Court File and Parties

Court File No.: CV-16-558017 Date: 2017-03-07 Ontario Superior Court of Justice

Between: PQ LICENSING S.A., VINCENT HERBERT and JEAN-MARIE JOSI Applicants – and – LPQ CENTRAL CANADA INC. Respondent

Counsel: Geoffrey B. Shaw and Eric Mayzel, for the Applicants David M. Golden and Marco P. Falco, for the Respondent

Heard: In Writing

V.R. CHIAPPETTA J.

Costs Judgment

[1] The respondent was the successful party on the appeal from the decision of an arbitrator dated June 10, 2016. In my oral reasons of January 30, 2017, I rejected each of the six grounds of appeal raised by the applicant. The applicant submits that no costs be awarded in respect of the appeal. In the alternative the applicant submits that costs of the respondent be limited to $12,000. The respondent submits that it is entitled to costs on a partial indemnity scale in the amount of $28,029.42.

[2] I have carefully considered the submissions of the parties and the factors set out in Rule 57.01(1) of the Rules of Civil Procedure. I see no reason why the respondent should not be awarded its costs on a partial indemnity scale in the amount of $28,029.42. I make this conclusion and exercise my discretion in accordance with section 131 of the Courts of Justice Act, R.S.O, 1990, c. C-43 for the following reasons taken together:

1. The overriding principle of reasonableness.
2. The respondent was the successful party.
3. The matter at issue was of significant importance to both parties; the result permitted the respondent to continue to pursue a damages claim against the applicant in the amount of $18M.
4. The legal issues was complex; involving an interpretation of the franchise agreement against the jurisprudence of the Limitations Act, 2002, S.O. 2002, c. 24, Sched. B.
5. The hourly rates charged by counsel for the respondent were reasonable considering counsel’s experience and reflect counsel’s institutionally-reduced hourly rate.
6. The time expended by counsel for the respondent was reasonable given the complexity of the issues raised by the appeal. While the appeal involved the same legal issues as the arbitration, but for the issue of the appropriate standard of review, significant developing research and analysis on the issue of s5(1)(iv)(a) of the Limitations Act was required. The issue of the standard of review was not conceded. Time was properly expended to develop the submission on this issue.
7. The parties to an appeal should reasonable expect to pay the partial indemnity costs of the successful party if, as here, the partial indemnity costs are reasonable and proportional.

[3] Costs of the appeal are therefore fixed in the amount of $28,029.42, payable by the applicant to the respondent within thirty days.

V.R. Chiappetta J. Released: March 7, 2017