Court File and Parties

CITATION: Ernewein v. Honda Canada Inc., 2017 ONSC 4712

COURT FILE NO.: CV 14-0282

DATE: 20170803

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: DAVID W. ERNEWEIN, Plaintiff (Responding Party)

and:

Honda Canada Inc., operating as Honda of Canada MFG, PAUL CURRIE, LORI VAN VALKENBURG, JOHN DOE(S), Defendants (Moving Party)

BEFORE: The Honourable Mr. Justice J.R. McCARTHY

COUNSEL: Marc Lemieux, counsel for the Plaintiff/Respondent

Greg McGinnis, counsel for the Defendants/Applicants

HEARD: In writing

costs ENDORSEMENT

[1] The Defendants sought leave to appeal from the order of Mr. Justice DiTomaso dated February 17, 2017. In that order, the motion judge: a) dismissed Honda’s motion for partial summary judgment; b) ordered Honda to produce documents relevant to claims for overtime dating back to 1997; and c) ordered Honda to produce a document over which solicitor-client privilege was claimed.

[2] The leave motion was brought in writing and was opposed. On June 16, 2017, I dismissed the leave motion and invited the parties to make written submissions in respect of costs. I have now received and considered those written submissions.

[3] I see no reason to depart from the normal approach to costs: that a successful party on a motion should be entitled to recover its costs. The moving party made a compelling, logical if ultimately unsuccessful argument. The responding party put forth a fulsome, thoughtful and ultimately convincing response.

[4] The leave motion was of moderate complexity. It called for a careful of review of the motion’s judge reasons together with a consideration of some areas of law including limitations, solicitor-client privilege and of course, recent developments in the law of summary judgment.

[5] The moving party is a sophisticated corporate party. It must have expected that an unsuccessful leave motion on an interlocutory order would likely result in a costs award against it.

[6] The responding party seeks costs in the amount of $6,535.95. The moving party suggests that cost should be in the cause of the action; in the alternative, the Defendants suggest that costs should not exceed $3,000.00.

[7] I am prepared to award costs to the Plaintiff/Responding party, fixed and payable forthwith in the amount sought by him. The claim is not exorbitant; it is entirely proportional to the importance of the issues and to the manner and effort involved in responding to the leave application.

[8] There shall be an order to go that the Defendants/Moving party pay to the Plaintiff/Responding party his costs of the leave motion in the amount of $6,535.95 inclusive of HST and disbursements. Those costs are fixed and payable forthwith.

J. R. McCarthy J.

Date: August 3, 2017