Justice Act, s. 131 (1). The Court has a broad discretion when determining the issue of costs. Rule 57.01 (1) sets out the factors the Court may consider in awarding costs.

[8] I reviewed the costs outlines submitted by counsel. I’ve considered the factors enumerated under Rule 57, including the time spent, the results achieved, the complexity of the matter, as well as the application of the principle of proportionality to the circumstances here: Rule 1.04 (1).

[9] Furthermore, I have taken into account the principles set forth by the Court of Appeal in Boucher v. Public Accountants Counsel for Ontario, 2004 14579 (ON C.A.) 71 O.R. (3d) 291 (C.A), specifically that the overall objective of fixing costs is to fix an amount that is fair and reasonable for the unsuccessful party to pay in the particular circumstances, rather than an amount fixed by actual costs incurred by the successful litigant.

[10] A successful party is entitled to costs unless there are very good reasons not to award: Schreiber v. Mulroney, 2007 31754 (ON SC), [2007] O.J. No. 3191 (Sup.Ct.) at para 2.

[11] On this motion the plaintiffs were the successful party. No part of their action was stayed or dismissed. They are therefore entitled to costs

[12] This motion was brought by LIUNA and not Local 183 who adopted LIUNA’s position. Such costs are therefore payable by LIUNA only.

[13] Given the complexity of the matter, the results achieved and experience of counsel I order that partial indemnity cause of this motion in the all-inclusive sum of $4,990.00 be awarded to the plaintiffs to be paid by LIUNA within 30 days.

Firestone J.

Date: July 31, 2014