SUPERIOR COURT OF JUSTICE - ONTARIO
RE: FINCANTIERI MARINE SYSTEMS NORTH AMERICA INC., Plaintiff
AND:
ANMAR ENERGY LTD. et. al., Defendant
BEFORE: MASTER MACLEOD
COUNSEL: H. James Marin, for the Defendants
Andrew J.F. Lenz, for the Plaintiffs
HEARD: In writing
COSTS ENDORSEMENT
1On January 12th, 2015 I released reasons in respect of motions argued in November of last year. The principal issue addressed in my reasons was whether or not a settlement agreement and release between the defendant and Hydro One Networks Inc. had to be produced. On that point, following inspection of the disputed documents and in accordance with recent Supreme Court of Canada authority, the defendant’s position was correct.
2I have now received and reviewed written costs submissions.
3Although the defendant was successful on the point that occupied the time in argument, there were actually two underlying motions. Firstly the plaintiff had brought a motion to compel answers to undertakings and questions refused at discovery. The defendant brought a similar motion but it was ultimately resolved. The one issue that remained outstanding at the time of the motion was also resolved by agreement after the motion was brought.
4I have now received and reviewed the submissions on costs.
5Ordinarily a party that brings a necessary motion to enforce discovery obligations is entitled to costs and that should be taken into account in dealing with the contested matter that was argued. Parties should not be penalized for narrowing the issues or negotiating practical resolutions to contested issues. In this case, for example, two of the refusals were resolved by a consent confidentiality and sealing order.
6The plaintiff argues that the plaintiff’s motion was necessary because the defendant had not answered undertakings despite demands made over several months following the discovery. On the other hand the plaintiff argues the motion launched by the defendant was unnecessary because the plaintiff’s undertakings had actually been answered and the motion was ultimately withdrawn except for the issue of whether or not Mr. Bongiorni would be required to reattend personally for discovery in Toronto.
7I am not prepared to speculate about what the outcome would have been had other aspects of these motions been argued. The defendant was successful on the point that was argued and it is of course an important practice point. On the other hand it was the only remaining issue on a motion that otherwise appeared to have been necessary. I do not regard the motion brought by the defendant and then withdrawn as significantly changing the landscape.
8Neither party “won” the motions when they are viewed in context. I also take into account the submission of the plaintiff that since the court had to inspect the disputed document and there was no other cogent evidence clearly indicating why it was privileged, the plaintiff could not assess the merits of the privilege claim and it was reasonable to argue the point.
9Under the circumstances I am not ordering any costs of the motion at least not fixed and payable forthwith. I recognize the parties collectively spent more than $20,000.00 on the motion and if one of the parties is successful in the action then it should remain open to that party to convince the trial judge that these motions were necessary and should form part of the costs recoverable in the cause.
10For the reasons above, the costs of both motions shall be costs in the cause to be dealt with in the discretion of the trial judge.
Master MacLeod