ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CV-11-421309
DATE: 2014-08-25
BETWEEN:
JOSEY AMELLO and FRANKIE AMELLO
Plaintiffs
- and -
BLUEWAVE ENERGY LIMITED PARTNERSHIP, PARKLAND INCOME FUND and DANIEL CHARLES TRANSPORT LTD.
Defendants
Hugh M. MacKenzie, for the Plaintiffs Josey Amello and Frankie Amello
Eric J. Adams, for the Defendants Bluewave Energy Limited Partnership and Parkland Income Fund
David Zarek and Oneal Banerjee, for the Defendant Daniel Charles Transport Ltd.
HEARD: In Writing
PERELL, J.
REASONS FOR DECISION - COSTS
[1] Bluewave Energy Limited Partnership (“Bluewave”), a division of Parkland Income Fund (“Parkland”) seeks costs of $25,738.86 on a substantial indemnity basis with respect to a complex set of motions that I decided in reasons reported as Amello v. Bluewave Energy Limited Partnership, 2014 ONSC 4040.
[2] The unsuccessful party, Daniel Charles Transport Ltd., submits that the appropriate award of costs is $7,500.
[3] The background is that there was an oil spill in the basement of Josey and Frankie Amellos’ home. The Amellos brought an action against Parkland, Bluewave, and Daniel Charles Transport. The Defendants asserted crossclaims, one against the other.
[4] There was a Trucking Services Agreement between Bluewave and Daniel Charles Transport under which Daniel Charles Transport was obliged to take out liability insurance naming Bluewave as an additional insured. It did take out liability insurance - for itself - with State Farm Fire and Casualty Company - but it omitted to add Bluewave as a co-insured. Bluewave had liability insurance with Liberty Mutual Insurance Company, which is paying for the cost of Bluewave’s and Parkland’s defence to the Amellos’ action. However, Bluewave wanted the costs of the defence paid by Daniel Charles Transport, and so Bluewave brought a motion for a partial summary judgment seeking an Order obliging Daniel Charles Transport to pay for its defence.
[5] Daniel Charles Transport brought a motion to withdraw admissions made in a Response to a Request to Admit, and, relying on a Pierringer Settlement Agreement it had with the Amellos, it brought a cross-motion for a judgment dismissing Bluewave’s crossclaim.
[6] In the result, I did not grant Daniel Charles Transport leave to withdraw its admissions. I decided that Bluewave had proven a claim for damages against Daniel Charles Transport for payment of the defence costs. I granted Bluewave a partial summary judgment for 50% of the costs of its defence of the Amellos’ action to date and a declaration that Daniel Charles Transport is liable to pay 50% of the costs of Bluewave’s defence in the future. I dismissed the motion to dismiss Bluewave’s crossclaim.
[7] At the time of the motion, I understood that the costs of the defence up to the time of the motion had a value of $34,484.81, but it now turns out that the value of the defence costs in issue was approximately $16,200. Thus, the value of the amount of the order for which costs are being sought is $8,102.91 plus the declaratory order.
[8] I begin my assessment of costs by saying that there is no basis for a punitive award of costs on a substantial indemnity basis.
[9] I shall not bother to review the scolding that each party makes of each other’s procedural conduct, save to say that the activities do not rise to the level that would justify a punitive costs award and, as an aspect of awarding costs on a partial indemnity basis, they tend to cancel each other out.
[10] I continue by saying that Bluewave’s costs submissions combined with its Bill of Costs borders on the incomprehensible.
[11] Doing the best I can from just reading the submissions, I understand that Bluewave is seeking $25,738.86 on a substantial indemnity basis, discounted from an actual cost of $41,125.22 plus disbursements of $509.51. Bluewave’s partial indemnity costs are apparently $27,142.64 plus disbursements of $509.51 which means, bizarrely, that its partial indemnity claim would exceed its purported substantial indemnity claim.
[12] I understand that Bluewave is seeking $2,840.75 in costs for preparing its costs submissions.
[13] Costs should be awarded to Bluewave as the successful party, and it should receive partial indemnity costs. These costs should be awarded using the normal principles that guide a court’s discretion in awarding costs.
[14] The overriding principle in awarding partial indemnity costs is the reasonable expectations of the unsuccessful party: Boucher v. Public Accountants Council for the Province of Ontario, 2004 14579 (ON CA), [2004] O.J. No. 2634.
[15] In assessing costs for these particular motions, there is the difficulty that the importance of the matter goes beyond the small sum actually awarded and the significance of the order largely rests in the declaratory aspect that Daniel Charles Transport is liable to pay 50% of the costs of Bluewave’s defence in the future. Since Bluewave sought that 100% of the costs be paid, its success was just a partial success on a difficult partial summary judgment motion.
[16] In all the circumstances, Bluewave’s claim for $25,738.86 is unreasonably high and Daniel Charles Transport’s submission of $7,500 is modestly too low.
[17] In my opinion, the appropriate and fair award is $12,000 to Bluewave, all inclusive.
[18] There is no order as to costs with respect to the costs submissions.
[19] Order accordingly.
Perell, J.
Released: August 25, 2014
COURT FILE NO.: CV-11-421309
DATE: 2014-08-25
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
JOSEY AMELLO and FRANKIE AMELLO
Plaintiffs
- and -
BLUEWAVE ENERGY LIMITED PARTNERSHIP, PARKLAND INCOME FUND and DANIEL CHARLES TRANSPORT LTD.
Defendants
REASONS FOR DECISION - COSTS
PERELL J.
Released: August 25, 2014