SUPERIOR COURT OF JUSTICE - ONTARIO

CITATION: CHEMICHECK INC. v. TEVA CANADA LIMITED, 2015 ONSC 2851

COURT FILE NO.: CV-14-498963

MOTION HEARD: MARCH 25, 2015

RE: Chemicheck Inc.

v.

Teva Canada Limited

BEFORE: MASTER R.A. MUIR

COUNSEL: Jonathan Stainsby and Ronak Shah for the defendant, moving party Hedy L. Epstein for the plaintiff, responding party

ENDORSEMENT - COSTS

[1] This costs endorsement is made in connection with a motion brought by the defendant for an order requiring the plaintiff to post security for costs. On March 30, 2015 I released my reasons for decision. I dismissed the defendant’s motion and asked for written costs submissions. I have now received and considered the plaintiff’s costs submissions and the defendant’s responding costs submissions. No reply submissions were received.

[2] The plaintiff seeks partial indemnity costs in the amount of $7,144.24. The defendant argues that there should be no order for costs or that costs should be made payable in the cause.

[3] 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) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (the “Rules”) 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. Rule 57.03 provides that in most cases the costs of a motion should be fixed by the court and made payable within 30 days.

[4] 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.

[5] These are the factors and principles I have considered and applied in determining the costs issues on this motion.

[6] The plaintiff has been entirely successful on this motion. In my view, the plaintiff is entitled to its partial indemnity costs. I see no reason to depart from the usual practice of awarding costs to the successful party on an interlocutory motion and ordering that those costs be paid within 30 days. Rule 57.03 operates to discourage unnecessary interlocutory motions. Parties should understand from the outset that if they are not successful on a motion they will almost always be required to pay the successful party’s costs within 30 days.

[7] Although I was somewhat critical of the plaintiff’s impecuniosity evidence that criticism did not arise from what I viewed as misconduct or improper behaviour. I simply found that the plaintiff’s impecuniosity argument was not supported by the evidence. However, that does not detract from the plaintiff’s success on the motion as a whole.

[8] The plaintiff seeks partial indemnity costs of $7,144.24. This amount should come as no surprise to the defendant. The defendant’s estimated bill of costs, filed as part of the evidence on this motion, identified partial indemnity costs of $10,546.50 for its security for costs motion.

[9] The plaintiff was required to prepare three responding affidavits and a factum. Although the motion was not complex, it was obviously important to the plaintiff. The defendant was seeking an order that the plaintiff post security for costs in the amount of $150,000.00 as a condition for the plaintiff being allowed to proceed to have its claim determined on the merits. In my view, the amount of costs requested by the plaintiff is fair and reasonable in the circumstances and certainly within the reasonable contemplation of the defendant.

[10] I therefore order that the defendant pay the plaintiff’s partial indemnity costs of this motion fixed in the amount of $7,144.24, inclusive of taxes and disbursements. These costs shall be paid by June 1, 2015.

Master R.A. Muir

DATE: April 30, 2015