Clarke v. Alaska Canopy Adventures, 2015 ONSC 3009

COURT FILE NO.: CV-10-401495

DATE: 20150511

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: KATHRYN CLARKE, Plaintiff (Responding Party)

AND:

ALASKA CANOPY ADVENTURES LLC and ALASKA RAINFOREST SANCTUARY LLC, Defendants (Moving Parties)

BEFORE: Mr. Justice Stephen Firestone

COUNSEL: S. Grillone and M. Jorge, for the Plaintiff (Responding Party)

Rui Fernandes and Kimberly Newton, for the Defendants (Moving Party)

M.A. Cohen for the Defendants Royal & Sun Alliance and Global Excel Management Inc. in Court File No. Cv-10-401492 and CV-10-401492-00A1

Robert G. Plate for the Defendant Mondial Assistance in Court File No. CV-10-401492 and CV-10-401492-00A2 (Responding Party)

HEARD: In Writing

costs ENDORSEMENT

[1] On December 2, 2014, by way of written reasons, I dismissed the moving parties’ (jointly referred to as Alaska Canopy) motion for summary judgment.

[2] In that motion Alaska Canopy sought to dismiss the plaintiff’s claim as well as the related claims against it in Court file numbers CV-10-401492-00A1 and CV-10-401492-00A2.

[3] In those reasons I indicated that if the parties could not agree on costs I could be contacted in order to set a timetable for the receipt of costs submissions.

[4] On March 13, 2015 counsel for Alaska Canopy advised that the costs between the plaintiff Clarke and Alaska Canopy had been agreed upon. The issue of costs between Alaska Canopy and the defendants Royal & Sun Alliance (“RSA”), Global Excel Management (“GEM”) and Mondial Assistance (“Mondial”) in the related actions had not.

[5] The costs submissions of these parties have been received and considered by me.

General Principles:

[6] Costs are within the discretion of the Court: Courts of Justice Act, R.S.O. 1990, c. C. 43, s. 131(1). The Court has a broad discretion when determining the issue of costs. Rule 57.01(1) sets out the factors the Court may consider when determining costs.

[7] A successful party is entitled to costs in the absence of a very good reason(s) not to award them: Schreiber v. Mulroney, 2007 31754 (ON SC), [2007] O.J. No. 3191 (S.C.), at para. 2.

[8] The overall objective of fixing costs is to fix an amount that is fair and reasonable for the unsuccessful party to pay in the particular circumstances, rather than an amount fixed by actual costs incurred by the successful litigant: Boucher v. Public Accountants Council for Ontario (2004), 2004 14579 (ON CA), 71 O.R. 291 (C.A.).

Position of the Parties:

[9] The defendants RSA and GEM seek substantial indemnity costs from Alaska Canopy in the sum of $9,322.50 for their review of the motion material and court attendance.

[10] They argue that on several occasions they wrote to Alaska canopy indicating that they desired to take no part in this summary judgment motion other than to agree that whatever the outcome they would abide by it, save and except that there would be no costs asserted against RSA or GEM.

[11] Alaska Canopy through their counsel rejected this suggestion and insisted that Alaska Canopy would be seeking costs against them unless they consented to the requested relief, namely a dismissal of their claims against Alaska Canopy prior to the motion being heard. As a result they were obligated to review all motion materials and attend at the hearing and be prepared to make submissions, if necessary.

[12] RSA and GEM therefore take the position that they did offer to settle a motion on the terms outlined by them however Alaska Canopy declined such offer and thereafter failed to achieve what was offered by them.

[13] Mondial seeks costs against Alaska Canopy on a partial indemnity basis in the sum of $3,134.16.

[14] It argues that it was required to respond to Alaska Canopy’s motion given that it sought specific relief against it, namely a dismissal of its cross claim against Alaska Canopy by way of summary judgment.

[15] As a result Mondial was a party to the motion and was required to attend and review the appropriate materials served and filed and be prepared to make submissions if required.

[16] Mondial submits that it should not be disentitled to costs simply because it adopted the position of the plaintiff. A lack of submissions, they argue, does not disentitle them costs.

[17] Alaska Canopy argues that RSA, GEM and Mondial should not be entitled to any costs of the motion given that the nature of their claim against Alaska Canopy is for contribution and indemnity.

[18] In addition they argue that RSA, GEM and Mondial did not file any responding materials, did not participate in cross-examinations and did not make any submissions at the motion hearing date. They submit that the attendance of counsel for these parties at the motion was unnecessary given that no submissions were made and no position was taken on the record with respect to Alaska Canopy’s motion.

[19] In the alternative they argue that RSA, GEM and Mondial should each be entitled to no more than $1,000 in costs given their minimal involvement.

Analysis

[20] I have considered the submissions of counsel as well as the relevant legal principles including the complexity of the matter, the results achieved and experience of counsel.

[21] In its motion Alaska Canopy sought specific relief against RSA, GEM and Mondial in addition to that sought against the plaintiff. It was therefore reasonable for RSA, GEM and Mondial to review all motion material and attend at the motion and make submissions, if they deemed it necessary, after hearing the submissions of plaintiff’s counsel in order to represent their clients’ interests.

[22] The fact that no responding materials were filed and oral submissions not made does not disentitle them to costs. They were the successful parties given that the moving party’s motion was dismissed. The amount of work done by them is relevant to the amount of costs, not entitlement to such costs.

[23] As Perell J. stated in part in Portuguese Canadian (Toronto) Credit Union Ltd. v. Cumis General Insurance Co., [2006] O.J. 4088 at paras. 7 and 9.9:

PCCU’s position was that ATM should be disentitled to costs, or alternatively that its costs should be no greater than $250. PCCU submitted that ATM should receive no costs because it failed to serve a factum and its submissions simply supported the position of Cumis and lasted less than five minutes. PCCU also submitted that the hours and the hourly rate were excessive. …

In my opinion, both ATM and Guardsman’s insurers are entitled to costs that are reasonable and fair in the circumstances. It was necessary for both the respond to PCCU’s interlocutory motion and they should not be faulted for simply supporting Cumis’ position rather than taking up the time to simply repeat them.

[24] I order that partial indemnity costs be paid by Alaska Canopy to RSA and GEM in the sum of $4,000 all-inclusive and to Mondial in the sum of $2,000 all-inclusive to be paid within 30 days.

Firestone J.

Date: May 11, 2015