Court File and Parties

COURT FILE NO.: 14-62642 DATE: 2017/05/19 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: NYLENE CANADA INC. – Plaintiff/Respondents v. CORPORATION OF THE TOWN OF ARNPRIOR – Defendant/Moving Party

BEFORE: R. Smith J.

COUNSEL: Pasquale Santini, for the Plaintiff/Respondents Paul A. Webber Q.C. and Mélanie H. Levesque, for the Defendant/Moving Party

HEARD: By Written Submissions

Decision on Costs

[1] The defendant/moving party (“defendant”) seeks costs of $43,723.27 on a substantial indemnity basis or alternatively $32,792.43 on a partial indemnity basis for a summary judgment motion on which it was successful.

[2] The plaintiff, responding party (“plaintiff”) submits that costs on a partial indemnity basis closer to the amount of its costs outline, which was $9,840.00 should be awarded.

Factors

[3] The factors to be considered when fixing costs are set out in Rule 57 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 and include in addition to success, the amount claimed and recovered, the complexity and importance of the matter and the principle of proportionality, the conduct of any party which unduly lengthened the proceeding, whether any step was improper, vexatious or unnecessary, or taken through negligence mistake or excessive caution, a party’s denial or refusal to admit anything, any offer to settle, the principle of indemnity, scale of costs, hourly rate claimed in relation to the partial indemnity rate set out in the Information to the Profession effective July 1, 2005, the time spent, and the amount that a losing party would reasonably expect to pay.

Success, Complexity and Importance

[4] The defendant was successful on its motion and the matter was quite complex as it involved the ability of a municipality to charge for waste water sources based on the amount of water supplied. Extensive materials were filed as evidence by the Town of Arnprior. The issue was very important to the Town.

Reasonable Expectations of Unsuccessful Party

[5] The plaintiff was not required to spend as much effort on the motion as the Town, because it relied essentially on one decision of Kershman J. involving the Town of Prescott. The Town was required to produce evidence of how it charged for waste water services including an engineering study and to show the reasonableness of it approach.

[6] I find that it was reasonably expected that the Town would have spent more time on this motion than the plaintiff in the circumstances and that the plaintiff’s bill of costs is not an appropriate comparator.

Scale of Costs

[7] In the circumstances costs on a partial indemnity basis are appropriate.

Time Spent

[8] The defendant’s senior counsel spent 15.6 hours and the junior counsel spent 246.9 hours. While the issues were complicated the amount of time spent by junior counsel is beyond the amount of time that the losing party would reasonably expect to pay. The hourly rates are reasonable. As a result the amount of costs for preparation time will be reduced.

Disposition

[9] Having considered the factors, the complexity and importance of the issue to the Town, the plaintiff is ordered to pay costs of $20,000 plus HST, plus disbursements of $195.88 inclusive of HST.

Mr. Justice Robert J. Smith Date: May 19, 2017

COURT FILE NO.: 14-62642 DATE: 2017/05/19 ONTARIO SUPERIOR COURT OF JUSTICE

RE: NYLENE CANADA INC. – Plaintiff/Respondent AND CORPORATION OF THE TOWN OF ARNPRIOR, Defendant/Moving Party

BEFORE: R. Smith J.

COUNSEL: Pasquale Santini, for the Plaintiff/Respondents Paul A. Webber Q.C. and Mélanie H. Levesque, for the Defendant/Moving Party

DECISION ON COSTS R. Smith J.

Released: May 19, 2017