Court File and Parties

Citation: Chemtrade West Limited Partnership v. Met Holdings Inc., 2015 ONSC 1939 Court File No.: CV-12-9929-00CL, CV-12-9847-00CL Date: 2015-03-25 Superior Court of Justice - Ontario

Re: Chemtrade West Limited Partnership, Chemtrade Montreal Limited Partnership and Chemtrade Refinery Solutions Limited Partnership, Applicants And: Met Holdings Inc. (formerly known as Investis U.S., Inc.), Respondent

Before: Wilton-Siegel J.

Counsel: Peter Griffin, Eli Lederman and Brendan Morrison, for the Applicants John Finnigan and Deborah Palter, for the Respondents

Heard: By Written Submissions

Costs Endorsement

[1] Neither party was wholly successful on this motion for production of documents. Each party submits that they were more successful than the other and is therefore entitled to their costs.

[2] The respondent submits that it was more successful on the motion insofar as the Court ordered production beyond the June 24, 2011 cut-off date proposed by the applicants. The respondent opposed the relief sought but, in the alternative, had reserved the right to argue that any such disclosure should extend beyond June 24, 2011.

[3] In its costs submission, the respondent effectively attempts to have it both ways. Its principal position was that no disclosure should have been ordered. While the respondent suggested that any order of production should extend beyond the date of June 24, 2011 sought by the applicants, the respondent did not withdraw its principal objection to such disclosure and confine its argument to the appropriate cut-off date prior to the hearing. As a result, the applicants were forced to bring their motion. Given the respondent’s position, I think that the applicants were substantially more successful than the respondent.

[4] In fixing fair and reasonable costs, the reasonable expectations of the losing party are an important consideration. In this case, the respondent’s costs outline seeks costs of $10,448.03 on a partial indemnity basis.

[5] I have also considered the importance of this issue to both parties which, in this litigation, could be potentially significant, as well as the relative complexity of the issues presented by the motion. In addition, the work was undertaken by counsel of appropriate seniority at partial indemnity rates that are reasonable, given the fact that both parties are significant entities advised by experienced counsel. I have, however, reduced the applicants’ costs to reflect their lack of success on an alternative argument on the motion that had no reasonable prospect of success.

[6] Based on the foregoing, I find fair and reasonable costs to be $11,500 on an all-inclusive basis.

Wilton-Siegel J.

Date: March 25, 2015