ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 10-49377
DATE: 2014-08-11
BETWEEN:
ELLIOTT FALLS POWER CORPORATION
Plaintiff
– and –
ONTARIO ELECTRICITY FINANCIAL CORPORATION, ONTARIO POWER GENERATION INC., HYDRO ONE INC., INDEPENDENT ELECTRICITY MARKET OPERATOR, and ELECTRICAL SAFETY AUTHORITY.
Defendants
Peter Cronyn and Raymond Murray, for the Plaintiff
Timothy Pinos and Emily Larose, for the Defendants
HEARD: In writing
COsts Decision
T.D.RAY, J
[1] After an eight day trial, I dismissed the plaintiff EF’s action (2014 ONSC 3426), and invited written costs submissions.
[2] The defendant, OEFC’s position is that it should be awarded costs on a substantial indemnity scale from September, 2013, and partial indemnity costs before for a total amount of $396,822.72 including some $67,000 in disbursements. The OEFC says it made an offer in September, 2013 to consent to a dismissal without costs. It also relies upon a number of factors on Rule 57.01, as follows: the amount claimed by the plaintiff, being some 4.24 million dollars; complexity of the proceeding which was created by the EF changing its theory of the case; importance of the issues, being the fact that several other power generating stations had similar contracts; improper or unnecessary steps being the EFs refusal to agree to an adjournment because of the OEFC’s counsel’s medical issue at the time; refusal to admit things, the OEFC facilitated admissions and authentication.
[3] EF contends that the partial indemnity scale is the appropriate scale throughout, and calculates that OEFC’s claim should be reduced by $54,000 to reflect that. It also claims the costs are excessive and submits they should be reduced by a further $71,000 to reflect the principle of proportionality and excessive time. It challenges approximately $25,000 in disbursements as being excessive or unnecessary.
[4] By way of reply, OEFC says additional counsel time was what permitted OEFC to assist the court with extensive summaries, and that the parties were from Toronto with additional time and expense required. It also defends the $10,606.28 paid to the witness Paul Vyrostco on the ground that he was retired.
[5] While indemnity is an important principle, so is the amount an unsuccessful party could reasonably expect to pay. I am mindful that, as counsel for OEFC reminded us, the outcome of this trial affected some fifteen other power generators similar to the EF. This was an important investment for OEFC which has huge resources and can well afford the cost. On the other hand, while EF’s claim as asserted was significant, it is a modest enterprise. I dare say that to award the costs, as suggested by OEFC, would put EF out of business.
[6] Both counsel were professional with the court and with each other. They were well prepared and conducted themselves as one would expect of senior experienced counsel.
[7] In dismissing EF’s claim, I assessed the damages at approximately $450,000. I don’t consider that the amount of 4.24 million dollars was ever realistic to any of the parties.
[8] While I have no critical comment concerning the time invested by OEFC’s counsel, I am not sure that EF should bear that cost. It was not excessive, but probably EF’s counsel time is a better guide to what EF, as the unsuccessful party, would reasonably expect to face. As noted above, OEFC had other claims lurking in the background.
[9] I consider that the partial indemnity scale is approximately 55% of a reasonable full indemnity bill adjusted for the factors as above. The claim by OEFC for substantial indemnity costs must reflect the factors noted above as well.
[10] Having regard to the factors outlined in rule 57.01 as noted above, I consider total costs in the amount of approximately $190,000.00, exclusive of disbursement, to be appropriate. I am concerned about the fee claimed for Mr. Vyrostco. It is excessive. I assess the disbursements payable by EF at $60,000.00. The costs payable by EF to OEFC are thereby fixed at $250,000 inclusive of HST.
Honourable Justice Timothy Ray
Released: August 11, 2014
COURT FILE NO.: 10-49377
DATE: 2014-08-11
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
ELLIOTT FALLS POWER CORPORATION
Plaintiff
– and –
ONTARIO ELECTRICITY FINANCIAL CORPORATION, ONTARIO POWER GENERATION INC., HYDRO ONE INC., INDEPENDENT ELECTRICITY MARKET OPERATOR, and ELECTRICAL SAFETY AUTHORITY.
Defendants
COSTS DECISION
Honourable Justice Timothy Ray
Released: August 11, 2014