Court File and Parties

Court File No.: CV-15-530476-00 Date: 2017-08-29 Superior Court of Justice - Ontario

Re: Broadgrain Commodities Inc., Plaintiff And: Continental Casualty Company, Defendant

Before: P. J. Monahan J.

Counsel: Rui M. Fernandes, for the Applicant Marc D. Isaacs and Hilary Weise, for the Defendant

Heard: July 11, 2017

Costs Endorsement

[1] On August 3, 2017, I granted summary judgment in favour of Continental Casualty Company, carrying on business as CNA Canada (“CNA”), dismissing the action brought by Broadgrain Commodities Inc. (“Broadgrain”). I also awarded costs on a partial indemnity scale to CNA and, in the event that the parties could not agree on quantum, invited costs submissions.

[2] Counsel for CNA submits that in fixing costs pursuant to r. 57.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, the following factors are relevant:

(a) CNA was wholly successful in its summary judgment motion;

(b) The proceeding was complex both factually and legally. It considered events that occurred during an ocean voyage from Nigeria to China, and involved scientific evidence of damage to sesame seeds provided by two independent experts. The action also involved a large volume of document production including cargo preparation and quality control records, shipping and weather records for the ocean voyage, as well as marine survey reports from China. Two days were spent examining the parties at the examinations for discovery;

(c) The legal issues required significant research, including with respect to the definition of “insurable interest” under the Canadian Marine Insurance Act, S.C. 1993, c. 22, and required a review of Canadian, American and United Kingdom authorities; and

(d) The action involved a claim for $550,000 USD, and was of significance to CNA.

[3] CNA’s actual legal fees were $57,169, plus HST of slightly more than $7,400 and disbursements of $12,088.17. It seeks costs on a partial indemnity basis at 65% of the fees incurred, plus HST and disbursements.

[4] In my view, the amount of time spent and the fees charged by counsel to CNA are reasonable. I also accept the relevance and applicability of the other factors set out above. I would fix costs at 60% of the actual fees, namely, $34,301.40, plus HST of $4,459.18 and disbursements of $12,088.17, for a total of $50,848.75, payable by Broadgrain to CNA within 30 days.

P. J. Monahan J.

Date: August 29, 2017