2016 ONSC 2963
Court File and Parties
Court File No.: 15-66839 Date: 2016/05/02 Ontario Superior Court of Justice
Between: Ottawa Convention Centre Corporation, Plaintiff (Respondent on Motion) – and – Treefort Hip Productions Inc., Defendant (Moving Party)
Counsel: Andrew J.F. Lenz, for the Plaintiff K. Scott McLean and Fraser Mackinnon Blair, for the Defendant
Heard: by written submissions
Adjudication on Costs
Parfett J.
[1] The parties in this matter were unable to reach an agreement on costs and have submitted the matter to me for determination.
[2] The Applicant is seeking its costs on a substantial indemnity basis. The Respondent is not disputing that the Applicant was successful and should receive costs. However, the Respondent is requesting that the issue of costs be reserved to the trial judge.
[3] Given that the Applicant was successful on this motion, the basic principle as set out in R. 57.01 of the Rules of Civil Procedure [1] that a successful party should have their costs paid by the unsuccessful parties applies in this case.
[4] Rule 57.03(1) provides that costs are payable at the conclusion of a contested motion unless the court is satisfied that a different order would be more just. The Respondent relies on the decision of Intercontinental Forest Products SA v. Rugo [2]. That decision in turn cites with approval Rogers Cable TV Ltd. v. 373041Ontario Ltd., which states:
Where it is clear that the granting of the interlocutory injunction will put an effective end to proceedings it is appropriate for the court to make a costs order which reflects this fact and to fix the amount of costs. However, in a case such as this in which a trial is a virtual certainty the court will consider the usual alternatives: plaintiff’s cost in any event of the cause; plaintiff’s cost in the cause; costs in the cause; or costs reserved to the trial judge. [3]
[5] In the Intercontinental decision, the court indicates that while it is within the judge’s discretion to award costs after an interlocutory decision, “In making such determination, the judge on a motion for an interlocutory injunction should consider the principle in Rogers Cable, that in the usual case where a trial is a virtual certainty, the award of costs could be reserved to the trial judge.” [4]
[6] The Respondent argues that my decision on their application for an interlocutory injunction has made a trial of the issues a virtual certainty. I agree. In addition, the Respondent points out that the trial has been expedited and the Applicant will not be substantially prejudiced by the delay in awarding costs. Again, I agree.
[7] Consequently, the award of costs will be reserved to the trial judge. In the circumstances, I do not have to deal with the issue of whether the Applicant’s costs should be awarded on a substantial indemnity basis. That issue will also be reserved to the trial judge.
Madam Justice Julianne Parfett Released: May 2, 2016