SUPERIOR COURT OF JUSTICE - ONTARIO

RE: BASSETT & WALKER INTERNATIONAL, INC.

v.

HAPAG-LLOYD (CANADA) INC.

2014 ONSC 5854

COURT FILE NO.: CV-13-476445

BEFORE: MASTER R.A. MUIR

COUNSEL: Christopher J. Somerville for the plaintiff Robert Love for the defendant

HEARD: August 19, 2014

ENDORSEMENT - COSTS

[1] This costs endorsement is made in respect of two motions heard on August 19, 2014.

[2] The defendant brought a motion pursuant to Rule 23.05 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (the “Rules”) for an order requiring the plaintiff to pay the costs of this discontinued action. The plaintiff sought an order for costs in respect of an appearance before the assessment officer on April 8, 2014.

[3] On August 22, 2014 I released my endorsement. The plaintiff was successful on both motions, although the amount of costs it was seeking on its motion was significantly reduced.

[4] I requested costs submissions. I have now received and considered those submissions.

[5] The plaintiff argues that it was the successful party and seeks partial indemnity costs of both motions in the total amount of $11,939.97. The defendant argues that the issues on these motions were novel and success was divided. The defendant submits that there should be no order for costs. Alternatively, the defendant suggests costs of $3,000.00 would be fair and reasonable.

[6] The court’s general authority to award costs as between parties to litigation is found in section 131(1) of the Courts of Justice Act, R.S.O. 1990, c. C.43, which provides that costs are in the discretion of the court. Rule 57.01(1) sets out a non-exhaustive list of factors the court is to consider when awarding costs. Rule 1.04(1.1) is also applicable. It requires the court in applying the Rules to make orders that are proportionate to the importance and complexity of the issues and to the amount involved in the proceeding.

[7] When dealing with costs, the overall objective for the court is to fix an amount that is fair and reasonable for the unsuccessful party who generally must pay the costs of the successful party. See Zesta Engineering Ltd. v. Cloutier, 2002 25577 (ON CA), [2002] O.J. No. 4495 (C.A.) at paragraph 4 and Boucher v. Public Accountants Council for the Province of Ontario, 2004 14579 (ON CA), [2004] O.J. No. 2634 (C.A.) at paragraph 26. In Clarington (Municipality) v. Blue Circle Canada Inc., 2009 ONCA 722 the Court of Appeal stated as follows at paragraph 52

Rather than engage in a purely mathematical exercise, the judge awarding costs should reflect on what the court views as a reasonable amount that should be paid by the unsuccessful party rather than any exact measure of the actual costs of the successful litigant.

[8] These are the factors and principles I have considered and applied in determining the costs issues on these motions.

[9] The plaintiff was largely successful on these motions and is entitled to costs. In my view, the issues were not so novel as to justify an order for no costs. However, I agree with the defendant that there should be a reduction in the costs claimed by the plaintiff for its lack of complete success. I also agree with the defendant that the costs requested are excessive for motions of this nature. It must be remembered that these motions were entirely about the issue of costs. Proportionality also needs to be considered. The total amount of costs claimed by the defendant was approximately $38,000.00. Finally, the issues were not complex from a legal or factual perspective.

[10] For these reasons, it is my view that it is fair and reasonable for the defendant to pay the plaintiff’s costs of these motions fixed in the amount of $4,000.00, inclusive of HST and disbursements. These costs shall be paid within 30 days.

Master R.A. Muir

DATE: October 7, 2014