Court File and Parties

Court File No.: 17-60671 Date: 2017/05/08 Superior Court of Justice – Ontario

Re: ENBRIDGE PIPELINES INC., Plaintiff And: TODD WILLIAMS and WAYNE HILL, Defendants

Before: The Honourable Justice D.A. Broad

Counsel: A. Matheson, for the Plaintiff R. Dettlor and D. Shiller, for the Defendants

Costs Endorsement

[1] The parties have been unable to agree upon the question of costs in relation to the plaintiff’s motion for an interlocutory injunction heard March 7 and 8, 2017. The plaintiff has now delivered written submissions on costs as directed in my Endorsement dated March 15, 2017. The defendants have not delivered any submission on costs.

[2] The plaintiff seeks costs of the motion on a partial indemnity basis in the sum of $25,387.81, comprised of fees in the sum of $18,725.00, disbursements in the sum of $1,378.57 and HST in the sum of $2,363.52.

[3] The plaintiff submits that the factors in subrule 57.01(1) all support the award of costs sought. In particular, the plaintiff says that the defendants raised several significant issues including an assertion of treaty rights, the duty to consult and various constitutional issues which substantially increased the time required to prepare for and argue the motion. The plaintiff also points out that a considerable amount of time was spent on the motion arguing about the sufficiency of the plaintiff’s evidentiary record when the defendant Mr. Williams had admitted to trespassing and obstructing the plaintiff.

[4] The plaintiff says that it has significantly reduced the number of hours used to calculate the partial indemnity costs from that actually spent.

[5] Section 131(1) of the Courts of Justice Act, R.S.O. 1990, c. C.43, as amended, provides that "subject to the provisions of an Act or rules of court, the costs of and incidental to a proceeding or a step in a proceeding are in the discretion of the court, and the court may determine by whom and to what extent the cost shall be paid."

[6] The factors to be considered by the court, in the exercise of its discretion on costs, are set forth in sub-rule 57.01(1) of the Rules of Civil Procedure, notably para. (0.a) the principle of indemnity and para. (0.b) the amount of costs that an unsuccessful party could reasonably expect to pay.

[7] The Court of Appeal has observed that modern costs rules are designed to foster three fundamental purposes: (1) to indemnify successful litigants for the cost of litigation; (2) to encourage settlements; and (3) to discourage and sanction inappropriate behavior by litigants (see Fong v. Chan, [1999] O.J. No. 3707 (Ont. C.A.) at para. 24).

[8] The usual rule in civil litigation is that costs follow the event and that rule should not be departed from except for very good reasons (see Gonawati v. Teitsson, [2002] CarswellOnt 1007 (Ont. C.A.), and Macfie v. Cater, [1920] O.J. No. 71 (Ont. H.C.) at para 28).

[9] It is well known that the overall objective in dealing with costs is to fix an amount that is fair and reasonable for the unsuccessful party to pay in the particular circumstances of the case, rather than an amount fixed by the actual costs incurred by the successful party. The expectation of the parties concerning the quantum of costs is a relevant factor to consider. The court is required to consider what is "fair and reasonable" having regard to what the losing party could have expected the costs to be (see Boucher v. Public Accountants Council (Ontario), [2004] O.J. No. 2634 (Ont. C.A.) at para. 26 and Coldmatic Refrigeration of Canada Ltd. v. Leveltek Processing LLC, [2005] O.J. No. 160 (Ont. C.A.)).

[10] Importantly, the case law directs that a costs award must represent a fair and reasonable amount that should be paid, rather than an exact measure of the actual costs, must be consistent with what the unsuccessful party might reasonably have expected to have to pay, and must reflect some form of proportionality to the actual issues argued, rather than an unquestioned reliance on billable hours and documents created (see Mason v. Smissen, [2013] O.J. No. 4229 (Ont. S.C.J.) at paras. 5 and 6 and the cases therein referred to).

[11] The court is hampered in discerning what the defendants’ reasonable expectations were in respect of costs by the absence of any submissions on their behalf or any Costs Outline from them.

[12] As indicated, the defendants have not delivered any costs submissions and must be taken as not disputing the plaintiff’s application of the factors in subrule 57.01(1) nor the time spent or hourly rates claimed.

[13] There is no basis for a finding that the amount claimed by the plaintiff is unreasonable or disproportionate.

[14] The plaintiff has asked that the costs be awarded severally for each defendant and that $18,387.81 of the costs be payable by Mr. Williams and the remaining $7,000 be payable by Mr. Hill, in recognition of their respective involvement in the obstruction of the plaintiff.

[15] It is therefore ordered that Mr. Williams pay to the plaintiff $18,387.81 and the defendant Mr. Hill pay to the plaintiff the sum of $7,000.00 in respect of costs.

[16] These amounts shall be paid within 30 days of the date hereof, if demanded by the plaintiff.

D.A. Broad, J Date: May 8, 2017