Temex Resources Corp. v. Michelle Walker, Jamieson Walker, David Burda and Darlene Stubbs

Court File No.: 5659/14 Date: 2014-11-18

Ontario Superior Court of Justice

Between: Temex Resources Corp., Applicant

• and - Michelle Walker, Jamieson Walker, David Burda and Darlene Stubbs, Respondents

Counsel: Erik Penz, for the Applicant Michelle Walker on her own behalf; Brigid Wilkinson, agent for Eric Fournie for Jamieson Walker David Burda and Darlene Stubbs not appearing

Heard: April 16, June 10, 11, and 30, 2014

CORRECTED DECISION December 1, 2014: Corrected ONSC number is 6965.

DECISION RE COSTS

Wilcox, J.

[1] Temex Resources Corp. (Temex) brought an Application to remove a matter from the Mining Lands Commissioner and have it dealt with in the Superior Court of Justice. Michelle Walker and Jamieson Walker responded. David Burda and Darlene Stubbs did not. Michelle Walker generally opposed the Application, while Jamieson Walker’s position aligned with Temex’s. The Application was first returnable on March 26, 2014. Temex’s confirmation referred the presiding judge to the materials filed by all three participating parties and estimated the time required, including costs submissions, at 75 minutes for each of the three parties, for a total of 3 hours and 45 minutes.

[2] Temex also brought a motion returnable on March 26, 2014 to strike or expunge parts of Michelle Walker’s responding materials. The Notice of Motion said it was to be heard at the outset of the hearing of the Application. There was no indication of the time required for the motion.

[3] The case was adjourned from March 26 to April 16, 2014 to allow Michelle Walker to respond to Temex’s motion.

[4] The motion was heard as scheduled on April 16. It took the day and had to be reserved because of that and the volume of facts, materials and arguments that had to be reviewed and understood in order to make a decision. The Application had to be adjourned accordingly. Counsel suggested scheduling a day for the Application. The court allotted two out of an abundance of caution, June 10 and 11, 2014, and this is what Temex’s next confirmation was for. The Application then took both days, plus a third, June 30, 2014. That was without any costs submissions on either the Motion or the Application.

[5] Notably, Temex was pressing all along to deal with the matter as soon as possible, yet took up most of the court time.

[6] Temex was successful in its motion, and Temex and Jamieson Walker were successful on the Application.

[7] The court ordered that, if the parties could not agree on costs, they could file their submissions. Costs submissions have been received from all three parties and reviewed. Both Temex and Jamieson Walker seek costs from Michelle Walker, totaling over $120,000.

[8] The Ontario Court of Appeal has held that costs awards should reflect what the court views as a fair and reasonable amount that should be paid by the unsuccessful parties rather than any exact measure of the actual costs to the successful litigant. The expectation of the parties concerning the quantum of costs is a relevant factor in deciding what is fair and reasonable. (Boucher and Public Accountants Counsel for the Province of Ontario (2004) 2004 CanLII 14579 (ON CA), 71 O.R. (3d) 291, and Serra and Serra 2009 ONCA 395, [2009] O.J. No. 1905). The court retains the discretion not to award a successful party its costs in appropriate circumstances, such as where it would have a devastating effect on the party that would otherwise pay (Murray v. Murray (2005) 2005 CanLII 46626 (ON CA), 79 O.R. (3d) 147 (Ontario C.A.). A party’s ability to pay is relevant in deciding the amount of costs but does not affect the other party’s entitlement to costs (Izuk v. Bilousov 2011 ONSC 7476, [2011] O.J. No. 5814).

[9] I also have taken into account the factors enumerated under rule 57, including the time spent, the result achieved and the complexity of the matters, as well as s. 126 of the Mining Act and the Mining Lands Commissioner’s Procedural Guidelines regarding costs.

[10] I note in particular that:

• the costs sought are far in excess of what an unsuccessful party could reasonably expect to pay, especially given the relatively short amount of court time that the matter was projected to take;
• the relevant law in these proceedings was not particularly clear, as demonstrated by Temex’s lengthy arguments;
• the costs of this matter could have been somewhat reduced if a change of venue had been sought to one such as Toronto which would have been much more convenient to all parties and their counsel;
• any substantial award of costs would appear to be financially crushing to and doubtfully collectable from Michelle Walker.

[11] In view of the above, I conclude that each party shall bear its own costs in this matter.

Justice James A. S. Wilcox

Released: November 18, 2014