Citation: Imperial Oil et al v. Unifor et al, 2015 ONSC 3847

COURT FILE NO.: 7558/15

DATE: 20150616

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: IMPERIAL OIL, A PARTNERSHIP OF IMPERIAL OIL LIMITED AND MCCOLL-FRONTENAC PETROLEUM INC., Plaintiffs

AND:

UNIFOR, JERRY DIAS, UNIFOR LOCAL NO. 672 GLENN SONIER, JAMIE BEARD, MIKE BELISLE, CLIVE CANNING, BRIAN COLUMBUS, MIKE COMPTON, MIKE DUPUIS, NICK ENNETT, TIME GAMBLE, PAUL GREEN, DEAN HART, KIRK HILLIS, KEVIN HUGHES, NATHAN KARTTUNEN, MIKE LANDRY, KYLE LOOSEMORE, TODD MARKS, LARRY McFADDEN, DAVID MEYSKENS, ADRIAN MEZZATESTA, SHAWN MUNDELL, ALEX POMORANSKY, CHRIS REINDERS, STEVEN RICE, KEVIN SCHAFFER, SCOTT SEABROOK, ADAM SHEELER, BILL SMYTH, KENNETH THERRIEN, SCOTT VIGGERS and TERRY YOUNG, Defendants

BEFORE: The Honourable Mr. Justice J.A. Desotti

COUNSEL: Richard Nixon, Amy Pressman and B. Taylor, Counsel for the Plaintiffs

Barry Wadsworth, Counsel for the Defendants

HEARD: Submissions – In Writing

ENDORSEMENT

[1] The only remaining issue is the award of costs with respect to the successful injunctive relief of the plaintiff.

[2] The plaintiff is seeking costs of $205,192.84 (legal costs of $119,733.79 and disbursements of $85,419.04) for its 2 and ½ hour motion before me, while the defendants submit that costs of $15,000.00 inclusive of H.S.T. would be a more appropriate award of costs.

[3] The extreme disparity in the positions of counsel reflect unfortunately the hostility and anger associated with this labour strike and does not reflect the merits of any argument for a cost award. To put this in another way, when the parties are $190,000.00 dollars apart, I must conclude that there is no appreciation that costs are not usually punitive but reflect the efforts that are made in support of a parties’ position.

A. The Facts

[4] The facts are not in issue. The plaintiff claim is based on the actions of strikers at the gates of the Imperial Oil plant in Sarnia. The labour dispute is not between Unifor and Imperial Oil but of one of its inside contractors, SGS Canada Inc. As a result of significant delays with ‘coker trucks’ entering and exiting the plant, the distribution of distillates from Imperial Oil’s production was significantly disrupted and economic losses occasioned.

[5] I should add that as a result of the strike, SGS Canada Inc. has hired replacement workers to complete the work formerly performed by the strikers. Absent the purposeful delays on these ‘coker trucks’ by the striking union, the sanction of a strike has had limited effect in resolving this labour dispute.

[6] Any delay of the timing of these ‘coker trucks’ entering or exiting the plaintiff’s industrial site was known to be of significant concern to the plaintiff, Imperial Oil. Thus, I agree with counsel for the plaintiff, that immediate efforts were attempted to prevent the continuation of these delays without any resolution or success. These delays lasted for 13 days.

B. The Legal Issues

[7] To obtain an interim injunction, the law has been crystalized and settled into three stated necessary determinations by a court. Firstly, are there are serious issues to be tried; the applicant will suffer irreparable harm; and the balance of convenience favours the granting of the injunction. In addition in labour disputes, reasonable efforts had to have been made to obtain police assistance but without success and at least two days’ notice must be given the responding party.

[8] In this case, all of the criteria were clearly met and based on the significant affidavit evidence, there can be no misapprehension that many of these coker trucks were significantly delayed from entering and exiting the plaintiff’s industrial site. The result was a serious disruption of the plaintiff’s ability to distribute its distillates throughout Ontario.

[9] Nevertheless, one significant issue that arises concerns whether the disbursements of $85,419.04 as a result of the plaintiff obtaining the services of “AFI” to detail the various delays at various plant gates properly constitute part of a cost award, and if so, was all this information that was provided before me necessary to establish unequivocally that significant delays were occurring.

[10] On this point, I agree that some information about the number and frequency of these delays had to be presented to the court to establish the irreparable harm to the plaintiff’s operation. Yet, absent any raised disagreement on this issue by the responding parties, I am loathe to award the entire contracted sum of detailed observations about delay by “AFI” as part of this contested issue of costs.

[11] What is reasonable with respect to this amount should include a number of days where delays occurred and were duly noted by “AFI” together with the affidavit of the Sarnia Site’s Refinery Manager detailing the consequences with respect to these delays. In that sense, I would award 20% of the expenses occasioned by these detailed reports or the sum of $17,083.80.

[12] The second issue or concern arises out of the necessity for the amount of legal time and expenses incurred by counsel for the plaintiff to adequately present its case before the court. As stated, these legal expenses in the amount of $119,733.79 are said to have been occurred in order to properly present the plaintiff’s position to the court.

[13] While I understand that meaningful attempts were made by counsel for the plaintiff to resolve this conflict prior to the launching of a court proceeding, and I appreciate that the position of the defendants, through their counsel, seemed to be purposefully obtuse, obstructive, and without any real merit. Ultimately however, any cost award must reflect the efforts of the parties to appropriately present their positions to the court.

[14] In short, I do not see in this case any reason to create any cost consequences to the defendants that amount to a targeted guided missile meant to destroy and obliterate the defendants because the reality of the injunctive application were both factually without disagreement and legally overwhelmingly persuasive and conclusive as a matter of law.

[15] In the result on this second issue, I award costs inclusive of H.S.T and disbursements of $20,000.00 to the plaintiff. The total cost award in favour of the plaintiff is thus $37,083.80.

“Justice J.A. Desotti”

The Honourable Mr. Justice J.A. Desotti

Date: June 16, 2015