COURT FILE NO.: CV-16-546132 DATE: 20160617 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: The Scoular Company, Applicant AND: MICHAEL DETLEFSEN, THOMAS P. MUIR, MUIR DETLEFSEN & ASSOCIATES LIMITED and FRONT STREET CAPITAL, Respondents
BEFORE: SPIES J.
COUNSEL: Caleb Edwards, for the Applicant Robert Staley, for the Respondents Michael Detlefsen, Thomas P. Muir, and Muir Detlefsen & Associates Limited No one appearing for Front Street Capital
HEARD: April 14, 2016
ENDORSEMENT
Introduction
[1] The Scoular Company (“Scoular”) brought this Application to enforce Letters Rogatory issued by the United States District Court for the District of Minnesota, dated January 19, 2016, in an action commenced in June 2014 by Scoular against Ceres Global AG Corp. (“Ceres”) and Riverland AG Corp. (“Riverland”); a wholly-owned subsidiary of Ceres, (the “Minnesota Action”).
[2] The Respondent Front Street Capital (“Front Street”) did not appear on the Application. By the time that the Application was argued before me, the only remaining issue was what costs should be paid by the Applicant to the Respondents Michael Detlefsen ("Detlefsen"), Thomas Muir ("Muir"), and Muir Detlefsen & Associates Ltd. ("MD&A", together with Detlefsen and Muir, the "Respondents") for responding to the Letters Rogatory and how costs of the Application should be dealt with. Muir and Detlefsen are former employees of Ceres. These Respondents are not parties to the Minnesota Action.
[3] This Application was initially returnable on April 1, 2016. After the Applicant filed its Initial Factum and Application Record, there were several developments. On March 23, 2016, the Respondents filed a counter-application (the "Counter-Application") also returnable on April 1, 2016, naming Ceres and Scoular as Respondents. The Counter-Application was brought to enforce Detlefsen's and Muir's rights under indemnity agreements that Ceres entered into with each of them. In particular they sought confirmation that they would be indemnified for, inter alia, their reasonable expenses and time spent responding to the examinations and document discovery sought in this Application. An affidavit sworn by Detlefsen was filed as part of the Counter-Application. In his affidavit, Detlefsen states that the indemnification agreements between Ceres and Muir and Detlefsen entitled them to reimbursement from Ceres in connection with all "out-of-pocket costs" if they became involved in litigation as a result of serving as Directors and Officers of Ceres.
[4] Detlefsen's and Muir's Counter-Application against Ceres was resolved on March 31, 2016. Detlefsen and Muir have apparently reached an agreement with Ceres regarding Ceres’ obligation to indemnify them but the particulars of that agreement have not been provided to Scoular or disclosed on this Application.
[5] The Respondents informed Scoular that, as a result of the resolution of the dispute with Ceres, they would not oppose the enforcement of the Letters Rogatory at the April 1, 2016 hearing, so long as the proposed order provided for full indemnity costs. Scoular said it accepted that the Respondents were entitled to full indemnity costs in complying with the Letters Rogatory order, but not in connection with the Application, provided there was a cap in the order of $20,000. Scoular proposed the Respondents obtain any additional costs from Ceres.
[6] The Respondents and Scoular were unable to reach an agreement on the terms of the order. When they attended court on April 1, 2016 insufficient time had been booked by Scoular and so Scoular's application was adjourned to April 14, 2016.
Issues
[7] There are two issues to be determined:
- Should the Respondents' costs for responding to the discovery requests be capped at $20,000; and
- Should the Respondents receive their costs of responding to this Application?
The Facts
[8] Detlefsen is the former President and Chief Executive Officer of Ceres. Muir is a former Director and the former Chief Transaction Officer of Ceres. Detlefsen and Muir provided their executive services to Ceres through MD&A.
[9] In the Minnesota Action, Scoular alleges that Riverland induced Ceres to breach contracts with Scoular relating to an oil and grain rail transfer facility on the border between the state of North Dakota, United States, and the province of Saskatchewan, Canada (the “Northgate Project”).
[10] Scoular alleges that Front Street acted as managing agent for Cere, then operating in Toronto, and that the Respondents served as a "strategic advisor" to Front Street.
[11] The Minnesota Action is a civil action commenced by the Scoular, alleging that Riverland induced Ceres to breach contracts with Scoular. Specifically Scoular alleges that in 2012, Ceres approached Scoular to seek its involvement in developing and operating the Northgate Project and that Ceres, principally through Detlefsen, assured Scoular that Ceres would use Scoular and not Riverland to run the proposed facility. Scoular alleges that, notwithstanding the contractual agreements and assurances, Ceres decided to use Riverland rather than Scoular for its grain operations. As a result the action claims damages and injunctive relief.
[12] Scoular relies on initial disclosures in the Minnesota Action as to the role of Detlefsen and Muir in the negotiations and alleges that Muir and Detlefsen served as Ceres’ primary representatives in discussions with Scoular. Muir’s employment with Ceres ended in June 2014 and Detlefsen’s ended in September 2014. There is no dispute that Muir and Detlefsen have relevant documents and testimony.
[13] Muir and Detlefsen conducted much of their discussions through the email servers of their own companies, MD&A and Front Street. During disclosure in the Minnesota Action, the defendants asserted that third party entities, including the Respondents, would not produce documents to the defendants for production. The defendants have asserted that they do not possess those documents and so cannot produce them in the Minnesota Action. The defendants have also asserted that there are no longer any individuals at Ceres who actively participated in the negotiations between the parties leading up to the Northgate Project.
[14] This situation has changed however. In his affidavit filed on the Counter-Application Detlefsen also stated:
In light of our roles as executives of Ceres during a time material to the Minnesota Action, and turnover in personnel at Ceres since that action was commenced, Muir and I understood that we might be important witnesses in the Minnesota Action. Although we have ceased to be officers, directors and shareholders of Ceres, ever since the Minnesota Action was commenced, it has been our intention to cooperate with Ceres in connection with the Minnesota Action. That continues to be our intention. [Emphasis added]
[15] In his affidavit, Detlefsen also states that the Respondents provided several thousand documents and electronic files to Ceres after they had noticed that Scoular would be pursuing the Letters Rogatory, but before it was granted. This was done before the Counter-Application was resolved. The Respondents submitted invoices in connection with this review of documents to Ceres, and according to their invoices, Muir and Detlefsen spent a total of 53 hours reviewing the documents they produced to Ceres.
The Order Sought by Scoular
[16] Scoular has proposed a draft order in the form attached as Appendix 'B' to its Supplemental Factum. The draft order seeks to require the Respondents to produce, within 28 days:
All documents not already produced to the Defendants sent or received by Front Street or the Respondents in the period between June 1, 2012 and June 1, 2014, referencing or relating to Ceres’ decisions (a) to grant exclusivity to Scoular; and, subsequently, (b) to exclude Scoular from the Northgate Project; and
All documents not already produced to the Defendants exchanged among Front Street, Respondents Ceres, Riverland, and/or H.R. Green, Inc. between June 1, 2012 and June 1, 2014 relating to Scoular's involvement in the Northgate Project, including, but not limited to criticisms about or references to contributions by Scoular.
[17] The draft order also seeks to require each of Muir and Detlefsen to be deposed for one day "of seven hours of testimony time".
[18] The Respondents seek to remove the $20,000 cap on their costs for preparing for and attending the examinations and to add an order that they receive their costs of responding to this Application on a full indemnity basis.
Law - Costs of Responding to the Letters Rogatory
[19] The Respondents concede that this Court has the discretion to impose a cap on the Respondents’ costs of complying with the Letters Rogatory but submit that in these circumstances, the well-established principle that witnesses examined pursuant to letters rogatory are to be paid on a full indemnity basis applies. They rely on j2 Global Communications Inc. v. B.C., 2010 ONSC 3868 at para. 3 in support of this proposition but I note that Justice Hackland made it clear he was referring to witnesses who were “strangers to the litigation” (at para. 3). The Respondents submit that they are “strangers” to the Minnesota Action as they are not parties to that action but as I will come to, that depends on how the term “stranger” is defined in this context.
[20] Scoular submits that in considering this question, two factors are important: (1) the size and complexity of the request; and (2) the position of the respondent with respect to the litigation. I agree although in my view the size and complexity of the request is a consideration if the costs of the Respondents are to be capped as submitted by the Applicant.
[21] First of all, as part of the analysis of whether the request is unduly burdensome, payment of costs by the Applicant towards some or all of the costs of the Respondents responding to the Application can obviously reduce the burden on the Respondents.
[22] Scoular relies on a number of cases in support of its position in this regard. O.P.S.E.U. Pension Trust Fund (Trustees of) v. Clark, 2006 ONCA 20839, [2006] O.J. No. 2475 (CA) at paras. 23 - 25, is a case where the primary issue both on the hearing of the application and on appeal was the merits and scope of the request. Justice Sanderson, who heard the application, ordered that Deloitte & Touche LLP (“Deloitte”) produce a wide range of documents for use in litigation in the United States against Nortel Corp., a client of Deloitte’s. In that case Deloitte had produced evidence that the requested documents could possibly exceed a million pages and take a minimum of 1,500 hours to compile. The applicant had offered to contribute up to $100,000 towards Deloitte’s costs in that regard (at para. 9).
[23] The issue of costs per se was not commented on by Blair J.A. speaking for the court on appeal although he did say the sheer volume of the request was “troubling” (at para. 23). Justice Blair went on to observe that Deloitte is a major financial audit and consulting firm that operates worldwide, and that "there is a certain 'cost of doing business' element in the call for Deloitte to respond to the letters rogatory - an offset to the undoubtedly considerable revenues that the appellant earns from providing high level and complex auditing services to companies such as Nortel." (at para. 23) Although the offer of the payment of costs “towards” Deloitte’s expenses was apparently not in issue on appeal, the cost of responding generally to the request was and so this case does provide appellate authority for Scoular’s approach although as Mr. Staley submits, the Respondents Detlefsen and Muir are individuals and their company MD&A is a far cry from an accounting giant such as Deloitte. However, as I will come to, that ignores the fact the Respondents have the benefit of indemnification agreements with Ceres.
[24] Scoular also relies on W.R. Grace Co. v. Brookfield Development Corp., [1995] O.J. No. 1483 (OCJ (Gen. Div.)). In that case the court considered the size and complexity of the burden on the respondent, in relation to the capabilities of the respondent, focusing on the fact the respondent was a “large commercial complex … with its affiliates, parent and many companies” and that it would not be put to that much more extra clerical and research work or extra cost or business interruption that would seriously prejudice its ordinary activities (at para. 8). Again the Respondents in the case at bar are not a large commercial complex but considering what they have been asked to do, given that they have already turned over documents to Ceres considered to be relevant to this litigation it seems unlikely there would be much of a cost in either confirming all documents requested have been produced to Ceres or providing any additional documents not already produced for some reason to Ceres. There is no evidence to suggest that this would be a significant amount of documentation.
[25] In Triexe Management Group, Inc. v. FieldTurf International, Inc., [2005] O.J. No. 4359 (Sup. Ct.), a decision of McMahon J., he noted that the parties had agreed that the applicant compensate the respondent for the time necessary to review the documents to be produced. He concluded after hearing submissions as to the level of compensation and the time required to review the documents that the applicant should compensate the respondent, which he found was “an innocent third party drawn into the litigation,” at the rate of $40.00 per hour. He did not set a limit on the number of hours. (at paras. 39 and 44)
[26] As Mr. Edwards submits this decision points out the importance of a consideration of whether or not the responding party is an innocent third party drawn into the litigation. It is his position that the Respondents are not innocent third parties. In this regard he relies on Four Seasons Hotel Ltd. v. Legacy Hotels Real Estate Investment Trust, [2003] O.J. No. 1341 (Sup. Ct.), where Wilson J. found (at para. 16) that the respondent was not a neutral party and through another corporation had a direct stake in the outcome of the litigation. This was a factor in the disclosure ordered. In that case the applicant had agreed to be responsible for paying “the reasonable costs associated with obtaining copies of the requested documents” (at para. 33). Wilson J. had also already directed that the applicant prepare a list of the documents they had already obtained from other parties so that the respondent would not have to produce documents already in the possession of the applicant (at para. 23). This case is clearly distinguishable from the case at bar as there is no evidence that the Respondents have any financial interest in the outcome of the Minnesota Action, and there is no evidence that they have an interest or stake in any party to the Minnesota Action.
[27] Scoular also relies on cases where the court has set limits on the costs of preparing for and attending examinations for discovery. In Neuwirth v. DaCosta, 2014 ONSC 527, [2014] O.J. No. 636, Goldstein J. applied what he said was the usual rule, referring to AstraZeneca LP v. Wolman, [2009] O.J. No. 5355 (S.C.J.), that the applicant bear “the reasonable counsel costs … to a maximum of $5,000 per respondent” (at para. 45). No time limit was set but Justice Goldstein noted that the respondents to be questioned were referred to in only two paragraphs of a very large complaint and directed that the discovery be limited to the issues on which the letters rogatory were specifically based (at para. 25).
[28] AstraZeneca is a decision of D.M. Brown J., as he then was, where the application was to require an individual to attend an oral examination and produce documents. The application was granted in part. At para. 65 Justice Brown noted that:
As a general rule, the applicant must bear the reasonable costs of the respondent witness’ costs of preparation and attendance at his examination. That examination is scheduled to take one day to conduct. I therefore set an upper limit of $5,000 on the costs Dr. Wolman can claim for his counsel’s fees. Should the examination take more than one day, the applicants shall pay Dr. Wolman an additional counsel fee of up to $4,000 per day (or part thereof).
[29] Advance/Newhouse Partnership v. Brighthouse, Inc., [2005] O.J. No. 566 (S.C.J.) is the case that Justice Brown relied upon in support of his statement of the “general rule”. In that case Reilly J. ordered as a condition, that the respondent, a non-party, had the right to be represented by counsel at his deposition and that the cost of his counsel for preparation and attendance at the deposition be borne by the applicants up to a maximum amount of $6,000 (at para. 15). There does not appear to be any evidence as to how long the deposition would take. Furthermore, the cap on the amount does not appear to have been an issue that was argued; rather a condition imposed by Justice Reilly.
[30] In response the Respondents rely on Prenovost v. Marshall, [2015] O.J. No. 4343 (S.C.J.) where the applicant sought to obtain documents and compel the deposition of the respondent, who was an individual. Mr. Staley submits no cap was set by the court on the amount of those costs and the presiding judge retained jurisdiction over any disputes arising out of the examination. This is true but in doing so Le May J. relied on AstraZeneca for the “general rule” but failed to refer to the fact that Justice Brown had capped the amount to be paid by the applicant in that case.
Analysis - Costs of Responding to the Letters Rogatory
[31] There is no suggestion by Scoular that the Respondents are not entitled to be represented by their own counsel in responding to the Letters Rogatory, which would include Respondents’ counsel assisting with any further documentary production and preparing the Respondents for the examinations and their attendance at the examinations of the Respondents. Furthermore, they concede that the Applicant is responsible for the payment of those costs on a full indemnity basis provided there is a cap imposed by this Court of $20,000. Mr. Staly advises that the Respondents will have one counsel to represent them.
[32] The cases of Advance/Newhouse Partnership and AstraZeneca and the cases that have followed this approach of setting a cap do not make any express reference to providing that the applicants pay the cost of counsel for the respondents in complying with letters rogatory on a full indemnity basis but in my view that is clearly implicit in these decisions. In my view in each of these cases the court has chosen to put a cap on the entitlement to full indemnity costs. In my opinion, these cases truly represent the “general rule” and provide that even where the respondent is truly a “stranger to the litigation,” an entitlement to full indemnity costs is not meant to be construed as a “blank cheque”, as Leach J. referred to it, in Aker Biomarine AS v. KGK Synergize Inc., [2014] O.J. No. 96 (at para. 30). The imposition of a reasonable cap or some other means of ensuring that the Applicant is only compelled to pay the reasonable fees and disbursements incurred in responding to the Letters Rogatory is important and does not undermine, as the Respondents suggest, the principle of full indemnity, provided the proposed cap is reasonable.
[33] Although these cases where a cap has been imposed have not stated the purpose behind setting a cap, it is obvious that where the court assesses, in advance, what it considers would be reasonable costs in the circumstances, on a full indemnity basis, and sets a cap, that this avoids the potential for further costs being incurred by all parties and the waste of judicial resources in dealing with disputes arising from the assessment of fees and disbursements where no cap is set. In my view there is much merit to this approach regardless of whether or not the Respondents are truly “strangers” to the Minnesota Action.
[34] Furthermore, Scoular asserts that the Respondents are not strangers to the Minnesota Action as a result of their connection to Ceres. The Respondents submit that even though indemnification agreements have been entered into that is not evidence of their centrality to the Minnesota Action. Further, the Respondents submit that by "stranger" the courts mean a non-party to the foreign litigation and there is no dispute that the Respondents are not a party to the Minnesota Action.
[35] In my view Mr. Staley takes to narrow a view of what is meant by “stranger to the action”. On the evidence I conclude that the Respondents are not “strangers” to the Minnesota Action because in the circumstances of this case it cannot be said that they are neutral non-parties with no interest whatsoever in the outcome of the action or the parties to the action. In my opinion it is the very nature of the relationship between the Respondents and Ceres with respect to the litigation that requires that a reasonable cap of costs be set. It is clear from the affidavit of Detlefsen that I have referred to, that the Respondents intend to cooperate with Ceres in connection with the Minnesota Action. This has been confirmed by their actions since this Application was first brought by their production to Ceres of considerable documentation and the fact they have settled the terms of indemnification agreements with Ceres. I agree with Mr. Edwards that the Respondents are closer to defence witnesses than disinterested third parties. Regardless of the significance of the indemnification agreements, Detlefsen and Muir are clearly important witnesses for the Minnesota Action and the evidence is clear that they have aligned themselves with Ceres. To provide the Respondents with a blank cheque to retain counsel to respond to the Letters Rogatory would indirectly permit Ceres to prepare two important witnesses for trial, who are cooperating with Ceres, at the cost of the Applicant.
[36] Mr. Staley argues that at this stage it is not possible to know whether the Respondents’ full indemnity costs will be less than the cap proposed by Scoular of $20,000. I disagree. In my view just as some of my colleagues have done in other cases the reasonable cost, on a full indemnity basis, to respond to the Letters Rogatory can be determined now.
[37] The Respondents have already produced a large number of documents to Ceres and there is no indication that there are further documents to produce. These costs were incurred voluntarily and were presumably covered by the Respondents' indemnification agreements with Ceres. I agree with Mr. Edwards that these costs should not be retroactively passed on to the Applicant. The Applicant is not seeking any documents from the Respondents that they have already produced to Ceres, since Ceres has an obligation to produce those documents in the Minnesota Action.
[38] The Respondents have already invoiced Ceres 52 hours for producing documentation and given their stated cooperation with Ceres I expect it is unlikely that there are any further relevant documents to be produced. In any event it is unlikely there would be many. I accept that the Respondents might need the assistance of counsel to ensure they are in compliance with the documentary production requirement of the Letters Rogatory but I cannot imagine that this would be a substantial expense for reasons already stated. If the Respondents find further documents, that may well benefit Ceres in the action as well since the documents were created in the course of the Respondents’ work for Ceres.
[39] As for the examinations of Detlefsen and Muir, the time for testimony is capped at 7 hours for each examination. Even assuming 14 hours to prepare for each examination, for a total of 21 hours for each of Detlefsen and Muir, assuming $17,000 is available from the $20,000, they can be served by a lawyer charging about $400 per hour. More hours can obviously be spent at a lower hourly rate. The proposed cap in my view is reasonable. Compared to the caps in the cases I have referred to, it is very generous.
[40] If the Respondents and Ceres choose to spend more time in preparing the Respondents, then in my view it is reasonable that this cost be borne by Ceres through the indemnification agreements.
[41] For these reasons I find that the proposal by Scoular to cap the reasonable fees and disbursements payable to the Respondents for the cost of counsel in complying with the Letters Rogatory at $20,000 is reasonable.
Costs of the Application
[42] The Applicant does not seek costs of this Application from the Respondents. The question is whether or not in these circumstances the Respondents should have some or all of their costs of the Application paid by the Applicant. It is the position of the Respondents that the principle of full indemnity reimbursement also extends to the costs of responding to the Application to enforce Letters Rogatory. It is submitted that obtaining letters rogatory bears all the hallmarks of an indulgence being sought against non-parties for their assistance in litigation in which they have no interest and that as strangers to the litigation, the witnesses should not be required to suffer costs, even where the applicant is successful in enforcing the letters rogatory.
[43] I have already concluded that the Respondents are not truly strangers to the Minnesota Action and on that basis alone would deny the Respondents their costs of the Application in light of the Applicant’s success. I will however consider the decisions on the matter of who should bear the costs of the application and on what scale to see if they apply in these circumstances as the Respondents submit they should have their costs regardless of the outcome. Not all of the cases I have been referred to assist because in a number of these cases the issue of costs was not dealt with for one reason or another.
[44] In the O.P.S.E.U. Pension case, Sanderson J. ordered that costs should follow the event and awarded costs to the applicant on a partial indemnity basis because the applicant "obtained an order for virtually all the relief being sought" [2005] O.J. No. 4515 (S.C.J.) (at para. 2). In Four Seasons, Justice Wilson found that success on the application was divided and so she ordered that each party bear their own costs (at para. 34). In that case, however, she found that the respondent was not a “stranger” to the action and in fact had an indirect interest in the outcome.
[45] In j2 Global Justice Hackland awarded full indemnity costs to the respondents but that was a case where they had successfully opposed the application by the plaintiff for the issuance of letters rogatory to allow depositions to be taken of each of them for use at trial proceedings in the United States. He followed a similar course taken by Ray J. in j2 Global Communications Inc. v. Protus IP Solutions Inc., [2009] O.J. No. 5762 where the respondent also succeeded in defeating an application for relief which Justice Ray characterized as having “all the hallmarks of an indulgence being sought against a non party for assistance in its prosecution of an action in California in which the respondent has no interest” (at para. 5). On appeal of j2 Global Communications Inc. v. B.C., 2010 ONSC 3813, Hackland J.’s decision was upheld and the court refused leave to the applicant to appeal his costs order.
[46] In Neuwirth, Justice Goldstein concluded that although the applicant had succeeded on the application, it was fair and reasonable that the respondents as non-parties not be required to bear the costs of “legitimate opposition” to the application (at para. 48). He awarded full indemnity costs for one respondent for various substantive reasons and substantial indemnity costs in favour of two respondents because those respondents had been "coy about whether or not they actually possess documents. The answer to that question would have avoided some aspects of this litigation". Mr. Staley points out that in the case at bar, the Respondents have been forthcoming about the documents in their possession. I agree but it is important to consider the cases that Goldstein J. relied upon in coming to his conclusion on costs of the application.
[47] Justice Goldstein noted that there is “authority for the proposition that a non-party is entitled to full indemnification no matter what the outcome; referring to the j2 Global decisions. As I have said, however, in those cases the respondents succeeded in having the application dismissed.
[48] Justice Goldstein also referred to Oticon Inc. v. Gennum Corp., 2010 ONSC 1638, [2010] O.J. No. 1082 where he stated D.M. Brown J., as he then was, found that courts have also ordered partial indemnity costs and no costs in matters involving the examination of non-parties. However, Oticon was also a case where the applicant was unsuccessful and the authorities reviewed by Justice Brown were cases where the applicant had been unsuccessful. Justice Brown referred to the award of full indemnity costs in Hackland J.’s decision in j2 Global, and to decisions where substantial indemnity, partial indemnity and no costs had been ordered, and concluded that “the appropriate award of costs on an unsuccessful application to enforce letters rogatory will depend upon the particular circumstances of each application” at para. 3. These cases have no relevance to the case at bar as the Applicant has been wholly successful.
[49] The other decision relied upon by Goldstein J. was GST Telecommunications, Inc. v. Provenzano, [2000] B.C.J. No. 378 which was a case of a successful application. In that case the court concluded that given the individual respondent was a “stranger” to the New York Action he should not be required to suffer costs as a consequence of his “legitimate opposition” to the application, at para. 70. This decision does support the view of the law taken by Goldstein J. but does not do so on the basis of any analysis.
[50] In Aker Biomarine AS v. KGK Synergize Inc., [2014] O.J. No. 968, Leach J. had also dismissed the application for enforcing letters rogatory. She referred to Oticon and agreed with Justice Brown’s summary of the law with respect to costs of the application. She concluded that the “scale of costs to be awarded in such a case, (if any), ultimately remains a matter of discretion for the presiding judge, having regard to all the circumstances of the case” (at para. 28). Justice Leach determined that full indemnity costs should be awarded but substantially reduced them as she found the quantum claimed to be excessive and inappropriate.
[51] If I had concluded that the Respondents were truly strangers to the Minnesota Action then I would have been inclined to award them full indemnity costs for the application as was done in Neuwirth and GST Telecommunications. However, none of these cases alter my view, that given the Respondents were unsuccessful in resisting the Application and having concluded that they are not strangers to the Minnesota Action, that they ought not to be reimbursed any of their costs in resisting the Application. Having secured the indemnification agreements the only aspect of the Letters Rogatory that they contested was the issue of costs and they have been wholly unsuccessful on that issue.
[52] Mr. Staley submits that some of the costs incurred by the Respondents in connection to Scoular's Application were incurred solely as a result of Scoular's actions in that Scoular did not consult with the Respondents and did not book sufficient time for the initial return date of April 1, 2016. He argues that by failing to do so, Scoular needlessly increased the time spent and costs incurred by the Respondents. The endorsement of that day simply states that the matter was adjourned on consent and that the time for the Application be increased. There is no suggestion that the Respondents sought costs of that attendance at that time. I am also not satisfied that the Application would not have been adjourned in any event. The settlement of the Counter-Application occurred the day prior; March 31st. Both sides produced facta and books of authorities that are dated after April 1st for the argument of this costs issue. For these reasons I am not persuaded that an order for costs of this attendance ought to be made in favour of the Respondents.
Disposition
[53] For these reasons the Application is granted and an Order will go enforcing the Letters Rogatory in accordance with the draft Order attached as Appendix 'B' to the Supplemental Factum of the Applicant, save that the draft order shall provide that the Respondents will have 28 days from the date of this order, not from the Application, to comply with the terms of the order. There shall be no costs of the Application.