Spina v. Shoppers Drug Mart Inc., 2015 ONSC 371
COURT FILE NO.: CV-10-414774CP
DATE: 20150119
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
GIOVANNI SPINA, JOHN SPINA DRUGS LTD., ROMEO VANDENBURG and ROMEO VANDENBURG DRUG COMPANY LTD.
Plaintiffs
– and –
SHOPPERS DRUG MART INC. and SHOPPERS DRUG MART (LONDON) LIMITED
Defendants
Margaret L. Waddell and Odette Soriano for the Plaintiffs
Shawn Irving and Lia Bruschetta for the Defendants
Proceeding under the Class Proceedings Act, 1992
HEARD: In writing
PERELL, J.
REASONS FOR DECISION - COSTS
[1] In this certified class action, the Plaintiffs, Giovanni Spina, John Spina Drugs Ltd., Romeo Vandenburg, and Romeo Vandenburg Drug Company Ltd., who are franchisees of the Defendant Shoppers Drug Mart Inc. (“Shoppers”), brought a motion to finalize the Discovery Plan for the run up to the common issues trial. See Spina v. Shoppers Drug Mart Inc., 2014 ONSC 6943.
[2] In my decision, I stated that if the parties could not agree about the matter of costs, which I was inclined to make in the cause, they could make submissions in writing.
[3] Largely because it views itself as the substantially or overwhelming successful party, Shoppers seeks costs on a partial indemnity basis of $12,487.29.
[4] For their part, the Plaintiffs submit that costs should be in the cause or, in the alternative, they submit that there should be no order as to costs. In the further alternative, the Plaintiffs submit that if it is ordered that they pay costs, that costs be fixed at $3,000.
[5] I am not persuaded by Shoppers’ argument that it should be awarded costs. I persist in the view that the appropriate exercise of the court’s discretion in the immediate case is to order costs in the cause, which I fix at $10,000 all inclusive.
[6] Assuming that Shoppers is correct that it was the successful party, the court still has the discretion to award costs in the cause when that type of award is just and fair and consistent with the various purposes served by awarding costs.
[7] It is preferable, of course, if parties can avoid motions about discovery plans, but a party seeking access to justice and a proper determination of his or her claim or defence ought not to be automatically discouraged from having the court settle the discovery plan by fear of having to immediately pay costs, nor should a party be automatically encouraged to bring motions to settle a discovery plan by the prospect of an immediate costs award.
[8] In my opinion, in some cases, and the immediate case is one, it is fairer to not engage in the exercise of which party won the motion, but rather to make costs in the cause. Such an award maintains the purposes of costs awards but connects the disincentives and the incentives of the interlocutory step with the disincentives and incentives of making or defending the claim in the first place.
[9] Returning to the immediate case, assuming Shoppers is correct that it was the successful party in settling the Discovery Plan associated with its defence of the action, I see nothing unfair in awarding costs in the cause.
[10] Order accordingly.
Perell, J.
Released: January 19, 2015
CITATION: Spina v. Shoppers Drug Mart Inc., 2015 ONSC 371
COURT FILE NO.: CV-10-414774CP
DATE: 20150119
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
GIOVANNI SPINA, JOHN SPINA DRUGS LTD., ROMEO VANDENBURG and ROMEO VANDENBURG DRUG COMPANY LTD.
Plaintiffs
– and –
SHOPPERS DRUG MART INC. and SHOPPERS DRUG MART (LONDON) LIMITED
Defendants
REASONS FOR DECISION - COSTS
PERELL J.
Released: January 19, 2015