CITATION: Cargojet Airways v. Aveiro et. al., 2016 ONSC 4927
COURT FILE NO.: CV-13-43611
DATE: 2016-08-08
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
CARGOJET AIRWAYS LTD.
Plaintiff
Christopher Stanek, for the Plaintiff/Responding Party
- and -
AVEIRO CONSTRUCTORS LIMITED and HATCH MOTT MACDONALD LTD./ HATCH MOTT MACDONALD LTEE.
Defendants
- and -
Emily Stock, for the Defendant/Moving Party, Hatch
Brendan Hughes, for the Defendant/Moving Party, Aveiro
GREAT NORTHERN INSULATION SERVICES LTD., ERNEST H. HODGSON and LMDG BUILDING CODE CONSULTANTS LTD.
Third Parties
HEARD: Jan. 28 & Feb. 29, 2016
The Honourable Justice C.D. Braid
RULING ON COSTS
I. OVERVIEW
[1] Cargojet Airways Ltd. is a commercial airline carrier that provides air cargo services. Cargojet hired Aveiro Constructors Limited as a general contractor to design and construct a new aircraft hangar. In turn, Aveiro subcontracted with Great Northern Insulation Services Ltd. to supply and install insulation to the underside of the Hangar’s roof. Cargojet also retained Hatch Mott MacDonald Ltd. to administer the Hangar’s construction and ensure technical compliance.
[2] Almost immediately after construction of the Hangar was completed in 2009, portions of insulation began falling off the underside of the roof. Cargojet sued Aveiro and Hatch, but that action was commenced outside of the limitation period.
[3] This ruling addresses the costs of the action, which was dismissed on a motion for summary judgment (Cargojet Airways v. Aveiro et. al., 2016 ONSC 2356). For the reasons that follow, I find that Aveiro is entitled to costs in the amount of $28,689.08 and Hatch is entitled to costs in the amount of $31,880.61.
II. ANALYSIS
[4] Aveiro seeks partial indemnity costs of $36,437.82 (calculated at 75 percent of actual fees). Hatch seeks substantial indemnity costs of $42,507.49; or, alternatively, partial indemnity costs of $31,880.61 (calculated at 60 percent of actual fees). Hatch also asks for an additional $5,000 as a nominal fee for work completed by in-house counsel. In addition to their own costs, Aveiro and Hatch ask that the court order Cargojet to pay, to the defendants, a portion of Great Northern’s costs.
[5] Cargojet argues that the usual rate for partial indemnity costs in Ontario is 60 percent of the full amount billed; therefore an appropriate amount for Aveiro’s costs is $28,689.08. Cargojet disputes Hatch’s request for substantial indemnity costs and its claim regarding in-house counsel work. Finally, Cargojet states that it made no claim against Great Northern, and therefore should not be required to pay third party costs.
[6] In determining quantum, the court is to consider the factors set out in Rule 57.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, as well as s. 131 of the Courts of Justice Act, R.S.O. 1990, c. C.43. I have considered those factors.
[7] I have also considered the principles in Boucher v. Public Accountants Council for the Province of Ontario (2004), 2004 CanLII 14579 (ON CA), 71 O.R. (3d) 291 (C.A.). The fixing of costs should reflect what the court views as a fair and reasonable amount to be paid, rather than any exact measure of the actual costs to the successful litigant.
[8] In the Statement of Claim, Cargojet sought $1.6 million in general damages for breach of contract and/or negligence. The defendants, Aveiro and Hatch, both moved for summary judgment based on limitation period arguments. The parties filed extensive affidavits and supporting documents; transcripts of cross-examinations; factums; and books of authorities. The limitation period issue was factually complex. The legal issues were of moderate complexity. The defendants were entirely successful on the motions for summary judgment.
[9] Hatch submits that it should be awarded substantial indemnity costs because it instructed Cargojet to bring an action before the limitation period expired. Hatch also argues that the action against it was “ill-conceived”. However, elevated costs should only be granted in exceptional cases: Davies v. Clarington (Municipality), 2009 ONCA 722, [2009] O.J. No. 4236 (C.A.), at para. 28. This is not one of those cases.
[10] There were no offers to settle and no allegations made that would attract a higher cost award. Therefore, Hatch is not entitled to substantial indemnity costs.
[11] Hatch also requests an additional $5,000 for the work of in-house counsel. However, no documentation has been provided to substantiate what work was done by in-house counsel. I decline to grant this additional costs request.
[12] I also decline to order that Cargojet pay a portion of Great Northern’s costs to the defendants. Great Northern was not a party to the motions before me. There is an insufficient basis upon which to make a costs award payable to the defendants for Great Northern’s costs.
[13] Having reviewed the detailed Bills of Costs of Aveiro and Hatch, I find that the overall number of hours spent is reasonable and the rates claimed are commensurate with counsel’s experience. Work was often delegated to junior lawyers or students, which kept costs modest. The overall costs are appropriate and reasonable.
[14] I find that this is a suitable case to award costs on a partial indemnity scale, which should be calculated at 60 percent of actual fees. Aveiro is entitled to costs in the amount of $28,689.08 and Hatch is entitled to costs in the amount of $31,880.61.
III. CONCLUSION
[15] Cargojet shall pay costs to Aveiro in the amount of $28,689.08, inclusive of taxes and disbursements. In addition, Cargojet shall pay costs to Hatch in the amount of $31,880.61, inclusive of taxes and disbursements. These costs are payable forthwith.
Braid, J.
Released: August 8, 2016
CITATION: Cargojet Airways v. Aveiro et. al., 2016 ONSC 4927
COURT FILE NO.: CV-13-43611
DATE: 2016-08-08
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
CARGOJET AIRWAYS LTD.
Plaintiff
- and –
AVEIRO CONSTRUCTORS LIMITED and HATCH MOTT MACDONALD LTD./ HATCH MOTT MACDONALD LTEE.
Defendants
- and –
GREAT NORTHERN INSULATION SERVICES LTD., ERNEST H. HODGSON and LMDG BUILDING CODE CONSULTANTS LTD.
Third Parties
RULING ON COSTS
CDB
Released: August 8, 2016