SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: CV-14-506339

DATE: 20140915

RE: LIMEN GROUP LTD., LIMEN GROUP CONSTRUCTION LTD. and LIMEN MASONRY (2003) INC., Plaintiffs/Responding Parties

AND:

JOHN BLAIR on his own behalf and on behalf of all members of the MASONRY INDUSTRY EMPLOYERS’ COUNCIL OF ONTARIO, JOHN BLAIR on his own behalf and on behalf of all members of the ONTARIO MASONRY CONTRACTORS ASSOCIATION – BACU BARGAINING COMMITTEE, KERRY WILSON on his own behalf and on behalf of all members of the BRICK AND ALLIED CRAFT UNION OF CANADA and KERRY WILSON on his own behalf and on behalf of all members of the ONTARIO PROVINCIAL CONFERENCE OF THE INTERNATIONAL UNION OF BRICKLAYERS AND ALLIED CRAFTWORKERS, Defendants/Moving Parties

BEFORE: Mr. Justice Firestone

COUNSEL:
Daniel J. Shields and Hendrik T. Nieuwland, for the Plaintiffs/Responding Parties

David Bannon and Robert Frank, for the Defendants, John Blair on his own behalf and on behalf of all members of the Masonry Industry Employers’ Council of Ontario and John Blair on behalf of the Ontario Masonry Contractors Association – BACU Bargaining Committee

Lorne Richmond and Charles Sinclair for the Defendants, Kerry Wilson on his own behalf and on behalf of all members of the Brick and Allied Craft Union of Canada and Kerry Wilson on his own behalf and on behalf of all members of the Ontario Provincial Conference of the International Union of Bricklayers and Allied Craftworkers

costs ENDORSEMENT

[1] By written reasons released July 7, 2014, I granted the moving party defendants motions brought pursuant to Rules 21.01(3) (a) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 and stayed this action pending determination by the Ontario Labour Relations Board. For the reasons given, I declined to consider whether an injunction or other interlocutory relief should be granted at this time.

[2] In my reasons for decision I indicated that if the parties were unable to agree on costs, cost submissions would be received. I have now received these submissions.

[3] The defendant moving parties argue that there is no reason to depart from the principle that costs should follow the event and be awarded to the successful party(s). They argue that they were entirely successful on this motion. They submit that the matter is of great importance to the moving parties and they were required to bring their motions under a very tight timeline because the plaintiffs/respondents insisted that the motion proceed on an expedited and urgent basis.

[4] The Blair defendants seek $38,595.50 on a partial indemnity basis and $57,445.55 on a substantial indemnity basis. The Kerry Wilson defendants seek $35,428.13 on a partial indemnity basis and $42,664.13 on a substantial indemnity basis.

[5] The plaintiffs/responding parties argue that the amount claimed by the defendants’ costs exceeds the parties’ reasonable expectations. Further, they submit that cost on a substantial indemnity scale is not appropriate.

[6] They highlight the fact that the motion was not determinative of the substantial rights of the parties and dealt with jurisdiction only. As well, they submit that the motion was not complex and that the moving party defendants presented duplicate arguments with an overlap of effort.

[7] Further they submit that since the court stayed rather than dismissed the action, costs of this motion should be deferred until it is determined whether the stay will be lifted.

[8] 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 when determining costs.

[9] A successful party is entitled to costs in the absence of a very good reason(s) not to award them: Schreiber v. Mulroney, 2007 31754 (ON SC), [2007] O.J. No. 3191 (Sup.Ct.) at para 2.

[10] 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: Boucher v. Public Accountants Counsel for Ontario, 2004 14579 Ont. C.A.

[11] I have considered the submissions of counsel as well as the relevant legal principles. Given the complexity of the matter, the results achieved and experience of counsel, I order partial indemnity costs of this motion be paid to the Blair defendants in the sum of $12,500.00 and to the Wilson defendants in the sum of $12,500.00 to be paid in 30 days.

Firestone J.

Date: September 15, 2014